Last week I had the honor of moderating the main-stage judges’ panel at the DRI Product Liability Conference in Austin, Texas. I was joined by three distinguished members of the Federal judiciary:
The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this approach is no longer acceptable in federal courts. December 1, 2015, marked the enactment of a substantial package of amendments to the Federal Rules of Civil Procedure that was driven in large part by concerns related to e-discovery and the production of electronically stored information (ESI). Although the amendments to Rule 26(b)(1) and Rule 37(e) have received greater attention, a major revision to Rule 34 will result in a more significant day-to-day change for litigators. Notably, objections to discovery requests must now (1) state with specificity the grounds for objecting and (2) state whether any responsive materials are being withheld on the basis of that objection. Additionally, producing parties must indicate when a document production will be completed.
Continue Reading Objections to Document Demands Under Amended Rule 34
The inadvertent disclosure of privileged material may haunt a company for years, particularly in today’s era of pattern litigation and increased collaboration within the plaintiffs’ bar. Fortunately, in matters pending in federal court, this consequence can be avoided through the use of Federal Rule of Evidence (FRE) 502(d).
The attorney-client privilege is arguably “the most sacred of all legally recognized privileges.” United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). As explained by the Supreme Court, “[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. ”Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Naturally, the importance of preserving privilege and avoiding waiver cannot be overstated. This is particularly true in the context of product liability litigation where certain documents may be repeatedly placed at issue across numerous lawsuits involving the same product model.
I am pleased to announce the availability of our firm’s updated publication, A Guide to ESI Preservation Responsibilities [updated January 2016]. I believe this white paper serves as a useful resource to anyone dealing with the complicated issue of preservation of electronically stored information (ESI), particularly in product liability matters.
The duty to preserve ESI and other evidence arises once litigation or an investigation can be reasonably anticipated. This duty has been addressed repeatedly in published opinions over the past few years and is well established across all litigation areas, including product liability. Nevertheless, as an e-Discovery practitioner, I receive a steady flow of inquiries from clients and fellow attorneys who are seeking to confirm whether a legal hold should be issued and, if so, the exact steps they must take to ensure defensibility.
During the past decade, the discovery of electronically stored information (ESI) has come to the forefront of litigation. In particular, e-Discovery has created significant challenges in product liability actions where plaintiffs can seek tremendous volumes of ESI while having virtually no document production burdens of their own. Perhaps some plaintiffs are truly seeking that one kernel of critical information (the proverbial “smoking gun”) that can support their allegations. But as in cases with asymmetric discovery, it seems that broad demands for ESI are made for the purpose of driving up defense costs, thereby increasing settlement values.