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Federal Rules of Evidence

The Way eDiscovery Should be Done….

Can Attorneys Rely Exclusively on the Power of FRE 502 (d)?

      The Federal Rules of Evidence (FRE) has some very specific language under the section “Attorney-Client Privilege and Work Product; Limitations of Waiver.  The idea behind FRE 502(d) is straightforward;  to protect privileged information that is inadvertently exchanged during the eDiscovery process.  The problem, as is often the case, is more complicated and […]

“Self-Collection” is all the rage…Proposed New Federal Rule May Make it Even Easier to Perform

      There was an amazing amount of writing and analysis about last year’s changes to the FRCP that took place in December 2016 regarding eDiscovery, but much less attention has been paid to proposed changes to the Rules of Federal Evidence (FRE) which are due to take place in December 2017. Rule 902, […]

Daubert Expert Motions – Best Practices Should be followed to be Successful

Intro Challenging an expert witness is not like challenging a general witness. There are complicated rules outlined under Federal Rules of Evidence 702 and 703 that govern this procedure.   The procedure for Daubert motions resulted from the 1993 Supreme Court case, Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993).  Assuming that your motion […]

Best Practices for eDiscovery Document Format – Define it Early

I often talk about the need for lawyers to understand the Rules of Civil Procedure and how to use them to their fullest advantage and understand what committing to certain procedures may mean in the future. In preparing for the Meet and Confer, it is wise to bring along your technical staff so that a […]

Know The Law, Know The Technology: Where Do Ethical Rules Fit?

It’s not news that we are living in a totally digitized world.  What is not clear is whether the ethical standards that currently exist are complete enough to guide attorneys through the current climate.   Lawyers have been bound by some fundamental ethical requirements since the beginning of the profession, but technology, and particularly the eDiscovery […]

Learn to Cooperate with Opposition Counsel or the Court May Decide For You

In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014) the court decided to step in and force cooperation because the parties were not making any progress. This is a trend that is growing, but judges don’t look favorably on parties that make their lives difficult for no real reason.   […]

Are Corporate Emails Always Corporate Business Records? Look to FRE 803

FRE (803(6) is one of those unassuming rules that has become so “accepted” over time that the terms for qualifying certain records has been virtually unchallenged during the course of litigation.  In fact, corporate emails are routinely turned over to the opposition as part of the eDiscovery process once they have been reviewed only for […]

Release Legal Holds and Then Dispose of Electronically Stored Data

In theory, releasing a legal hold is a fairly straightforward process.  When a matter is resolved, preservation obligations are lifted.  The legal team then informs custodians and data keepers that they are no longer required to retain electronically stored information (ESI), and  that the normal disposition policies are restored. In practice however, many organizations struggle […]

Rule 37 ‘Safe Harbor’ Implementation can be Effective in Escaping Spoliation Issues

Summary: In a large mass civil lawsuit, defendant Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) was able to avoid sanctions because the destruction of a key custodian’s emails occurred prior to the trigger and in accordance with the company’s document retention policy. Chief Judge David R. Herndon included a thorough analysis in his Case Management Order issued […]