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Discovery


Respond with Caution! Responses to Discovery “Subject to the Stated Objections” May Waive Your Client’s Objections

A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection, followed by a bare “conditional” response, i.e., stating that “Without waiving the stated objections, defendant will produce non-privileged responsive documents,” is now considered improper and may result in an inadvertent waiver of the party’s stated objections.

It has become common practice among many litigators to respond to a discovery request by stating the party’s objection, followed by a conditional response.  For instance, practitioners routinely respond to a discovery request by stating, “Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents.” Many federal district courts are concluding that such a conditional response, without specifying which part is objected to and which part is being responded to, is improper and, most significantly, that a party may waive its objections by responding conditionally.  Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, No. 11-02684-JWL, 2014 WL -------, *4–8 (D. Kan. Feb. 11, 2014), available at https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2011cv2684-177.

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O Canada! What We Can Learn from Thee? A Comparison of U.S. and Canadian Discovery Procedures

It may seem trite to say that the world continues to become increasingly smaller as globalization becomes more prevalent, but examining product liability law in the United States and other countries proves the adage true. As commerce has progressively become more globalized, it comes as no surprise that product manufacturers and distributors sell more of their products worldwide. And where products are sold, product liability lawsuits are usually not far behind.

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Turning the Tables: Using Plaintiffs' Spoliation of Evidence Against Them Spoliation letters sent by plaintiff lawyers are commonplace in litigation. These letters typically demand that the defense "preserve" any and all evidence that might be relevant to contemplated or pending litigation, with the threat that if the evidence is not preserved the plaintiff will seek to have the Court sanction the defense (strike the answer). Wouldn't it be nice if the defense could turn the tables on the plaintiffs and make them subject to sanctions for spoliation of evidence? Recently, Wayne Melnick and Matthew Moffett, partners with Gray, Rust, St. Amand, Moffett & Brieske, LLP in Atlanta, Georgia were able to do that and secure a dismissal of a case where the plaintiff was seeking more than $2 million in damages from our client.


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How to Obtain Social Media Discovery Effectively without Overstepping Any Ethical Boundaries

We have all heard of the possibility that some plaintiffs might be encouraged by opposing counsel to delete any incriminating Facebook comments, "likes," or pictures.  While this inappropriate coaching has its own spoliation and ethical considerations, the purpose of this article is to present ways to preserve social media content in an effective and ethical manner. 

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Civil Suits Involving Foreign Litigants: Trekking Through Cross-Border Discovery

Foreign litigants are increasingly filing their civil cases in the United States in order to take advantage of its laws, procedures and jury system.  This is especially true in the toxic tort arena where domestic plaintiffs' lawyers are advertising in foreign countries and reaching out to potential litigants who have reported the development of certain diseases.  This article takes you through the cross-border discovery process where the witnesses – and often the bulk of the evidence – reside in a foreign country.

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Cross-Border Discovery: Can’t We All Just Get Along? Just as globalization has significantly increased, so has cross-border discovery. It is not unusual for information requested in U.S. discovery to be found outside the country. Much of this information is electronic – Electronically Stored Information or "ESI" – thus creating additional challenges. The collection, processing and production of ESI can be complicated and costly. And when the ESI is located beyond the borders of the U.S., the issues can get even more involved. view more
Informal Discovery: Simple Strategies for Cost-Effective Litigation Today more than ever, clients are justifiably concerned with managing their legal expenses. Obtaining impressive results at a reasonable cost has long been a fundamental objective of litigation, but a renewed focus on innovative discovery tools may provide even more value for our budget-conscious clients. Informal discovery, i.e., uncovering factual information obtainable without a formal request to opposing counsel or an authorization from the opposing party, is a valuable precursor to formal discovery because: (1) it does not hinge on (sometimes difficult to obtain) cooperation from your opposition, where expensive and time-consuming discovery disputes may result; (2) it can be conducted at virtually any point after the potential for litigation arises, unconstrained by formal discovery schedules; and (3) it could swiftly reveal the proverbial "smoking gun" in your case, all with the assistance of an associate or paralegal, utilizing free or low-cost search tools. view more
Informal Discovery: Simple Strategies for Cost-Effective Litigation Today more than ever, clients are justifiably concerned with managing their legal expenses. Obtaining impressive results at a reasonable cost has long been a fundamental objective of litigation, but a renewed focus on innovative discovery tools may provide even more value for our budget-conscious clients. Informal discovery, i.e., uncovering factual information obtainable without a formal request to opposing counsel or an authorization from the opposing party, is a valuable precursor to formal discovery because: (1) it does not hinge on (sometimes difficult to obtain) cooperation from your opposition, where expensive and time-consuming discovery disputes may result; (2) it can be conducted at virtually any point after the potential for litigation arises, unconstrained by formal discovery schedules; and (3) it could swiftly reveal the proverbial "smoking gun" in your case, all with the assistance of an associate or paralegal, utilizing free or low-cost search tools. view more
You Have a New Discovery Request: Canadian Courts Balance Privacy and Discovery Rights in Facebook Production Motions The continued proliferation of Facebook users worldwide doesn't only benefit Mark Zuckerberg; it's also a potential boon to lawyers defending personal injury claims. Plaintiffs are now increasingly likely to maintain the online equivalent of a personal journal (complete with pictures) that may be discoverable in litigation – that is, if defense counsel can lay the proper foundation for its production. view more
The Duty to Preserve Electronic Evidence: When Is It Triggered and What Does It Encompass? Recently Judge Lee H. Rosenthal wrote that "Spoliation of evidence—particularly of electronically stored information—has assumed a level of importance in litigation that raises grave concerns." Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010). Indeed, it appears that motions for spoliation are increasingly becoming oft-used tools in the strategic plan of litigants. Thus, litigants, and particularly defendants— who are more often on the receiving end of a motion for sanctions—must be vigilant in their document preservation, retention, and deletion policies. The first and most fundamental step to ensuring compliance with the duties regarding evidence is to know the basics. Since there can be no spoliation without a duty to preserve the evidence, the fundamental question in the spoliation context is when the duty to preserve arises and what it entails.  view more
Remaining Risks of Open Communications with Experts Under the New Federal Rules In 2010, Rule 26(a)(2) and (b)(4) were amended to address issues regarding discovery of expert communications. Citing complaints that discovery of expert communications created unnecessary costs in hiring more than one expert (one consulting (or non-discoverable) and one testifying (discoverable)) and awkwardness in communications with experts, the rule was changed to immunize communications between attorneys and experts with some notable exceptions. While it is laudable that these changes were instituted with the goal of decreasing costs of litigation, it will now be more difficult to establish opposing counsel's influence or bias on the expert's opinion, which used to be customary cross-examination material before the rule change. Regardless, the practitioner is cautioned that the new rule does not protect all communications with experts, and reliance on the rule change in this regard is not without risk. view more
U.S. Discovery Reaching Across Borders: Learning the Issues on the Fly A chance meeting between a seasoned partner of a large law firm and a young associate, Jagger, in a similarly sized firm, takes place in the airport lounge at New York’s Kennedy Airport. Both are relaxing. The partner of 20 years tells Jagger she is heading on vacation with her husband (who is also a lawyer, and is typing away at an aspiring first novel nearby, a seemingly common habit for lawyers these days). When the partner asks Jagger where he is headed, she learns he is leaving for Europe to gather documents and emails for discovery, and interview client and third-party witnesses for a case pending in the Southern District of New York. Clearly Jagger is excited about his upcoming journey, for it is his first foray to the continent. He is especially looking forward to his several days in Paris—“the City of Light”—where by a stroke of luck his client maintains substantial operations, and many of the relevant events took place.  view more
Mastery of Discovery Rules Can Help Avoid Discovery Battles

More often than not, written discovery responses elicit a variety of objections rather than substantive information responsive to the discovery request. The most common objections are asserted on the grounds of irrelevance, excessive scope and vagueness. Too often, the objecting party mistakenly believes that he or she is excused from providing a substantive response simply because an objection has been asserted.

This mistake, all too common in litigation, can bring dire consequences. A mastery of the discovery rules and the applicable case law can help you outmaneuver stonewalling tactics while protecting yourself and your client from the exorbitant costs of discovery battles, and potential as court-imposed sanctions.

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When Electronic Communications Can Jeopardize the Attorney-Client Privilege ABA’s Position on Electronic Communications and the Attorney-Client Privilege
Protecting attorney-client communications in the age of technology can be a difficult and daunting task. On August 4, 2011, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 11-459, which discusses the duty to protect the confidentiality of e-mail communications with clients. The advisory opinion pertains to ABA Model Rule 1.6 and the comments thereto, which require a lawyer to maintain confidential communications and act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons. Thus, it is incumbent upon the practitioner to be aware of scenarios where modern communication devices may result in an inadvertent disclosure, thereby compromising confidential attorney-client communications. It is fairly well settled that attorneys and their clients can communicate freely and securely through electronic means without having to take extreme measures in order to ensure that the communications are secure; however, “in the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.” ABA Formal Op. 11-459. Knowing when and under what circumstances the client may have a reasonable expectation of privacy in communications sent from an employer issued communication device is key to understanding when the privilege may be lost.

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The Effect of Federal Rule Changes on Expert Discovery: What You Need to Know Now

Introduction

Federal Rule of Civil Procedure 26 was amended December 1, 2010. The effect of this federal rule change is significant to drug and device lawyers practicing in federal court as it substantially changes the requirements governing what may be discovered from a party's testifying expert. In general, the amendments provide increased work-product protection for testifying expert draft reports. As drug and device lawyers are aware, before the 2010 amendment went into effect, federal jurisdictions did not uniformly apply the discovery guidelines set forth in Federal Rule of Civil Procedure 26. Numerous jurisdictions applied extremely broad interpretations of Rule 26, which resulted in both parties seeking discovery of any and all communications between counsel and the expert witness, including drafts of expert reports. The effect of the old rule was that parties often entered into early negotiations regarding the scope of permissible discovery for expert reports and communications. Frequently, the parties would enter a stipulation preventing all or part of expert discovery. At the minimum, the parties were forced to vigilantly, and at great cost, guard against the disclosure of potentially discoverable information exchanged with their own expert witnesses. The 2010 amendments to Rule 26 seek to address these concerns and provide uniformity in the federal courts regarding discoverability of expert communications and draft reports. This article examines the changes to Federal Rule of Civil Procedure 26 and provides practical guidance for utilizing the new protections.

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The Effect of Federal Rule Changes on Expert Discovery: What You Need to Know Now

Introduction

Federal Rule of Civil Procedure 26 was amended December 1, 2010. The effect of this federal rule change is significant to drug and device lawyers practicing in federal court as it substantially changes the requirements governing what may be discovered from a party's testifying expert. In general, the amendments provide increased work-product protection for testifying expert draft reports. As drug and device lawyers are aware, before the 2010 amendment went into effect, federal jurisdictions did not uniformly apply the discovery guidelines set forth in Federal Rule of Civil Procedure 26. Numerous jurisdictions applied extremely broad interpretations of Rule 26, which resulted in both parties seeking discovery of any and all communications between counsel and the expert witness, including drafts of expert reports. The effect of the old rule was that parties often entered into early negotiations regarding the scope of permissible discovery for expert reports and communications. Frequently, the parties would enter a stipulation preventing all or part of expert discovery. At the minimum, the parties were forced to vigilantly, and at great cost, guard against the disclosure of potentially discoverable information exchanged with their own expert witnesses. The 2010 amendments to Rule 26 seek to address these concerns and provide uniformity in the federal courts regarding discoverability of expert communications and draft reports. This article examines the changes to Federal Rule of Civil Procedure 26 and provides practical guidance for utilizing the new protections.

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