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Thought leadership, news, and updates from CODISCOVR.
The Pitfalls of Self-Collection in Electronic Discovery – A Caselaw Update
April 18, 2024
A recent decision in an employment case highlights the risks that parties assume when they search and collect electronically stored information (ESI) by themselves. The decision stresses that a search conducted without the supervision of attorneys and technical or forensic experts raises significant questions about the thoroughness and accuracy of the search as well as concerns about spoliated evidence. Therefore, such a search is likely to derail the schedule of the litigation with motions to compel that could lead to sanctions.
Cozen O'Connor E-Discovery Biz Adds West Coast Member
April 11, 2024
In a recent announcement, Cozen O'Connor revealed the addition of Caitlin Oyler to their Codiscovr team, marking the first West Coast-based member. Oyler, who joins from Redgrave LLP, brings over three years of experience in e-discovery and information governance. Her expertise spans all phases of the e-discovery life cycle, including advising clients on complex litigation and investigations.
CODISCOVR Adds Veteran eDiscovery Counsel Caitlin Oyler, Opens West Coast Office
April 09, 2024
CODISCOVR, an ancillary business of Cozen O’Connor focusing on eDiscovery and information governance, today announced Caitlin Oyler joins the team as counsel and will practice out of the firm’s Los Angeles office. Oyler is the first CODISCOVR member on the West Coast.
Taylor’s Swift and Hard Lessons in E-Discovery – A Caselaw Update
April 03, 2024
A salacious case, involving a groping allegation by superstar Taylor Swift, offers two sober lessons about e-discovery: (1) the difficulty of prevailing on a request for an adverse inference to be drawn from spoliation of evidence; and (2) the critical importance of seeking lesser discovery sanctions in a timely manner prior to seeking the adverse inference sanction.
Organizations Know What Their Employees Know – A Caselaw Update
March 12, 2024
A recent decision in a whistleblower case against a nonprofit sports association and its employees makes clear that an organization has the right to take back electronic devices in the possession of a co-defendant employee when the devices are owned by the organization. Moreover, the decision stresses that the defendant organization is prejudiced without these devices because an employee’s knowledge is imputed to the organization, and it needs the devices to learn what the employee co-defendant knew and did.
When Can a Party Compel the Production of a Personal Laptop? – A Caselaw Update
February 28, 2024
A recent decision ordering the production and imaging of an entire personal laptop provides guidance as to when such a drastic measure is appropriate. This decision serves as a reminder that discovery is meant to allow parties broad access to information that is relevant to any party’s claim or defense, and that the consequences of not complying with appropriate discovery requests for electronically stored information (ESI) can lead to significantly more intrusive discovery being ordered against the producing party.
You Get What You Get and You Don’t Get Upset (E-Discovery Edition) – A Caselaw Update
February 21, 2024
A recent decision in a case relating to the sale of a medical practice provides a reminder of how important it is for a party to specify its preferred electronically stored information (ESI) production format in the discovery requests or the ESI protocol. Otherwise – so long as the ESI is produced in the form in which it is ordinarily maintained or in a usable form – the requesting party is not likely to be successful in compelling reproduction of the ESI in a different format.
Clawback Orders Can Prevent Fighting Tooth and Claw Over Discovery – A Caselaw Update
February 07, 2024
In a recent case involving an administrative summons issued by the IRS, a federal court denied the respondent’s request for a clawback order under Rule 502(d) of the Federal Rules of Civil Procedure. The court’s analysis hinged on the fact that a summary proceeding before the IRS is unlike civil litigation, in which 502(d) orders are routinely entered to allow the return of documents that a party belatedly determines are protected by the attorney-client privilege or the work product doctrine. A 502(d) order allows parties to claw back inadvertently produced privilege documents with “no questions asked,” while such documents are otherwise handled under Rule 502(b), which requires a party to make a number of showings before it is allowed to claw back documents.
Yours, Mine, or Ours? Can Employees Claim Privilege over Employer-Issued Email Accounts? - Case Law Update
January 24, 2024
An employee found out the hard way that utilizing her work email account to communicate with her personal attorney was a risky choice, after the court considering her employment discrimination claims found that any privilege related to such communications had been waived.
Know Thyself (And Thy Own Discovery Obligations) -- A Case Law Update
January 03, 2024
A recent decision involving a business dispute over the sale of a company illustrates the standard a party must meet to compel designation of an ESI custodian: the judge denied the motion, finding it was the movant’s burden to show that the additional requested custodians were in the possession of “uniquely relevant information” and not the respondent’s responsibility to prove that they were not. This deference to the responding party is directly aligned with Principle 6 of the Sedona Principles, which provides “[a] responding party should determine how to meet its own preservation and production obligations.”
Even Judges Get Fed Up at Some Point – Case Law Update
December 08, 2023
The judge in an employment case against the New York Fed grants in part and denies in part a motion for discovery sanctions after finding the plaintiffs’ repeated discovery failures constituted intentional bad faith and wasted Court time and resources.
CODISCOVR at the Construction Super Conference
December 05, 2023
CODISCOVR’s Joseph Tate, Nicole Gill, and Kenneth Carruth were proud exhibitors at the Cozen O'Connor-sponsored Construction Super Conference last week.
Should Personal Cell Phones be off the eDiscovery Radar? – Case Law Update
November 29, 2023
In a trade secret case, a federal district court orders the imaging of employees’ work laptops, but not their personal cellphones.
Exporting Data from the People's Republic of China 2024
November 21, 2023
On Wednesday, January 10, 2024, Nicole Gill will speak on the “Exporting Data from the People’s Republic of China” panel at the Sedona Conference Working Group 6 (WG6) Annual Meeting.
Speak for Yourself! – A Case Law Update
November 07, 2023
A plaintiff is reminded that Rule 45 does not permit parties to object to third-party subpoenas on burden or relevance grounds.
When Phone-y Evidence Leads to Case Terminating Sanctions – Case Law Update
October 24, 2023
The U.S. Court of Appeals for the Second Circuit upheld a district court’s decision to terminate a case and impose attorney fees and costs as sanctions for the plaintiff’s fabrication and spoliation of evidence.
Generative AI and Federal Rules of Civil Procedure: Is It Meant To Be?
October 17, 2023
Nicole Gill recently contributed to an article for Legaltech News on how, if adopted more broadly by e-discovery professionals, generative AI could impact some proceedings and even challenge the Federal Rules of Civil Procedure that govern them—though how soon such an impact could be felt is likely too early to tell.
Impossibility Is Not a Ticket Out of ESI Protocol Compliance – Case Law Update
October 11, 2023
Stubhub was chastised in a recent discovery order for agreeing to an ESI protocol, failing to produce documents according to the terms of the protocol, and then arguing that compliance with the protocol was impossible.
Spoliation Argument Gets Frosty Reception from Court Absent Intent – Case Law Update
September 28, 2023
A Maryland court denied a plaintiff’s motion for spoliation sanctions, finding that he did not meet his burden of demonstrating that the defendants had an “intent to deprive” him of lost data.
I Never Met-a-data I Didn’t Want to Collect – Case Law Update
September 12, 2023
In a case before the U.S. District Court for the District of Vermont, the court largely rejected the defendants’ arguments to avoid supplementation to their discovery production, and granted in part the plaintiff’s motions to compel.
Attorneys Must be in the eDiscovery Driver’s Seat – Case Law Update
August 25, 2023
A federal court considering a products liability case cautioned that attorneys may not rely on custodial self-collections and must instead test the accuracy of their clients’ discovery efforts.
This Director’s Emails Are Out of Control – Case Law Update
August 10, 2023
A federal court recently addressed a party’s request for access to the personal email account of the opposing party’s Director of Operations, finding that the requesting party failed to meet its burden of establishing that the account was in the opposition’s “control.”
AI Is Not Just eDiscovery’s Future — It’s Also Its Past – Thought Leadership
July 24, 2023
Lawyers can and should embrace generative AI technology for use in the eDiscovery context, utilizing a trust-but-verify approach — just as we have done for other AI technologies.
Nicole Gill Selected to Participate on Sedona Conference Working Group – Good News
July 18, 2023
Previously part of a brainstorming group, Gill will now be part of the drafting team to develop commentary on the topic of Exporting Data from the People’s Republic of China.
A Relevant Decision Regarding Relevancy Redactions – Case Law Update
June 28, 2023
In a recent contract dispute, the court held that relevancy redactions were allowable even though a protective order was in place.
Things Get Spicy When McCormick Attempts Document Dump in Contract Dispute – Case Law Update
June 13, 2023
A recent decision found that a party was required to review documents for relevance before producing them, relying on an ESI protocol provision stating a party’s obligation to conduct a reasonable search for documents.
Order’s Up: No Spoliation Sanctions for Cook’s Failure to Back-up Stolen iPhone – Case Law Update
May 31, 2023
A recent decision declined to find the requisite “intent to deprive” when a plaintiff was unable to produce text messages because his phone had been stolen and he had not taken measures to back up its contents, despite initiating litigation almost a year prior to the theft.
An Agent’s Emails are Within a Golfer’s Control: No Ifs, Ands, or Putts About It – Case Law Update
May 11, 2023
Joe Tate and Nicole Gill offer insight on a decision regarding possession, custody, or control in a recent case between PGA, Inc., and professional golfers.
Diverging "Possession, Custody, or Control" Tests Impact eDiscovery Outcomes—But Is a Uniform Standard Feasible? – Thought Leadership
May 08, 2023
CODISCOVR Counsel Nicole Gill was recently quoted in an article for Legaltech News on how diverging possession, custody, or control tests impact eDiscovery outcomes.
A Bad “Chat-titude” Regarding Discovery Can Lead to Sanctions – Case Law Update
May 05, 2023
In a recent decision, Google was sanctioned for its failure to suspend the auto-deletion of internal Google Chat messages following the issuance of a litigation hold
Cybersecurity Risks in Legal Practice – CLE Opportunity
May 03, 2023
On Tuesday, May 9, 2023, CODISCOVR Managing Director Joe Tate will be on the panel of Villanova University Charles Widger School of Law's upcoming CLE program.
Don’t Cry Over Spoliated Milk: The City of Seattle’s Egregious Spoliation of Text Messages – Case Law Update
April 18, 2023
A recent decision illustrates the importance of ensuring data is properly preserved following the onset of litigation.
Cautionary Tale: Make Sure Your Discovery Team Excels at Redactions – Case Law Update
March 23, 2023
This Justice Department mishap illustrates the importance of avoiding inadvertent disclosures of confidential information, which are difficult to put “back in the box” once it has been viewed by opposing counsel.
Practical Advice on Privilege Logs for Complex Cases – CLE Opportunity
March 22, 2023
On Wednesday, March 29, CODISCOVR Managing Director Joe Tate will speak at this CLE class in Washington, D.C., for new and more experienced attorneys alike seeking practical tips on drafting privilege logs.
TSCI Presents 2023 eDiscovery Negotiation Training: Practical Cooperative Strategies – CLE Opportunity
March 21, 2023
On Friday, March 24, CODISCOVR Managing Director Joe Tate will speak at The Sedona Conference Institute's program in Atlanta, Georgia, focused on practical strategies to avoid or resolve conflicts that commonly occur around electronically stored information.
Joe Tate Promoted to Member at Cozen O'Connor – Good News
March 20, 2023
CODISCOVR Managing Director Joe Tate has been promoted to Member at Cozen O'Connor.
You Can’t Always Get What You Want—But You Might Find, You Get What You Need – Case Law Update
March 07, 2023
Judges will ultimately determine the proportionality of discovery based on what they believe is essentially needed. That need is best defined by an appropriately negotiated ESI protocol with reasonable search terms.
Possession, Custody, and Control in the Era of eDiscovery – Thought Leadership
March 03, 2023
While the concepts of possession, custody, and control have blurred in our electronic world, there are a few emerging trends. CODISCOVR Counsel Joe Tate and Nicole Gill share insight.
What Keeps Philadelphia Law Firm Leaders Up at Night? Circumventing Practice Management Land Mines in Small & Mid-Sized Law Firms – CLE Opportunity
February 23, 2023
On Thursday, March 16, CODISCOVR Counsel Joe Tate and Nicole Gill, will speak at this seminar focused on workplace security, data protection, and crisis communications for small to mid-sized law firms.
The Intersection of Information Governance and eDiscovery – CLE Opportunity
February 02, 2023
On Tuesday, January 24, CODISCOVR Counsel Joe Tate and Nicole Gill spoke to the Association of Corporate Counsel's Litigation Network about the intersection of information governance and eDiscovery.
Exporting Data From the People's Republic of China
November 21, 2022
Nicole Gill will speak on the panel “Exploring Data From the People’s Republic of China” at The Sedona Conference Working Group 6 (WG6) Annual Meeting.
Nicole Gill Selected to Join The Sedona Conference Working Group Series 6 Brainstorming Group
November 16, 2022
Nicole Gill has been selected to join The Sedona Conference Working Group Series 6 Brainstorming Group (WG6) on the Data Security Law and Personal Information Protection Law in the People’s Republic of China.
‘Jacks and Jills of All Trades?’ Hard-to-Get eDiscovery Project Managers Face Growing Workloads
October 21, 2022
Joe Tate was quoted in an article published by Legaltech News that discusses organizations’ struggle to hire and retain eDiscovery project managers.
Sedona Conference’s 2022 eDiscovery Negotiation Training
April 05, 2022
Joe Tate and Nicole Gill attended the Sedona Conference's 2022 eDiscovery Negotiation Training.
How Information Governance Impacts the eDiscovery Process
February 04, 2022
Joe Tate and Nicole Gill published an article to The Legal Intelligencer discussing how as the eDiscovery lifecycle has matured, information governance has taken on a more prominent and important role as the foundational stage of the process.
Technological Solutions for eDiscovery Professionals
December 08, 2021
Nicole Marie Gill and Emily Plowcha published an article to Bloomberg Law discussing technological solutions for eDiscovery professionals when working remotely.
Inexperienced Attorneys Can Absolutely Get eDiscovery Jobs, But First They Need eDiscovery Experience
October 28, 2021
Joe Tate was quoted in an article published by Legaltech News discussing how he hasn’t seen the demand for eDiscovery talent in the market this high in years.
Ethical Challenges of Conducting eDiscovery in a Remote Work Environment
February 05, 2021
Joe Tate and Emily Plowcha contributed an article to The Legal Intelligencer discussing how the remote work environment has significantly impacted eDiscovery and the ethical obligations of attorneys in the ever-evolving technological and legal landscape.