Category Archives: 8 – Production

Court Rejects Attorney’s Computer Illiteracy As Excuse For Non-Production

Link to blog entry by Ralph Losey posted on e-Discovery Team, December 8, 2007:  Technical Ignorance in invalid grounds for inaccessibility under Rule 26(b)(2)(B)

Plaintiff’s counsel in a district court case in Colorado lacked the technical ability to open and read most of his client’s emails. He figured that since he could not read them, he did not have to produce them. Instead of producing the thousands of emails on a DVD containing his client’s college email, he just produced the ten he could read, and ignored the rest. Garcia v. Berkshire Life Ins. Co. of America, 2007 U.S. Dist. LEXIS 86639 (D. Colo. Nov. 13, 2007)….

Producing Electronically Stored Information

Article by John P. Scordo and Kristine Russo Begley, Day Pitney LLP, posted on The Metropolitan Corporate Counsel, December 2007:

As technology advances, the need for discovery of electronic communications and information increases and raises questions concerning the proper form of production for electronically stored information (ESI). The December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) were designed to facilitate early communication regarding the production of ESI and to allow litigants to request specific production formats. Litigants should be aware of the various forms of production available, the issues that have arisen, and the cost and practicality of utilizing those forms….

Day Casebeer Partner Is Central to Qualcomm Discovery Mess

Article by Jessie Seyfer posted on, October 4, 2007:

In the fallout from a high-stakes discovery meltdown involving Qualcomm Inc., Day Casebeer Madrid & Batchelder partner Lee Patch has emerged highly contaminated.

According to fresh declarations filed Wednesday, Patch signed off on a junior Day Casebeer partner’s decision to withhold 21 potentially damaging e-mails from Qualcomm’s litigation opponent, Broadcom Corp….

Avoiding The Review And Production Money Pit: Strategies For Maximizing Cost Savings

Article by Jerry F. Barbanel and Thomas W. Avery posted on Metropolitan Corporate Counsel, October 2007:

The review and production phases of an electronic discovery project are laden with minefields destined to trap unsuspecting counsel. Effective project and time management are among the practical solutions that can significantly impact the outcome of a case and the related expenses. Equally critical is having an understanding of potential traps that can delay the processes and require the need for additional resources….

E-Discovery Update: Direct Inspection Of Opposing Party Source Documents

Article by Conrad J. Jacoby posted in, September 28, 2007:

Civil litigation in the United States is a largely self-policing activity that requires litigants to trust that their opponents are playing by the same rules as they are. Through the interface of their legal counsel, litigants who may personally (and deeply) dislike each other are nonetheless expected to cooperate in arranging the parameters of fact discovery and other logistical aspects of a case. And amazingly, more often than not, this system actually works. Sometimes, though, a party may strongly believe that their opponents are holding back relevant discovery materials in violation of their legal obligations to turn them over. If the materials are thought to be important enough, one option open to requesting parties under both federal and state rules of civil procedure is to ask the judge to permit them to inspect the materials directly instead of relying on the producing party to organize the materials for them. Such requests have been made for both hardcopy and electronic materials for many years, though somewhat remarkably for the constantly-evolving law of e-discovery, most courts have consistently denied this relief, finding it unwarranted and overly intrusive….

How to Go Native Without Going South

Article by Craig Ball posted on, September 27, 2007:

I could hear the frustration in her voice. “We keep going back and forth with the plaintiff’s lawyer. I don’t understand what he wants. Can you help us?”

Defense counsel was trying to satisfy an opponent bent on getting e-mail in “native file format.” With each disk produced, the plaintiff’s lawyer demanded, “Where’s the e-mail?” Now he was rattling the sanctions saber. Poring over copies of what she’d produced, defense counsel saw the e-mail. “Why can’t he see it?”

Reviewing the correspondence between the counsel, I spotted the problem. The e-mail was there, but in rich text format. Like many lawyers new to e-discovery, defense counsel regarded electronically stored information and native data as one and the same. They’re not.

The IT department had dutifully located responsive e-mail on the mail server and furnished the messages as RTF, a generic format offering easy access and electronic searchability. Any computer can read RTF, so it’s a reasonable choice. But it’s not the native format….

Electronic Document Redaction and the FTC

News article by Stephen Stine posted on ABA Site-tation:

The FTC has slipped up and inadvertently disclosed trade secrets and confidential and proprietary information about Whole Foods’ business strategies and operations to the public, through data that FTC lawyers had attempted to redact but which remained electronically accessible in a publicly available electronically-filed court document….