Julie Lewis, President, CEO and Founder of Digital Mountain, has over 20 years of experience working in the high technology industry and is a frequent speaker on electronic discovery, computer forensics and cybersecurity. After working on over 1,000 computer forensics and e-discovery cases for over a decade, Julie has provided us with  some simple tips for successful eDiscovery planning:

  1. Meet and Confer.  For litigation, it’s important for the Plaintiff and Defense to be on the same page on search criteria and production output. This should always be in writing and helps prevent costly issues downstream.
  2. Be Transparent on Your IT Environment.  If there are limitations or hurdles caused by what is being requested, be transparent on what issues exist and try to communicate back in terms of concrete cost estimates or delays based on what is being requested. Counteracting a request with generic terms such as the request is “unduly broad” doesn’t mean much to the opposing side, arbitrator or judge. Some data issues are complex and it’s more optimal to communicate an analogy, so the opposing side, arbitrator, judge or jury can more quickly understand the issues at hand.
  3. Keyword Hit Report Sharing.  If using keywords, have a hit report performed before exporting results from the data population. If a keyword hit results in a voluminous number of documents, consider having open communications why a mutually agreed upon keyword may not have produced the intended resulted or yielded false positives no one anticipated.  Have an out for adjustments if needed. The receiving side of a production does not want to be data dumped.
  4. Compressed, Compounded and Database Files. Not all compressed and compounded files are caught by search technologies. Make sure the processing techniques the e-Discovery provider is using is catching all the data in the search.
  5. Exception Reports.  If documents are not being indexed, ensure the exception report is reviewed. For example, encrypted files with the main smoking guns may have been missed by the search and you will never know if you don’t request and review the exception reports.
  6. User-created File Filtering.  When dealing with laptops and desktops, it’s important to exclude the system, program and junk files. The De-NIST process which is based on known hash values of program and system files, can result in increased processing costs and yield more non-relevant files. It’s much more optimal to have a computer forensics expert who knows the operating system spend ½ hour-2 hours analyzing the computer for where relevant data is stored and have the export done from there. However, in the absence of not performing any filtering, De-NIST is better than doing nothing.
  7. Pictures and Video Files. If pictures or videos are relevant, make sure there is an exclusionary clause for this type of data since keywords won’t hit multimedia files. Pictures may be better viewed in gallery view programs and videos in native video players. There may be ability to cull the data down by metadata criteria.
  8. Smartphone Data. The smartphone analysis tools will only show what data the software can parse or make presentable for review because the software developer invested in creating technology to display the data. There may be messaging applications that the tool did not parse and additional relevant data may exist. It’s important to review what applications are on the phone. Many of the social media communications are only on the cloud and the smartphone is just connecting to the cloud, but it depends on how the App is designed. Also, the computer forensics tools utilized for smartphone communication parsing do not process data for review tools and companies such as Digital Mountain have developed specialized technology for this industry need.
  9. Search Criteria Should Include Analysis for Wiping Software and Deletion Activity if Computer Forensics is Involved. Make sure if the case involves computer forensics to build into the protocol a search for wiping software and deletion activity. Many attorneys consider the filtering criteria (keywords, file names and/or date range criteria), but forget this important last step. If you bring in a neutral computer forensics examiner, only the mutually agreed upon search parameters are allowed and their hands will be tied to report anything else unless this is built-in to the protocol.
  10. Application and Cloud Experience. With the proliferation of thin client computing, much of the data may be stored on the cloud. As a result, the producing organization may be subject to the limitations the cloud service provider has implemented. For example, litigation hold capabilities may not be an available feature.  Having an eDiscovery provider such as Digital Mountain that has application-specific expertise and a strong history preserving data within cloud environments such as G Suite, Office 365, Slack, Box, Dropbox, Salesforce.com, etc. can be helpful in navigating options that may be available and best practices.

May these top ten tips help in navigating discovery, so your focus can be on the merits of the case versus technical issues.

About a year ago I received an inquiry from a lawyer stating:

I’m researching whether the defendant can file a motion for a protective order after my motion to compel was already granted—I’m’ trying to find a case that precludes the protective order motion as a matter of law—res judicata perhaps?

This is a procedural issue and one that you need to be familiar with all the ins and outs of the Code of Civil Procedure as well as current case law because my answer is  “It depends

Failure to Promptly Bring a Protective Order

In the present scenario, the motion for protective order should have been filed during the time the response was due and should been heard at the same time as the motion to compel or the motion to compel further responses was heard.

Pursuant to Code of Civil Procedure sections 2030.090(a), 2031.060(a), 2033.080(a) a motion for protective order must be brought promptly and before the 30-day with which to respond to the written discovery, otherwise the objection may be waived.  See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1013. Case law also supports this position. In Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 CA4th 263 the court held that the waiver of attorney client privilege occurs by failing to raise the objection in the initial response.  See California Civil Discovery Practice, 4thEdition (CEB 2018).  Thus, a motion for protective order should be denied if it wasn’t file within the 30-days to respond.

However, there is ONE case that granted relief.  In the case of Standish v. Superior Court (1999) 71 CA4th 113 at page 1144, the Second District Court of Appeal held “that upon a proper showing a party may—even after it has waived its right to object to the production of documents, and has produced most of the documents requested–seek a protective order restricting the production of documents” See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1031.  Be careful as this case may be distinguished because it involved trade secrets.

Did the Party File a Motion Seeking Relief from the Waiver of Objections?

A party may seek relief by way of a motion from the waiver of objections to interrogatories and/or a request for production of documents by (1) serving a substantially compliant response and (2) a declaration that the party’s failure to serve a timely response was the result of mistake, inadvertence or excusable neglect.  See C.C.P. sections 2030.290(a) and 2031.300(a).  As with the motion for protective order, the motion for relief of waiver may not be raised in opposition to the motion to compel, but in a separate motion and therefore should be made promptly so it can be heard with the motion to compel or motion to compel further responses.

Remember requests for admissions are different.   For requests for admissions there is a time constraint as party seeking relief must do the above prior to the hearing on the Motion to Have Admissions be Deemed Admitted.  If a party so complies, then the relief must be granted.  See C.C.P. section 2033.280(a)(1),(2) and Request for Admissions–The Motions.

Did the party argue for a protective order or relief from the waiver in the opposition papers?

Though it would be procedurally incorrect to argue for a protective order and relief from waiver only in the opposition papers, in this case the issue was before the court and considered.  Thus, any motion for protective order or motion for relief of waiver would be seen as trying to get another bite of the apple with the same facts and arguments.

Motion for reconsideration

Another motion that can be brought is a Motion for Reconsideration pursuant to C.C.P. section 1008(a).  However, the scope of that motion is limited, as it is made after the negative ruling and the motion must be:

  • brought before the same judge that made the order;
  • “made within 10 days after service upon the party of notice of entry of the order.”
  • Based on “new or different facts, circumstances of law” than those before the court at the time of the original ruling;
  • Supported by declaration stating that the previous order, by which judge it was made, and the new or different facts, circumstance or law claimed to exist; and
  • Made and decided before entry of judgment. See Weil and Brown,  Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324

The name of the motion is not controlling.  The above requirements apply to any motion that asks the judge to decide the same matter ruled on.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶9:324.1 citing R&B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 CA4th 327, 383.   Therefore, any motion for protective order or motion for relief from waiver from the court’s order granting the motion to compel must follow the requirements for a motion for reconsideration.

Filing a writ or appeal

The final avenue to seek relief is from the Court of Appeal.  See my discovery blog “Obtaining Review of Discovery Rulings.”

A plaintiff counsel writes in asking for advice:

 “Today is July 7th.  Trial is July 31.  Discovery cut-off was July 1 and expert discovery closes on July 16th.  Well, my client sought additional treatment on June 25thwith a neck, back and spine specialist. The results of the visit were provided to me on June 26th and I immediately mailed the results to opposing counsel that day. Now opposing counsel is stating the discovery is after the cutoff and inadmissible and the doctor  can’t testify because expert disclosure has passed.   I’m really worried about whether I will be able to use the evidence and if so, how I will be able to use the evidence?”

Opposing counsel is blowing smoke at this young lawyer.

The facts are that plaintiff is still treating for his injuries and plaintiff counsel immediately provided the medical records to defense counsel five weeks before the start of trial.

Though discovery closes 30 days before trial, both plaintiff and defense counsel should have been proactive so that neither side was prejudiced regarding the new information.  The alternative is plaintiff being barred from using the information, or the defense proceeds to trial without a chance to fully discover the ramifications of this new information.

Upon receipt of the medical records from the new treating physician, the parties should have met and conferred.  The parties should have been willing to do the following:

  • Waive the discovery cut off dates governed by CCP §2024.020(a) so defense counsel can conduct discovery regarding the new treatment;
  • Waive the notice time to take the deposition of the specialist on a mutually agreed upon date;
  • Plaintiff agree to provide an authorization so defendant can to obtain a copy of the medical records from the specialist without the need and time delays of serving a subpoena;
  • Plaintiff agree to be produced for an additional period of time for deposition regarding the diagnosis and treatment by the specialist;
  • Plaintiff agree to submit to an independent medical examination if one has not already been taken and augment their expert witness list if necessary;
  • Defendant agree to allow plaintiff to augment their expert disclosure list to name the specialist;
  • Agree to continue the trial date for 60 or 90 days so the parties can conduct the necessary discovery regarding the new information.

If the parties could not reach such an agreement, then either side should  have brought an ex parte application for an order shortening time to hear any of the following motions:

Motion to Reopen Discovery   See CCP §2024.050;

Motion to Augment Expert Disclosure List   See C.C.P. §2034.610; and/or

Motion to Continue Trial for 60 – 90 days to complete discovery regarding the new information.  See CRC Rule 3.1332

More likely than not, the court would grant these motions as a trial continuance would alleviate defendant’s and plaintiff’s prejudice concerning the new information as the court will not condone an ambush by the plaintiff, nor lying in wait by the defense to move to exclude critical information.

The moral of the story is that, like many other discovery issues that arise,  the purpose of discovery  is to “educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

 

 

 

 

 

 

 

 

In this blog I have asked that lawyers write in if there was a topic they would like me to address.  I have received many requests over the years and the next couple of blogs will be responding to some of these requests.  Here is the first one.

“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”

A party’s ability to request documents from the other side is one of most important tools in any discovery plan.  Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense.  However, as it has been said over the years, “The document speaks for itself.”  The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position.  This makes not only the document production important, but the response is just as important,  as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.

Continue Reading Aren’t I Entitled to a Privilege Log?

Effective January 1, 2013 and subject to certain exceptions, the duration of a witness deposition was limited to seven hours of total testimony. (CCP §2025.290(a).) The limitation brought the California statute consistent with existing federal law, which has a similar seven-hour rule. (See FRCP Rule 30(d)(1))

CCP §2025.290(b) sets forth six circumstances where the seven-hour limit does not apply–by stipulation, expert witnesses, complex cases, employment cases, person most knowledgeable depositions, and a new party to case when the deposition has already concluded.

However, the seven-hour rule is not entirely rigid, and it does not give the court unfettered discretion in shaping its application.

CCP §2025.290 is also consistent with FRCP Rule 30(d)(1) as it states:

The court SHALL allow additional time, beyond any limits, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. [emphasis added]

In Certaineed Corp. v. Superior Court (2014) 222 CA4th 1053, the Second District Court of Appeal found that:

“The court may order extended time for depositions beyond the limits in CCP §2025.290(a), including the 2-day limit in CCP §2025.290(b)(3), and MUST DO SO if additional time is needed to fairly examine the deponent and no other reason exists to limit the deposition.” California Civil Discovery Practice (CEB 2018) [Emphasis added]

To deny a party the right to “fairly examine the deponent” defeats the basic purpose of discovery which is to“educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary.  Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 C.2d. 335, 376.

Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 CA4th 377, 389)

“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.”  Deyo v. Kilbourne (1978) 84 CA3d 771, 779

Continue Reading Why You Need to Bring that Motion To Compel Further Responses to Interrogatories

In the case of Victalic Company v American Home Assurance Company the First District Court of Appeal made it very clear that denials to Requests for Admissions are inadmissible.   Here is the court’s reasoning starting at page 23 of the published opinion:

Gonsalves v. Li (2015) 232 Cal.App.4th 1406 (Gonsalves) involved an automobile accident. Plaintiff called defendant as an adverse witness and asked about his qualified denials of plaintiff’s RFAs that he was responsible for the accident. And in closing argument, plaintiff emphasized that the denials were evidence defendant refused to take responsibility for plaintiff’s injuries. (Id. at p. 1413.) The jury returned a verdict for plaintiff for $1,208,642.86. (Id. at p. 1411.) Our colleagues in Division Five reversed, holding it was error for the trial court to allow questions about RFAs.

Continue Reading Denials to Requests for Admissions are NOT Admissible

 

Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

**************************************************************************************************

As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

I received a comment about one of my blogs saying:

Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing.  One dope sent me objections that were over 100 pages.

I have written many blogs regarding how to handle discovery abuse by opposing counsel.  These include filing motions to compel further responses, filing motions for protective orders and how to recover sanctions.

Continue Reading DO YOU KNOW WHAT YOUR OBLIGATIONS ARE IN RESPONDING TO WRITTEN DISCOVERY?

Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s  toolbox  is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs”  gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears.  Below is his article.

Continue Reading How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of Documents