Failure to Comply with Discovery Obligations Can Lead to ‘Case-Killing’ Sanctions
Factual Background
Plaintiffs are former employees of Federal Reserve Bank of New York (Federal Reserve) whose employment was terminated when they refused to comply with Defendant’s requirement that its employees be vaccinated against Covid-19. Dkt. No. 24. Plaintiffs alleged that their terminations violated the Religious Freedom Restoration Act; the Free Exercise Clause of the First…
Spoliation and the Evolution of Case Law
In Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, __ P.3d __ (Wash. Ct. App. Mar. 27, 2023), the Washington Court of Appeals, Division 1, discusses the evolution of Washington case law on spoliation of evidence and details the circumstances justifying the imposition of spoliation sanctions in the jurisdiction. Interestingly, the parameters…
Current Approaches to ‘Discovery on Discovery’ Part II
Courts have recognized the perils of discovery on discovery and have sought to regulate the practice to prevent the “danger[s] of extending the already costly and time-consuming discovery process ad infinitum.” Am. W. Bank Members, L.C., 2021 U.S. Dist. LEXIS 218480, at *5. As a baseline, many courts have held that failure to show…
Current Approaches to ‘Discovery on Discovery’ Part I
“We can’t go on together with suspicious minds”—that is the premise of “discovery on discovery.” With suspicion on the mind, a party may believe that its opponent has wrongfully withheld information, documents, or other materials in discovery, and therefore may seek to have discovery on discovery. Discovery on discovery, also referred to as…
Emojis in eDiscovery
Emojis Pose Challenges to Lawyers, Juries & Discovery Specialists
We have all used emojis. Whether in our text messages or in our IMs, these wordless communications are commonplace. In fact, by some estimates, more than 10 billion emojis are sent every day in various electronic messaging mediums. With the use of chat and mobile platforms…
Stipulated ESI Protocols
In re Diisocyanates Antitrust Litig., MDL 2862 (W.D. Pa. Jan. 26, 2023), is a multidistrict litigation concerning an alleged conspiracy to reduce supply and increase prices for methylene diphenyl diisocyanate (MDI) and toluene diisocyanate (TDI), precursor ingredients for the manufacture of polyurethane foam and thermoplastic polyurethanes.
During discovery, the parties filed various motions with…
eDiscovery Workflows Part III
Data collection[1] can be technically rigorous and complex because it involves extracting potentially relevant electronically stored information (ESI) from native sources for processing, review, and production. Recognizing this complexity, an effective collection strategy likely involves both legal and IT professionals.
Once your team is established, you should decide what, among the materials preserved, should…
eDiscovery Workflows Part II
This is the second post in a three-part series dedicated to discussing considerations at each stage of the eDiscovery process. Today’s post focuses on identifying and interviewing custodians.
Because it is critical to assess the nature and extent of a client’s electronically stored information (ESI), attorneys must identify ESI custodians[1] and find out what…
eDiscovery Workflows Part I
It can be time-consuming to create workflows with each new litigation. And so, we offer three blog entries dedicated to considerations at each stage of the eDiscovery process. Specifically, over the next three posts we will explore workflow considerations for each of: Preservation and Legal Hold Workflow; Custodian Identification and Interview; and Collecting and Producing with…