Category Archives: James Cortopassi

FRCP CHANGES AND EDISCOVERY: LESSONS FROM RECENT CASES

FRCP Changes and eDiscovery: Lessons from Recent Cases

On December 1, 2015, amendments to Rules 16, 26, 34, and 37 of the Federal Rules of Civil Procedure (FRCP) took effect, and LITeGATION published a post about this topic, here: modifying requirements related to electronically stored information (ESI).  Among other things, these changes included: (1) Under Fed. R. Civ. P. 16(b)(3)(B)(v), a court’s scheduling order may direct parties to request a conference with the court before filing discovery motions, including moving for ESI production; and (2) Under Fed. R. Civ. P. 26(f)(3), “A discovery plan must state the parties’ views and proposals on any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.  These modifications, in conjunction with existing rules regarding ESI, have made it increasingly important for parties to utilize detailed, precise, and efficient eDiscovery practices.  Recent cases addressing the FRCP’s rules regarding ESI provide both cautionary tales and points of guidance for litigators engaging in eDiscovery.

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For example, recent cases underscore the importance of discovery plans taking into account the scope, method of productions, and timeframe for eDiscovery.  In Bailey v. Brookdale University Hospital Medical Center, No. CV 16-2195 (ADS) (AKT), (E.D.N.Y. June 16, 2017), a single-plaintiff employment discrimination action, the parties negotiated and executed an ESI agreement after the court had conducted an Initial Conference with the parties in accordance with Fed. R. Civ. P. 26(f).  At the Initial Conference, the court instructed the parties to reach a written agreement regarding the production of ESI, including the use of custodians, search terms and the manner in which the production would take place (e.g., hardcopy or disc format).  Months after the court “so ordered” the parties’ ESI agreement, the plaintiff’s attorney sought to undo various provisions of the ESI agreement, claiming that the costs of ESI discovery would impose a severe financial hardship on Plaintiff.

In assessing this claim, the court noted that the general rule is that the responding party bears all costs of discovery production.  The court also noted that under Fed. R. Civ. P. 34(b)(2)(E), the responding party has the option of either producing ESI in the form requested by the opposing party or in the form in which the documents are kept in the usual course of business.  The court further emphasized that “the scope and parameters of ESI should be a party driven process.”  Looking at the specific parameters of the ESI agreement at issue, however, the court concluded that the agreement (which defendants had drafted) was drawn for use in a corporate setting as opposed to in a single-plaintiff employment discrimination case and that the plaintiff’s attorney did not engage in meaningful discussions with his client about the potential costs of ESI discovery.  In light of these facts, the court ordered that 40% of the plaintiff’s ESI costs be borne by the defendants and that the remaining 60% of costs be borne by the plaintiff’s attorney.  This result demonstrates the importance of parties both being knowledgeable about eDiscovery practices and willing to work diligently and conscientiously with their adversaries to reach workable discovery plans.  When discovery plans fail to provide efficient methods of production of ESI, parties and attorneys may bear significant costs.   As the court notes, “zealous negotiation and compromise” regarding the scope and methods of ESI discovery, early on in the litigation, can help avoid such issues.

Similarly, Bird v. Wells Fargo Bank, No. 16-1130(DAD-EPG), (E.D. Cal. July 20, 2017), another single-plaintiff employment discrimination case, addresses a party’s failure to conduct eDiscovery in accordance with discovery plans and scheduling orders.  On October 13, 2016, the parties submitted a Joint Rule 26(f) report jointly proposing a deadline for non-expert discovery cut-off of March 6, 2017, and noting that they did “not anticipate this action [would] involve significant electronic discovery issues.”  On March 1, 2016, however, the court held a status conference to address ongoing ESI discovery issues regarding the preservation of the plaintiff’s company email, search terms, the timeframe for ESI discovery, and the costs associated with ESI discovery.  The court provided informal guidance and instructed the parties “to meet and confer” about ESI discovery, but the parties were unable to resolve the issues collaboratively.  The court, therefore, concluded that “discovery . . . has completely broken down” and issued an order outing the scope and time frame for ESI discovery on March 31, 2017.  The court ordered Wells Fargo to: (1) produce eleven sets of documents by June 1; (2) disclose the scope of its search including any search terms, custodians or other limitations within two weeks from the order; and (3) produce a privilege log.

On April 28, 2017, the plaintiff filed a motion to compel and motion for sanctions, claiming that Wells Fargo was failing to comply with the court’s March 31, 2017, order.  In a joint statement filed May 27, 2017, Wells Fargo noted that it takes 6-8 weeks to pull ESI and additional time to review and redact the emails and it acknowledged that it was in the process of reviewing and redacting emails, but that it would not be able to provide the information by the June 1 deadline.  In fact, Wells Fargo had not produced any ESI between March 31 and June 1.   Wells Fargo finally produced responsive ESI discovery by July 3, 2017.   Focusing on Fed. R. Civ. P. 37(b)(2)(C), the court noted that it “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”  The court concluded that Wells Fargo had repeatedly failed to comply with discovery plans and orders, ostensibly in attempts to delay.  Accordingly, the court ordered Wells Fargo to pay 50% of the reasonable costs and attorney fees associated with the filing of the April 28, 2017 motion to compel and motion for sanctions.

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These two cases underscore the amended FRCP’s overall approach to ESI discovery.  Parties are expected to both hold an initial conference before the court and to “meet and confer” with the opposing party early on in the litigation to negotiate and plan ESI discovery.  Parties should anticipate the costs and timeframe associated with ESI discovery and should only agree to ESI discovery plans that are both economically and practically feasible.  When there are contested issues regarding ESI discovery, the court will hold additional conferences and provide informal guidance or orders to the parties.  When there are breakdowns in ESI production—due to the parties failure to negotiate an effective discovery plan, follow the discovery plans, or comply with the court’s directive—the court may impose sanctions and employ cost shifting methods.  In these ways, ineffective eDiscovery practices harm litigants (and litigators) by causing delays, limiting useful evidence, and imposing significant expenses.  As such, litigators engaging in eDiscovery should seek the aid of eDiscovery consultants to accurately estimate the costs and burdens of eDiscovery when negotiating discovery plans, ensure compliance with the FRCP, and avoid sanctions.

For information about our eDiscovery and ESI-coordination services, please contact LITeGATION.

James Cortopassi

James Cortopassi

James Cortopassi brings 20 years of litigation-support experience to his practice as a leader in eDiscovery coordination and trial technology. Mr. Cortopassi has managed over one-thousand cases involving forensic collections, data processing & hosted solutions, managed document review, ESI productions, trial technology services, and workflow-innovation. Mr. Cortopassi is a member of the Association of Certified E-Discovery Specialists (ACEDS) and the Electronic Discovery Reference Model (EDRM) Coalition.

 

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Preparing Your Expert Witness for Trial – Two Rules to Know

Preparing Your Expert Witness for Trial – Two Rules to Know

Having an expert witness who is prepared for the courtroom could be the key to winning your case. In order to do this, you have to prepare the expert for anything that may occur during a trial. You also want to prepare yourself. No one hates surprises more than an attorney in a courtroom full of people.

Expert Witness Qualification

The first thing you should do is make sure your witness qualifies as an expert under FRE 702 and that there is a purpose for your expert under FRE 703. It’s crucial that you go over these rules with your witness as opposing counsel will do anything possible to make objections to their qualifications and reliability of the witness’s studies.

FRE 702:

A witness qualifies as an expert based on their skill, knowledge, education, training, and education. An expert may testify in the form of an opinion if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.

It is important to go through FRE 702 to make sure that your expert qualifies under all of the above. If they do not meet those qualifications they are not an expert and the trier of fact would not learn anything from them being on the stand. If they do not qualify, and you place your witness on the stand, the opposing party is going to make a FRE 702 objection which they are going to win.

FRE 703:

Once you have determined that your expert is a witness, determine what your expert is basing their opinion on. If your expert is basing their opinion on fact or data from the case that the expert was personally made aware of, then there is a basis for your expert. Experts are also permitted to use information that is commonly used in their field of study that other experts would use. If there is no basis for your expert’s testimony, and it will not help the jury understand the case, your expert will become inadmissible.

Expert Witness Services NJ

Expert Witness Preparation

Next, you should prepare your witness for the courtroom. It is important that an expert witness knows the difference between the legal basis of the case and the factual issues that will help the jury to better understand what is happening in the matter presented before them. The expert is not there to provide the trier of fact with the law, they are there to help them better understand something that a lay person would not normally understand without the skill or knowledge of that of the expert.

One of the major steps in preparing an expert is to go over direct examination and cross examination. You want to be certain of what someone you are putting on the stand is going to say in an open courtroom.

Direct Examination:        

There are many benefits to preparing an expert for trial. One benefit being that your expert does not seem partial to one side or bias. Another benefit to expert preparation is to go over questions in advance that you may ask your witness when they are on the stand. You never want to blindly ask someone on the stand a question you do not already know the answer to. By preparing a witness, they will hear the questions in advance and you get the benefit of hearing the answers. You also get to prepare by asking questions in anticipation of what opposing counsel will ask so your expert knows what to expect.

Cross Examination:

When it comes to cross examination you want to make sure that your expert knows how to correctly respond to simple questions or questions that they do not know. Responding incorrectly could lead to a witness losing credibility. If opposing counsel asks a question, and the expert says they do not know in response to a question pertaining to their own study, they are going to lose their credibility and reliability of their own studies.

Demeanor and Dress:

Preparing your witness affords you the opportunity to make sure that their demeanor and dress is courtroom appropriate. You wouldn’t want a witness showing up in casual-dress, biting their nails or playing with their watch while on the stand. Going over this beforehand will ease your mind the morning of trial, as you will know for certain that your expert knows to dress and act professionally.

Demonstrations:

Prior to trial, go through the demonstrations that will be used at trial with your expert. This will afford you the ability to make sure everything works correctly. It will also allow you to see beforehand what your expert plans to use at trial and how it applies to your case. This will also afford you the opportunity to make sure that everything that you need in the courtroom for any demonstrations will be available during the trial. It would be quiet embarrassing if you were trying to play something on a DVD and there was not a computer handy to use. Not to mention you could have a major point on that DVD and may not be able to play it.

For more information in-line with such trial support and expert witness preparation services, or to learn more about our other litigation support solutions, please visit https://www.litegation.com.

 

Trial Technology Services NJ

James Cortopassi

James Cortopassi

James Cortopassi brings 20 years of litigation-support experience to his practice as a leader in eDiscovery coordination and trial technology. Mr. Cortopassi has managed over one-thousand cases involving forensic collections, data processing & hosted solutions, managed document review, ESI productions, trial technology services, and workflow-innovation. Mr. Cortopassi is a member of the Association of Certified E-Discovery Specialists (ACEDS) and the Electronic Discovery Reference Model (EDRM) Coalition.

LITeGATION | Mock Jury Solutions

At LITeGATION we offer trial simulations for a single day or multiple days. These can be supported by professional trial consultants, if desired. A Mock Trial is the experience closest to an actual trial, and allows you to present your case to a mock jury that matches the demographics of your possible jury. During this process, witness testimony, either in-person or on video, is presented along with demonstrative evidence.

Check out our Mock Jury video, here:  VIDEO

 

LITeGATION | Trial Technology & Demonstrative Services

 

By:  James Cortopassi – LITeGATION