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Is eDiscovery Cost Shifting Appropriate Prior to Class Action Certification?
Recently in Boeynaems v. LA Fitness, No. 10-2326 (E.D.P.A. August 16, 2012), the federal district court in the Eastern District of Pennsylvania addressed an issue apparently one of first impression – whether cost-shifting to plaintiffs related to pre-class certification discovery, including ESI discovery, was appropriate. Plaintiffs alleged the defendant national fitness chain was engaged
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Making Copies: What eDiscovery Services are Taxable Costs?
Is eDiscovery preservation, collecting, culling, searching and production the same as “making copies?” The defendants thought so in Race Tires America, Inc. LLC v. Hoosier Racing Tire Corp. (Race Tires II), No. 11-2316, 2012 WL 887593 (3d Cir. Mar. 16, 2012). The defense had won the underlying case on a
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Defendant’s “Document Dump” Leads to Waiver of Attorney-Client Privilege
Defendants often employ an old, tired tactic to overwhelm plaintiffs’ counsel in response to discovery requests: Bury them in paperwork! However, litigants may want to rethink this strategy, as the use of a “document dump” for electronically stored information (ESI) can lead to inadvertent disclosure of privileged information. In the
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Avoiding the Crossfire: The Lessons of Zubulake V
“When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties.” Zubulake V, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y. July 20, 2004). Zubulake V picks up where the last order left off, being that the Court found the defendants had breached their duty to
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Zubulake IV and Missing Tapes: Did the Defendants Purposely Destroy Evidence?
Our blog has been doing a series on the Zubulake orders, covering many plaintiff eDiscovery issues even before the 2006 amendments to federal civil procedure. Before the gender discrimination case was filed in federal court in February of 2002, Zubulake had filed an EEOC complaint in August 2001. Defendants asserted
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Did the Zubulake III Back Up Email Tapes Contain Relevant Data? You Bet They Did!
Monday’s blog discussed the Zubulake I case, where Judge Shira Scheindlin looked at eDiscovery accessibility to categorize different types of electronic data before a cost shifting analysis. The more inaccessible the data is, the more likely that cost shifting is appropriate. She ordered the defendants to produce a small set
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A Look Back on Zubulake I, the Original Plaintiff eDiscovery Case
Beginning in 2002, an equity trader named Laura Zubulake filed suit against her former employer, UBS Warburg, for gender discrimination, failure to promote and retaliation. The potential for a large judgment was great, as damages would include lost wages and Zubulake made over $650,000 annually. The key evidence in this
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Plaintiff ESI Production Strategies are Necessary from the Beginning of the Case
The 2012 Virginia court opinion Global Aerospace, Inc., et al. v. Landow Aviation, L.P. d/b/a Dulles Jet Center, et al., (Case No. CL 61040) was no small discovery case. The physical amount of the ESI data was over 200 gigabytes (GB), or the equivalent of about two million pages if
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Do Plaintiffs Have the Right to Choose eDiscovery Production Methods?
More cases are coming down across the nation dealing with eDiscovery review methods, and a common theme has been to order computer-assisted document review (aka “predictive coding”) to make document review more efficient. Sometimes, this is beneficial for plaintiffs, such as our discussion of the National Day Laborer Organization, where
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Can Defendants be Trusted to Self-Collect their own ESI Productions?
This week our blog has been discussing U.S. District Judge Shira A. Scheindlin’s opinion in National Day Laborer Organizing Network, et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012), which raises the question of whether defendant custodians can be