July 31, 2014
Judges have been using a wide variety of remedies and sanctions in discovery cases. Beyond the usual orders of attorney fees, fines, adverse inferences, and limitations on use of evidence, some judges have been especially creative. Educational remedies, for example, have included orders for payments to support e-discovery programs, and orders to attend such programs.
July 28, 2014
The District of Nevada has held that a party improperly used predictive coding, and should produce all documents containing keyword hits, in Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (July 18, 2014) (amending Order of May 19, 2014). Although the court rejected use of predictive coding in this case, the lesson for future litigants is simply this: Don’t agree to a discovery protocol if you have not made efforts to understand the potential burdens associated with it.
July 28, 2014
Do you have a great memory? Unless you can remember what you had for breakfast every day for the last six months, you need to document each and every decision and action as you move along your discovery journey towards compliance. When something goes wrong in discovery, attorneys who do not carefully document their process frequently rely on emails and notes jotted into a legal pad to piece together the story of who did what and why.
June 27, 2014
The Sedona Conference Cooperation Proclamation has now been around for over five years, been endorsed by judges in at least 30 states plus the District of Columbia, and has been cited in dozens of opinions by judges wishing to make discovery efficient and civil. In other words, it’s at your own risk that you disregard the Proclamation’s principle that “Cooperation in discovery is consistent with zealous advocacy.”
June 4, 2014
If you’re using your document review tool just to view and code documents, consider reevaluating your tool or your process. Cutting edge discovery platforms offer tools to holistically manage many aspects of discovery. There are tools to efficiently cull and search documents, implement defensible quality controls, manage multiple workflows, organize case docket files, create dynamic fact outlines and trial prep kits, and predict ultimate discovery costs.