e-Discovery
Creatively, efficiently, and cost-effectively assisting clients and law firms with all aspects of electronic discovery, information governance, cybersecurity, and litigation readiness and planning.
Electronically stored information (ESI) is the lifeblood of most businesses today. From cloud computing resources and data storage to emails and information governance, companies rely on electronic information to conduct, record, and drive their business transactions.
At the same time, courts are becoming increasingly stringent in their requirements to preserve and produce ESI during the discovery phase of litigation. Businesses must, therefore, carefully manage where and how electronic information is stored and establish information governance programs that position the company to readily and affordably comply with potential litigation discovery obligations, privacy obligations, and data security expectations.
If not properly controlled, e-discovery’s costs, burdens, and risks can overshadow the substantive issues involved in litigation or government investigations. Recognizing the overwhelming risks that come with the mismanagement of ESI, Farrell Fritz devotes a substantial amount of attention to assisting clients in all aspects of e-discovery.
Comprehensive, Cost-Effective Approach
Farrell Fritz offers clients an array of services, including litigation readiness planning and all aspects of e-discovery and information governance, as well as litigation support, including motion practice and trials.
Litigation Readiness
Companies often overlook the importance of putting proper procedures and protocols in place prior to becoming involved in a litigation and/or investigation. Farrell Fritz can work with clients to design response plans for litigation, government or regulatory investigations that are tailored to their business, records, and litigation needs.
Best Practice e-Discovery Protocols
There are ample cases involving sanctions and “adverse inference” instructions levied against companies and their counsel for failing to adequately preserve and produce potentially relevant ESI. Companies face dangers associated with both the over- and under-preservation of data. Realizing the expense and burden that is associated with e-discovery, our attorneys design client-specific “best practice” protocols to protect clients from these pitfalls. In cases where Farrell Fritz is not primary litigation counsel, attorneys with the firm can serve as special discovery counsel to assist other law firms and their clients in achieving quality, cost savings, and consistency in their discovery practices.
Our attorneys take a reasonable and targeted approach that ensures clients preserve sources of relevant information while minimizing costs and business interruption. We use industry-leading technologies provided through outside vendors along with internal resources to provide tailored, proportionate, and defensible preservation processes.
We counsel clients and their primary counsel on litigation-related issues such as:
- Developing defensible record retention and collection plans
- Processing, reviewing, and analyzing electronic and hard copy data
- Production of e-data
- Responding to written discovery and motion practice
Our depth of knowledge allows us to tailor our approach to the specific needs of each individual matter. We leverage our relationships with industry leading third-party e-discovery vendors to ensure our clients receive the most responsive, cost-effective, and productive e-discovery solutions. This customized approach results in increased efficiency and significant cost savings for our clients.
Professionals
Recent Blog Posts
Two-Steps and Voila: How To Authenticate Text Messages
When confronted with an issue of first impression – how to authenticate text messages – the Colorado Court of Appeals…
September 15, 2021
September 15, 2021
Fit For Discovery: The Discoverability of Wearable Devices
It is estimated that more than 100 million people are wearing an Apple Watch* and another approximately 31 million people…
September 01, 2021
September 01, 2021
The Invaluable Benefits of Multi-Factor Authentication
The need to input a username and password when logging into a computer is a “single factor” authentication. But, from…
August 04, 2021
August 04, 2021
Big Law’s Internal Audit of Associate Billing Reveals Padded Bills Associated with Document Review
We have heard it many times before – document review in today’s e-ubiquitous world is expensive. But imagine a client’s…
July 01, 2021
July 01, 2021
Boilerplate Objections and Discovery Games Require Little Effort but Result in Big Sanctions
Bursztein v Best Buy Stores, L.P., (2021 WL 1961645 [SD NY 2021]) involves a personal injury lawsuit arising from plaintiff…
June 09, 2021
June 09, 2021
Just When You Thought You Understood ESI…
Riddle me this: Is a document that resides on your network and which you embed in an email via a…
April 28, 2021
April 28, 2021
When Does My Duty to Preserve End?
Generally, a litigation hold letter* will issue to preserve documents and information potentially relevant to a reasonably anticipated lawsuit. However,…
April 15, 2021
April 15, 2021
Cooperation and Collaboration in E-Discovery is Still the TARget
My February 17th blog, “Judges Make the Case for TAR” discussed the widespread acceptance by federal courts of technology assisted…
March 31, 2021
March 31, 2021
Courts Won’t Go “Where Angels Fear to Tread” When Deciding On Search Term Issues
Employing search terms to identify documents relevant to a lawsuit is a commonly accepted practice. However, issues inevitably arise during…
March 17, 2021
March 17, 2021
Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging
There is an ever-increasing volume of data generated by businesses. In an effort to reduce storage costs and ameliorate privacy…
March 04, 2021
March 04, 2021
Judges Make the Case for TAR
Litigants often disagree about which method of identifying potentially responsive electronically stored information (“ESI”) is best. Specifically, the use of…
February 17, 2021
February 17, 2021
Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations
Historically, the legal profession has been reluctant to embrace technology and electronic discovery in the practice of law. Indeed, practitioners…
February 10, 2021
February 10, 2021
Is Your Zoom-Bombed Meeting Discoverable?
As the pandemic continues and businesses adapt to the realities of virtual workforces, the “Zoom-Bombing” pranks housemates played on one…
January 21, 2021
January 21, 2021
The Costs of E-Discovery and What May be Recoverable Under 28 U.S.C. § 1920
Pursuant to 28 U.S.C. § 1920, a prevailing party may have a right to recover certain costs associated with the…
December 16, 2020
December 16, 2020
TAR 1.0 vs TAR 2.0: Is the Newer Version the Better Version?
Technology-assisted review (“TAR”) is a powerful tool used to streamline document review. Because data volume is constantly increasing, TAR was…
November 18, 2020
November 18, 2020
“You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”
The duty to preserve potentially relevant evidence – documentary or electronic – arises when a lawsuit is reasonably anticipated. Although…
November 04, 2020
November 04, 2020
The City of Chicago Employs “TAR” to Facilitate Review, But Doing So Is Not Without Issue
In today’s “e”-dense world, attorneys often look to leverage technology to facilitate production of electronically stored information (“ESI”) during the…
October 07, 2020
October 07, 2020
If the Proportionality Doesn’t Fit, Courts May Cost-Shift
Generally, the party producing discovery bears the costs of production. But, shifting to the non-producing party the costs of production…
September 30, 2020
September 30, 2020
No Internal Investigation Is Complete Without ESI
When allegations of employee misconduct are alleged, companies must respond swiftly. Indeed, “insider threats” can cause significant damage to a…
September 16, 2020
September 16, 2020
Can the Content of My Privilege Log Jeopardize My Privilege Claim?
Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that, when a party withholds information otherwise discoverable by claiming…
August 19, 2020
August 19, 2020
Self-Collecting ESI Can Be a Dangerous Game
The Honorable Shira Scheindlin once opined against allowing custodians of ESI to collect their data stating “[s]earching for an answer…
August 05, 2020
August 05, 2020
Spoliation of Evidence: When a Litigation Hold is no Longer Privileged
In New York, it is widely recognized that the duty to preserve documents arises once a party “reasonably anticipates litigation”…
July 22, 2020
July 22, 2020
Federal Judge Finds it is Counsels’ Absence of Good Faith and Cooperation Causing an Increase in Duration and Expense of Litigation
Aldinger v. Alden State Bank is a good reminder of counsel’s obligation to be cooperative in the discovery process. Aldinger,…
July 08, 2020
July 08, 2020
Rise of Mobile Phishing Scams
In the span of a few short months, the number of phishing attacks targeting smartphones as the entry point to…
June 24, 2020
June 24, 2020
Hey Google: Are You Alone?
Smart speakers – like Google Home and Amazon Echo – have changed the way our homes/offices function. Indeed, these voice-activated…
June 11, 2020
June 11, 2020
What do Lady Gaga, LeBron James and the Texas Courts Have in Common?
Give up? Each recently made headlines in connection with ransomware — a form of malware that encrypts a victim’s electronic…
May 27, 2020
May 27, 2020
The Rise of Electronic Signatures and Remote Notarizations Amid COVID-19 Pandemic
As we continue to conduct business virtually, non-traditional means of document execution are becoming increasingly popular. It is critical, however,…
May 14, 2020
May 14, 2020
Federal Court Denies Request for Wholesale Disclosure of Text Messages
A recent federal district court decision, Lawson et al. v Love’s Travel Stops & Country Stores, Inc., US Dist Ct,…
April 23, 2020
April 23, 2020
Opportunist Hackers “Zoom-Bombing” and Infiltrating Videoconferences amid Coronavirus Pandemic
April 08, 2020
Cyber Threats on the Rise During COVID-19 Pandemic
As the coronavirus (“COVID-19”) causes countless companies and employers to implement remote working environments, millions of Americans will be working…
March 25, 2020
March 25, 2020
The Foreign Language of E-Discovery
Have you ever been involved in a meet and confer regarding electronically stored information and felt your adversary was speaking…
March 05, 2020
March 05, 2020
Phishing Risks Associated with Social Media
With the ever evolving cyber threats, it is important to we understand our social media accounts and the way in…
February 12, 2020
February 12, 2020
Industry Forecast for Data Breaches 2020: What All Smartphone Users Should Know
As we become increasingly reliant upon our phones, we make ourselves more vulnerable to cyberattacks. Indeed, Experian’s 2020 edition of…
January 29, 2020
January 29, 2020
The Department of Homeland Security Reminds us of the Importance of Cybersecurity
Cybersecurity remains a real concern for businesses and individuals alike. We are reminded of this by a recent Department of…
January 15, 2020
January 15, 2020
A Cautionary Tale About How Not to Conduct Discovery in Federal Court
Yikes! No practitioner wants to be on the receiving end of a decision that starts with the title of this…
November 20, 2019
November 20, 2019
Defensible Data Destruction is a Must
Data destruction is the process of removing information in a way that renders it unreadable (paper) or irretrievable (digital data).…
October 09, 2019
October 09, 2019
Seven Simple (Cyber) Security Suggestions for September
In my search for ESI-centric information that would pique my readers’ interest, I came across an interesting article/blog about digital…
September 25, 2019
September 25, 2019
What is New York’s Data Breach Notification Statute? And Does it Impact Me?
As mentioned in my last blog post, there are data breach notification laws on the books in 48 states, including…
September 20, 2019
September 20, 2019
Some Cyber-Musts For Maximizing Security
Although there are data breach notification laws on the books in 48 States that require companies to inform consumers about…
September 11, 2019
September 11, 2019
How to Defensibly Limit Data During Discovery
Technology has revolutionized, among other things, the way people conduct business, store information and communicate with others. And, despite the…
August 28, 2019
August 28, 2019
Much Ado About Metadata?
Anyone reading this blog has likely heard about metadata and its potential role in a litigation (See, “Never Agree to…
August 08, 2019
August 08, 2019
The Document Demand That Seeks Electronically Stored Information
Electronically stored information (“ESI”) is ubiquitous and most people and companies are utilizing paperless documents in some form (i.e., e-mails,…
July 12, 2019
July 12, 2019
What Should Lawyers Look for in an E-Discovery Vendor?
In recent years, there has been a dramatic increase in e-discovery vendors. While having more vendor options to choose from…
June 26, 2019
June 26, 2019
In What Format Should I Make My Production? And, Does Format Matter?
The issue of production format when dealing with ESI is often the subject of discussion and disagreement. If possible, the…
May 30, 2019
May 30, 2019
What Is E-Discovery?
I am often asked by clients and subscribers to the blog, What is E-discovery? And so, this week’s post is…
May 09, 2019
May 09, 2019
Text Messages Must be Preserved
Whether we like it or not, a reality of today’s world is that often important business is conducted by text…
April 25, 2019
April 25, 2019
Technology Assisted Review At a Glance
Rule 1 of the Federal Rules of Civil Procedure calls upon courts and litigants to “secure the just, speedy, and…
April 10, 2019
April 10, 2019
De-duplication: What is it and Why Should I Use it?
De-duplication (“de-duping”) is the process of comparing electronic records based on their content and characteristics and removing duplicate records from…
March 27, 2019
March 27, 2019
What is EDRM?
The Electronic Discovery Reference Model (EDRM) is a framework that outlines standards for the recovery and discovery of digital data.…
March 13, 2019
March 13, 2019
Cases Involving Emoticons As Evidence Are On the Rise
Approximately, one year ago, I authored a blog about emoticons finding their way into the courtroom as purported evidence of…
February 27, 2019
February 27, 2019
A Lawyer’s Obligation to be Technologically Competent – Part 4
This is the 4th and final blog in a multi-part blog discussing various critical requirements that can serve as the…
February 13, 2019
February 13, 2019
A Lawyer’s Obligation to be Technologically Competent – Part 3
This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to…
February 01, 2019
February 01, 2019
A Lawyer’s Obligation to be Technologically Competent – Part 2
This is Part 2 in a multi-part blog discussing various core requirements that can serve as the road map to…
January 16, 2019
January 16, 2019
A Lawyer’s Obligation to be Technologically Competent – Part I
The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years. This growth has a…
January 02, 2019
January 02, 2019
The Rule 26 Conference: Necessary Evil or Critical for Streamlined and Efficient Discovery?
Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery…
December 26, 2018
December 26, 2018
Court Dismisses Plaintiff’s Complaint As Sanction for Doctored Emails
On August 1, 2018, Judge Beetlestone (E.D. Pa.) granted Defendants’ motion for sanctions based upon unequivocal evidence that Plaintiffs manipulated…
November 07, 2018
November 07, 2018
The Risks of Social Media in Litigation
It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated…
October 10, 2018
October 10, 2018
The Dangers of Counsel Not Being Active Participant in the Discovery Process
Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police…
September 26, 2018
September 26, 2018
The Perils of Self-Collection
“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify…
September 13, 2018
September 13, 2018
Important Update for Those Who Practice in the Commercial Division of the NYS Supreme Courts
On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules,…
August 22, 2018
August 22, 2018
Rule 45’s Geographic Restrictions Do Not Apply to the Production of Electronically Stored Information
In a recent decision out of Oklahoma (Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C [W.D. Okla. June 13, 2018]),…
August 08, 2018
August 08, 2018
Ethical Information Gathering When Using Social Media
The American Bar Association Ethics 20/20 Commission and Rule 1.1 provide that a lawyer’s duty of competence “[t]o maintain the…
July 18, 2018
July 18, 2018
Developing Effective Key Words is an Iterative and Thought Intensive Process
In my December 2016 blog post, I wrote about how developing effective key words is very much an iterative and…
June 27, 2018
June 27, 2018
Is Mandatory Technology Training For Lawyers Headed to New York?
In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers…
June 13, 2018
June 13, 2018
Consider Document Clustering to Increase Efficiency and Accuracy in Review Projects
When tasked with a document review project, there are various analytic tools available to streamline the process in order to…
May 30, 2018
May 30, 2018
Email Threading: Another Analytic Tool Available to Promote Efficiency In a Document Review Project
The April 26 blog post discussed predictive coding as one of many analytical tools available to empower attorneys to work…
May 16, 2018
May 16, 2018
What Can A Litigator Do When There are Hundreds of Thousands of Documents to Review in a Short Period of Time, and a Strict Litigation Budget is in Place?
Traditional document review can be one of the most variable and expensive aspects of the discovery process. The good news…
April 26, 2018
April 26, 2018
Due Diligence When Selecting a Vendor
When faced with the task of collecting, processing, reviewing and producing digital data, law firms (and clients) often retain outside…
April 11, 2018
April 11, 2018
Document Preservation: Why Precision and Recall Matter
When one preserves and collects electronic data for a litigation, one typically casts a broad net. This, in turn, can result…
March 28, 2018
March 28, 2018
Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.
In 2012, Klipsch Group Inc. (“Klipsch”), a manufacturer of sound equipment, filed a complaint against ePRO E-Commerce Ltd. (“ePRO”), alleging…
March 14, 2018
March 14, 2018
Texter Beware: Emojis As Evidence
Imagine if the above emojis, casually fired off in a text message (or in an Instagram or Facebook post) to…
February 28, 2018
February 28, 2018
A Cooperative Discovery Process Promotes Efficient Advocacy
In Youngevity Intl’s Corp. v. Smith (No: 16-cv-00704 [SD CA December 21, 2017]), defendants sought an Order pursuant to Federal…
February 14, 2018
February 14, 2018
What is Predictive Coding and Should I Think About Using It?
You are involved in litigation and faced with a document review need, what now? Naturally you need to find attorneys…
January 31, 2018
January 31, 2018
The Perks and Perils of Self-Destructing Messages
What do applications like Snapchat, Telegram, Wickr, Cover Me, Speak On, and Whisper have in common? They are all self-destructing…
January 17, 2018
January 17, 2018
When Are Redactions Based Upon Relevance (or, a Lack Thereof) Permissible?
In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern…
December 20, 2017
December 20, 2017
The New Rules of Federal Evidence Have Arrived
Earlier this year, I wrote about the then-proposed changes to the Federal Rules, and how those changes (if implemented), could…
December 06, 2017
December 06, 2017
If Evidence in its Original Form Is No Longer Available – But a Copy of that Evidence Is – Are Spoliation Sanctions Appropriate?
In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), Plaintiffs –…
November 22, 2017
November 22, 2017
Cooperation and Competence are Critical, Concludes One Court
United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017) This case, which arises…
November 08, 2017
November 08, 2017
Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve
In past blogs, I have discussed the importance of issuing a litigation hold notice (“Hold”), as soon as a litigation is reasonably…
October 25, 2017
October 25, 2017
In the SDNY, a Party Is Sanctioned for the Preservation Failures of a Third-Party
Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017) In…
October 11, 2017
October 11, 2017
Oops I Did It Again — Court Rules that Two Separate Productions of the Same Privileged Materials Was Completely Reckless
Despite the existence of a stipulated clawback agreement (that was never presented to the Court to be So Ordered) that…
September 25, 2017
September 25, 2017
Practical Tips For an Effective Litigation Hold Notice
I recently wrote about the importance of styling one’s litigation hold in a broad, but sufficiently specific way (See, “Your…
September 11, 2017
September 11, 2017
Because the Court Concluded Plaintiff’s Counsel Failed to Engage in Meaningful Meet and Confer, Court Orders Counsel (not the Plaintiff) to Bear the Costs of Production
In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)),…
August 30, 2017
August 30, 2017
Your Litigation Hold Must be Generally Broad And Specifically Tailored
In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones, Jr., denied Plaintiff…
August 16, 2017
August 16, 2017
Taylor Swift and the Java-Dump: An E-Discovery Tale
Mueller v. Swift, (D. Col. 2017) 2017 WL 2362137 Some opinions just have it all, and Mueller v. Swift does…
August 02, 2017
August 02, 2017
The Seven Commandments of Proportionality in ESI*
In In Re State Farm Lloyds, (Texas Supreme Court [May 26, 2017] 2017 WL 2323099), the Supreme Court of Texas…
July 19, 2017
July 19, 2017
Surreptitious Cyber-Conduct results in New York County Decision Striking Defendant’s Answer
In a decision dated May 26, 2017, Justice Chan of the Supreme Court of the State of New York, New…
July 05, 2017
July 05, 2017
Just When You Thought It Was Safe To Use Your Company Computer*
In Miller v. Zara USA Inc., (2017 N.Y. Slip Op. 04407, 1st Department June 6th, 2017), the First Department held…
June 21, 2017
June 21, 2017
A Federal Court’s Award of Attorneys’ Fees As a Sanction for Bad-Faith Conduct Cannot be Punitive
Most practitioners are familiar with the federal sanction powers as codified in the Federal Rules of Civil Procedure (i.e., Rules…
June 07, 2017
June 07, 2017
An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails
According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and…
May 24, 2017
May 24, 2017
Court’s Inherent Sanction Powers – Not Rule 37(e) – Govern when Relevant Information (ESI included) is Intentionally Deleted
In Hsueh v. N.Y. State Dep’t of Fin. Servs., (No. 15 Civ. 3401 [PAC], 2017 WL 1194706 [S.D.N.Y. Mar. 31,…
April 26, 2017
April 26, 2017
Rule 26 and How It Applies to Electronically Stored Information
Electronic discovery (a/k/a ediscovery and e-discovery) is the process of identifying, preserving, collecting, preparing, reviewing and producing electronically stored information…
April 12, 2017
April 12, 2017
File Sharing Sites and Inadvertent Waiver
In connection with a declaratory judgment lawsuit wherein the Harleysville Insurance Company sought a ruling that it did not have…
March 15, 2017
March 15, 2017
Judge Finds Defense Counsel’s Reliance upon Pre-Amendment Rule 26 in a Motion to Compel the Equivalent of Bad Faith – Resulting in Significant and Embarrassing Sanctions
In Fulton v. Livingston Financial LLC, 2016 WL 3976558 (W.D. Wash. July 25, 2016), U.S. District Judge James L. Robart…
March 01, 2017
March 01, 2017
More Proposed Changes to the Federal Rules that Will Inevitably Impact Electronic Discovery and Federal Practitioners
The Federal Rules are undergoing more changes! And, effective December 1, 2017, there will be two new Federal Rules of…
February 15, 2017
February 15, 2017
The Western District Declines to Compel Additional Discovery
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016) In this case, pending before the…
February 01, 2017
February 01, 2017
Critical Road Map for ESI in Litigation
It is the beginning of a new year and I thought it the ideal time to list out those steps…
January 18, 2017
January 18, 2017
What is De-Duplication and How Do I Do It?
When collecting electronically stored information (“ESI”) from multiple custodians (i.e., various individuals/ different sources), there will necessarily be duplicative documents…
January 04, 2017
January 04, 2017
Client’s Bad Behavior Imputed to Counsel – Both Get Sanctioned
In Arrowhead Capital Fin. Ltd. v. Seven Arts Entertainment, Inc. 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), District…
December 22, 2016
December 22, 2016
Key Word Searching – What Is It? And How Do I Do It (Well)?
A key word search is a basic search technique that involves searching for one or more words within or across…
December 09, 2016
December 09, 2016
Preserving vs. Collecting – What’s the Difference? And, Why Does it Matter?
Lawyers often worry about their obligation to preserve relevant information. As a result, one may direct their client to collect…
November 23, 2016
November 23, 2016
Proportionality Is the Critical Inquiry in Federal Court Discovery
The amendment to Federal Rule of Civil Procedure 26(b)(1) (which defines the scope of permissible discovery) did away with the…
November 09, 2016
November 09, 2016
Counsel’s Failure to be Meaningfully Involved with Client’s Discovery Collection Costs Client One Half Million Dollars in Discovery Sanctions
On October 4, 2016, District Judge Jon S. Tigar issued an opinion every federal court practitioner should read (Rodman v…
October 26, 2016
October 26, 2016
The Southern District of New York Rules that It Cannot Force a Responding Party To Use Technology Assisted Review When Searching for Documents
In Hyles v. New York City et. al., (Case No. 10-3119, 2016 U.S. Dist. LEXIS 100390 [S.D.N.Y. Aug. 1, 2016],…
October 13, 2016
October 13, 2016
A Party Must Specify Basis for Objection Or Risk Compelled Discovery
This case (Heller’s Gas, Inc. v. Int’l Ins. Co. of Hannover Ltd., 2016 U.S. Dist. LEXIS 71069 [M.D. Pa. June…
September 28, 2016
September 28, 2016
Personal Computer/Email Accounts Discoverable
In Sunderland v. Suffolk Cty., 2016 U.S. Dist. LEXIS 77212 (E.D.N.Y. June 14, 2016) Magistrate Judge A. Kathleen Tomlinson granted…
September 14, 2016
September 14, 2016
E-Discovery Update: ESI Sanctions in Federal Court During 2016 (Well, through July)
Federal Rule of Civil Procedure 37 (along with others — Rules 1, 16, 26 and 34) was amended, effective December…
August 31, 2016
August 31, 2016
What is a Native File and Why Does it Matter?
Production of documents in their “native file format” is gaining traction in litigation. But, what exactly is a native file?…
August 17, 2016
August 17, 2016
Sanctions in Two New York Courts for Party’s Failures to Preserve
Recently, two separate New York courts (the First Department and the Southern District) issued decisions imposing sanctions upon litigants who failed…
August 03, 2016
August 03, 2016
Failure to Preserve Emails Results in Sanctions
We all know that it can be damaging to one’s case if a party to a litigation fails to preserve…
July 20, 2016
July 20, 2016
Any Reasonable Litigant Should Understand Not to Destroy Evidence.
In the well-known saga commonly referred to as “deflategate,” (NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 [2d…
July 06, 2016
July 06, 2016
Relevant Social Media Posts Cannot be Destroyed Nor Can They Be Hidden
In Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016), a Fair Housing Act case, defendants moved for sanctions…
June 22, 2016
June 22, 2016
Difficulty in Assembling Responsive Electronic Data an Insufficient Reason to Deprive Litigant of the Critical Information
In an insurance law class action suit pending in the Western District of Missouri (Labrier v. State Farm Fire &…
June 08, 2016
June 08, 2016
Lightning Strikes and Power Surges Insufficient to Insulate Defendant from Discovery Sanctions
In a trademark infringement case pending in the Northern District of California (InternMatch v. Nxtbigthing, 2016 WL 491483 [N.D. Cal.…
May 25, 2016
May 25, 2016
Defendants’ Proposal to Redact Non-Relevant Information Recently Upheld under Newly Amended Rule 26
Chief Justice Roberts commented that the newly amended Federal Rule of Civil Procedure, Rule 26 “crystalizes the concept of reasonable…
May 11, 2016
May 11, 2016
What is a Data Map, Anyway?
When dealing with a lawsuit that inevitably will require the production of electronically stored information (“ESI”), one of the first…
April 27, 2016
April 27, 2016
The Christopher Carmicle Case – The Hits Keep Coming!
In Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016) – a case previously written about…
April 13, 2016
April 13, 2016
Documents Identified by Agreed Upon Search Terms Do Not Necessarily Require Production of Those Documents
In Gardner v. Continental Cas. Co., (2016 WL 155002 [D. Conn. Jan. 13, 2016]), the District Court was called upon…
March 30, 2016
March 30, 2016
Why Every Litigator Must Understand the New Federal Rules
It can hardly be denied that no lawyer wants to apply the wrong legal standard in papers or be criticized by…
March 17, 2016
March 17, 2016
A Few ESI Musts For 2016
Today’s post draws upon countless other recent articles and blogs and their respective predictions regarding, what’s in store for 2016…
March 03, 2016
March 03, 2016
In Parallel Case to Lola v. Skadden Arps, 13-cv-05008, Quinn Emanuel Wins OT Challenge
Last year we wrote about the Lola v. Skadden Arp case wherein contract attorney, David Lola, brought suit under the…
February 25, 2016
February 25, 2016
Southern District Reiterates the Critical Importance of Issuing a Litigation Hold and Grants Sanctions Against City and NYPD
As most of those reading this are aware, companies/entities/agencies doing business in the US generally are not required to indefinitely…
February 18, 2016
February 18, 2016
Is Your Spouse’s Phone Subject to Production Under Federal Rule 45?
The short answer is – maybe; if there is any possibility that the information contained on the phone may be…
February 11, 2016
February 11, 2016
Who Exactly Qualifies as the Prevailing Party Entitled to Costs in a Mixed Judgment Case? And What Exactly Are Recoverable Production Costs?
Mobile Telecomms. Techs., LLC, v. Samsung Telecomms. Am., LLC, 2015 WL 5719123, (E.D. Tex. Sept. 28, 2015) In this patent…
February 04, 2016
February 04, 2016
The Amendments to the Federal Rules of Civil Procedure, the Court of Appeals’ Pegasus Aviation Decision and What They Mean for New York Litigators
For a long time, New York state and federal courts were out of sync with one another with regard to…
January 21, 2016
January 21, 2016
New York Court of Appeals Finally Speaks on Ediscovery Spoliation, But is it Now Out of Step with the Federal Courts?
After sitting on the sidelines for years, the New York Court of Appeals (the highest appellate court in New York)…
January 06, 2016
January 06, 2016
Businesses Should Assess their Technology Solutions Mindful of the Potential for Litigation and Corresponding Discovery Obligations
United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726 (D. Nev. Aug. 25, 2015) In this…
November 25, 2015
November 25, 2015
Will New York Follow California’s Lead?
Earlier this summer, the California State Bar formally addressed the ethical obligations of counsel to be competent in matters of…
November 11, 2015
November 11, 2015
When Do Contract Attorneys “Practice Law”?
On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing,…
October 28, 2015
October 28, 2015
Failure to Preserve Text Messages and Relevant Emails Lead to Sanctions
In Kan-Di-Ki, LLC v. Suer (2015 WL 4503210 [Del. Ch. July 22, 2015]), a case involving breach of contract claims,…
October 14, 2015
October 14, 2015
Mere Negligence Cannot Support a Spoliation Claim
Giuliani v. Springfield Township, No. 10-7518, 2015 U.S. Dist. LEXIS 74174 (E.D. Pa. June 9, 2015) In the Third Circuit,…
September 30, 2015
September 30, 2015
Don’t Use “Crap Cleaner” When a Motion to Compel Is Pending, and Other Lessons Learned, to Ensure You Don’t Get Hit With a Spoliation Sanction
Clear-View Technologies, Inc. v John H. Rasnick, et al (2015 U.S. Dist. LEXIS 63579), reads as a list of the…
September 16, 2015
September 16, 2015
Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction
Themis Bar Review, LLC v. Kaplan, Inc., WL 3397877 (S.D. Cal. May 26, 2015). In this action, defendant served…
September 02, 2015
September 02, 2015
You Really Should Check With Your Client Before Objecting to Discovery Requests
A recent decision from the United States District Court of the District of Connecticut demonstrates the need for proper custodian…
August 19, 2015
August 19, 2015
BAR Members Behaving Badly!
HMS Holdings Corp. v. Arendt, 2015 N.Y. Slip Op. 50750(U) (Sup. Ct. May 19, 2015). In this lawsuit, HMS alleged…
August 05, 2015
August 05, 2015
The Importance of a Cooperative Discovery Process
In a previous post we discussed generally the idea of a cooperative discovery process and highlighted how the proposed amendments…
July 22, 2015
July 22, 2015
SCOTUS Endorses New FRCP
As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies…
July 08, 2015
July 08, 2015
Still Need to Demonstrate Spoliated Materials Were Relevant
In the latest of a string of decisions relating to ediscovery spoliation, the First Department, on Jun 11, 2015, reconfirmed…
June 24, 2015
June 24, 2015
Plaintiffs’ Failure to Preserve Leads to Two Adverse Inferences
AJ Holdings Grp. LLC v. IP Holdings, LLC, No. 600530/2009 (N.Y. Sup. Ct. Sept. 19, 2014) reversed by AJ Holdings Group…
June 17, 2015
June 17, 2015
Magistrate Judge Peck’s Recent Decision on the Use of Predictive Coding and the Cooperative Obligations Involved
A little more than three years ago, federal Magistrate Judge Andrew J. Peck (SDNY), issued a seminal decision in Da…
June 03, 2015
June 03, 2015
Bad Faith Spoliation of Audio Data Results in Adverse Inference Instruction
Novick v. AXA Network, LLC, 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014) In this contract dispute case, the plaintiff made…
May 20, 2015
May 20, 2015
Sanctions Inappropriate When Failure to Preserve is the Result of Prior Court Order
Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015) In this collective action…
May 06, 2015
May 06, 2015
Failure to Implement a Proper and Timely Legal Hold Notice Results in Plaintiff Being Sanctioned
In an earlier post (SEE reference to my top 10 list), I noted the importance of issuing a timely and…
April 22, 2015
April 22, 2015
Costs of Imaging Hard Drive Can Be Recovered As Taxable Cost in Federal Court
Lawyers are constantly asked by clients if there is any way to recover attorneys’ fees and costs from the opposing…
April 08, 2015
April 08, 2015
The Dangers of Dilatory Discovery
In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), discovery in the breach of…
April 08, 2015
April 08, 2015
Never Agree to Do Something Your Client Cannot Do
Under the New York State Supreme Court Commercial Division Rules counsel are expected to agree at the Preliminary Conference as…
March 25, 2015
March 25, 2015
What Exactly is The Practice of Law?
In a case that helps clarify what discovery-specific activities constitute the practice of law, District Court Judge Richard Sullivan –…
March 12, 2015
March 12, 2015
Better Not Toss A “Crashed” Computer
Judge Kimba M. Wood found for the first time in the Second Circuit in Dorchester Financial Holdings Corp. v Banco BRJ,…
February 25, 2015
February 25, 2015
Articles & Advisories
Now That Everything Is Collected, How to Produce It?
Aaron E. Zerykier, Esq., an associate in Farrell Fritz’s commercial litigation department, co-authored this article with Mark A. Berman and…
March 21, 2011
Federal Practice Update
This month we review three decisions rendered by the Judges of the Eastern District of New York, Alfonse D’Amato Courthouse.…
February 01, 2004
News
Who’s Who in Women in Professional Services – Kathryn C. Cole
Kathryn C. Cole is a partner at Farrell Fritz, P.C., the practice group leader of the firm’s commercial litigation group,…
September 07, 2021
Women in Technology Roundtable: Implementing Legal Technology to Gain a Competitive Edge
During Thomson Reuters’ recent Women in Technology Roundtable, panelists, including Farrell Fritz partner Kathryn Cole, discussed how firms can best…
July 13, 2021
Who’s Who in Women in Professional Services – Kathryn C. Cole
Kathryn “Katy” C. Cole is counsel in Farrell Fritz, P.C.’s commercial litigation practice group and a founding member of the…
August 25, 2016
Press Releases
29 Farrell Fritz Attorneys Recognized as 2019 Leading Lawyers in Their Respective Areas of Practice
Farrell Fritz has a combined total of 29 attorneys selected to the 2019 New York Metro Super Lawyers and New…
September 17, 2019
Kathryn C. Cole Has Been Elected as a New York Bar Foundation Fellow
Farrell Fritz is pleased to announce that Kathryn (Katy) C. Cole has been named a Fellow of The New York…
March 04, 2019
Katy Cole of Farrell Fritz Earns Prestigious Certified E-Discovery Specialists (CEDS) Certification
Katy Cole is among the select group of e-discovery professionals to pass the rigorous four-hour Certified E-Discovery Specialists (CEDS) certification…
April 07, 2017
Farrell Fritz Partner Katy Cole to Receive a 2017 “Outstanding Woman in Law” Award
Farrell Fritz is pleased to announce that Hofstra Law has selected Katy Cole to receive an “Outstanding Woman in Law”…
March 06, 2017
Farrell Fritz Promotes Five Attorneys in its Uniondale Office
Farrell Fritz is pleased to announce the promotions of Kathryn (Katy) Carney Cole, David (Dave) M. Curry, Kristina M. Wesch…
January 04, 2017
Farrell Fritz Launches its Tenth Blog: All About eDiscovery
Farrell Fritz is pleased to announce that it has launched its tenth blog, All About eDiscovery (http://www.allaboutediscovery.com). The blog is…
March 13, 2015