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How Not to Negotiate an ESI Protocol? Say it is “Mandatory”; and, Demand That Discussions be Recorded
This article examines key missteps in Wilbert v. Pyramid Healthcare, where the plaintiff’s insistence on recording a Rule 26(f) conference and imposing a “mandatory” ESI plan were deemed improper. The court’s order highlights the necessity...
Discretionary Stay of Discovery Pending Decision on Dispositive Motion
In MJ Enterprise Holdings v. Spiffy Franchising, the court granted a stay of discovery pending a motion to compel arbitration. The ruling emphasized judicial economy and the Federal Arbitration Act’s preference for arbitration.
Uber Technologies – Another Hyperlink Decision
A recent court decision in In Re: Uber Technologies, Inc. Passenger Sexual Assault Litigation addresses the ongoing discovery disputes over hyperlinked documents in ESI. The ruling clarifies metadata obligations and raises evidentiary concerns regarding the...
ESI Protocol Deemed Controlling
The Morse decision highlights the risks of failing to comply with a court-ordered ESI Protocol. Courts may enforce such agreements strictly, but timely motions for modification can provide relief.
Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent
A federal court ruled that tower-dump search warrants violate the Fourth Amendment, citing recent geofence warrant precedent. The decision highlights concerns over probable cause, particularity, and mass data collection.
Requesting Parties Are Denied “Input” Into Producing Party OpenAI’s Search Terms
A federal court in Tremblay v. OpenAI reaffirmed that requesting parties lack the right to control the producing party’s search term formulation, emphasizing Sedona Principles 6 and 7 and the necessity of cooperation in eDiscovery.
Agreement in ESI Protocol to Produce All “Hits,” Without Review
Courts continue to address whether an agreement to run search terms in an ESI protocol obligates parties to produce all resulting “hits.” Recent rulings, including Rouse v. H.B. Fuller Co. and Spivey v. BP Exploration,...
“Self Help” Discovery Results in Striking of Wrongfully Obtained Evidence
The Campbell v. Aberdeen FCU decision underscores the dangers of self-help discovery in litigation. The court struck improperly obtained evidence and reaffirmed that litigants must follow ethical guidelines rather than resorting to extralegal means.
Li. v. Merck Addresses: Trigger; Spoliation Discovery; and, Document Unitization
The court in Li v. Merck tackled crucial discovery issues, including when the duty to preserve evidence is triggered, the scope of discovery on potential spoliation, and challenges related to document unitization. The ruling highlights...
Court Reviews Document Unitization Dispute
In Li v. Merck & Co., Inc., the court examined issues of document unitization, where improperly formatted document production can hinder discovery. The ruling underscores the need for clear ESI protocols to avoid inefficiencies and...
Spoliation Discovery Permitted
In Li v. Merck & Co., the court granted a motion to compel spoliation interrogatories, requiring the plaintiff to fully respond about potential document destruction. The ruling highlights key discovery obligations in employment disputes.
Consulting an Attorney Did Not Trigger the Duty to Preserve
In Li v. Merck & Co., Inc., the court held that consulting an attorney to understand one’s rights does not necessarily mean litigation was anticipated, delaying the duty to preserve.