Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of June 29-July 5. Here’s what’s happening.
Self-Collection a Rule Violation
A recent finding by a federal judge in New York is an important reminder of Federal Rule of Civil Procedure 26(g), writes Michael Berman on the EDRM Blog. Called the “stop and think rule,” Berman writes, it came into play in Grullon v. Lewis when the plaintiff filed a motion to compel against the defendants.
The motion alleged that defense counsel allowed their “clients to be the judges of what is relevant and responsive” leading to “critical” documents being withheld. According to the court, both parties provided deposition testimony indicating that the defendants had been conducting searches of their devices and accounts with minimal, if any, oversight by their counsel.
In its finding that Rule 26(g) was violated, the court quoted the rule — “By signing a discovery response, an attorney certifies that the response is ‘complete and correct’ to the best of the attorney’s ‘knowledge, information, and belief formed after a reasonable inquiry.’” — and wrote that it was “unreasonable to assume that Defendants themselves are conducting a reasonable search without counsel’s involvement, especially considering that one Defendant has been a minor for much of the litigation.” In support, the court cited a 2020 matter, Herman v. City of New York, quoting: “It is not appropriate to take a client’s self-collection of documents, assume it is complete, and not take steps to determine whether significant gaps exist.”
An eDiscovery partner can be a great resource in these situations. They can take the burden of searching for and collecting documents off the custodian’s shoulders, ensuring that the processes, methodologies and tools used for gathering documents are thorough and defensible.
Why “Sufficient to Show” Beats “Any and All,” Most of the Time
In an article on his own website, Berman advocates for requests for production using the term “sufficient to show” as opposed to “any and all” citing Sedona Conference guidance. When crafted to seek documents within the scope of discovery that is proportional to the needs of the case, “sufficient to show” requests often overcome objections. For example, Berman writes that a recent request for production was granted for “Documents sufficient to show Your liabilities from 2013 to the present on a monthly basis.”
There are a few exceptions, however. From the Sedona Primer: “Any and all” requests may still be appropriate for documents that go to the heart of the claims or defenses and for which the full breadth of responsive materials may itself be instructive. In addition, “Any and all” requests may also be appropriate when the requests seek only a limited, knowable number of the documents. For example, in a slip-and-fall case, a party may request all surveillance footage of the incident.
Other recent eDiscovery news and headlines:
[View source.]
