Philip Favro

October 18, 2018
Using FRCP 26(f)

Using the FRCP 26(f) Conference to Effectively Address ESI Preservation Issues

Great emphasis has been placed over the years on the importance of the Federal Rule of Civil Procedure 26(f) conference. This is because FRCP 26(f) offers parties a forum for addressing discovery issues such as the preservation of particular sources of electronically stored information (ESI). Courts expect parties to use the 26(f) conference to discuss issues regarding the preservation of obvious forms of relevant ESI (like email), as well as those that are not so obvious (like web browser history or messaging application data). Raising these preservation issues at the 26(f) may determine whether key evidence is actually retained for litigation.
September 6, 2018
Importance Of Custodian Interviews

Vegas Court Issues Adverse Inference, Spotlights the Importance of Custodian Interviews

The summer of 2018 has been a boon for eDiscovery case law, with several courts spotlighting any number of best practices for addressing discovery issues. One such best practice is the role effective custodian interviews play in establishing a defensible preservation strategy. Fulsome custodian interviews are essential for ensuring that relevant electronically stored information (ESI) is preserved. Such interviews are characterized by exhaustive questioning on any number of topics including traditional and newer sources of ESI.
August 30, 2018
SF Court Rejects ESI Discovery Sanctions

SF Court Rejects eDiscovery Sanctions, Provides Guidance on Defensible Preservation

One of the most compelling eDiscovery issues facing litigants and lawyers is the prospect of sanctions for failures to preserve relevant ESI. Under Federal Rule of Civil Procedure 37(e), sanctions may not issue unless the moving party can show that the preserving party lost relevant ESI after a duty to preserve attached. The movant must also demonstrate that the preserving party neglected to take “reasonable steps” to keep the ESI and that it “cannot be restored or replaced through additional discovery.”
August 23, 2018
Navigating Stormy Social Media Discovery

Safely Navigating the Stormy Seas of Social Media Discovery

Social media is used by billions of people for personal and professional purposes. Our pocket-sized cell phones provide a gateway for instant connection and gratification through social media, at any time and in any place. Individuals use social media to share their achievements, family vacation photos, political views, and favorite videos. Organizations leverage social media to reach prospective consumers. Nefarious actors have even exploited social media to spread misinformation and sow distrust, with global implications.
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