Philip Favro
November 23, 2020
We are at the five-year mark of rules changes designed to emphasize proportionality in federal civil discovery practice. Since December 1, 2015, many courts have examined the six proportionality factors memorialized in Federal Rule of Civil Procedure 26(b)(1) to measure the appropriateness of discovery. Of those factors, cost—the expense and time required to comply with a discovery response—remains the most significant in terms of determining whether a responding party must comply with a disputed discovery request.
October 28, 2020
Organizations have begun to realize the value of implementing defensible disposition programs to eliminate data that has low value. When properly handled, disposition programs can reduce the costs and risks associated with retaining data stockpiles. However, disposition initiatives that lack safeguards to ensure relevant information is preserved for litigation could leave an organization vulnerable to disaster. The recent terminating sanctions order from Estate of Moreno v. Correctional Healthcare Companies spotlights this point, along with key steps companies should consider to ensure disposition initiatives are truly defensible.
September 21, 2020
A new technology-assisted review (TAR) case—Livingston v. City of Chicago—provides instructive guidance on any number of key issues surrounding the use of TAR. From affirming the notion of Sedona Principle Six and approving the use of search terms to pre-cull a data set to emphasizing the importance of not holding TAR to a higher standard than other search and review methods, Livingston provides additional clarity on issues sometimes clouded by conflicting TAR case law.
August 20, 2020
With so many lawyers focused on COVID-19, it would be easy to overlook the significant case law developments on electronic discovery that have transpired so far in 2020. Courts have issued any number of instructive orders on eDiscovery issues ranging from metadata production and technology-assisted review to cost shifting and sanctions. Three particularly compelling topics addressed by recent cases include: (1) native productions of Excel spreadsheets without relevance redactions; (2) an ESI sanctions order that rejects judicial reliance on inherent authority in favor of Federal Rule of Civil Procedure (FRCP) 37(e); and (3) the impropriety of Federal Rule of Evidence (FRE) 502(d) non-waiver orders that result in the compelled production of privileged information.