Pretrial Practice & Discovery

Practice Points

What you need to know in a quick-to-read format. Find all of the Pretrial Practice & Discovery Committee’s practice points in this archive.

2019

Making Attorney Fees and Costs a Clear and Unambiguous Part of Offers of Judgment
By Nolan T. Herslebs – November 5, 2019
Attorneys that fail to clearly and unambiguously address attorney fees and costs in offers of judgment risk exposing their clients to unexpected additional liabilities.

You Can’t Make a Federal Case out of Spoliation
By Michael Roundy – October 23, 2019
The proper remedy for spoliation is a motion for sanctions in the underlying case.

Five Tips for Deposing Testifying Experts’ Non-Testifying Collaborators
By Nancie Marzulla – October 23, 2019
Attorneys can use written discovery and depositions to make the case for deposing a testifying expert’s undisclosed “hand-in-glove” collaborators.

Surviving Daubert Challenges Through Early Expert Vetting
By Ebony S. Morris – October 10, 2019
The Seventh Circuit’s decision upholding the exclusion of a proposed expert on “charismatic groups” shows the importance of choosing experts with defensible methodologies.

Discovery Order Violations Do Not Support Terminating Sanctions for Unrelated Claims
By Andrew M. Toft – September 30, 2019
Courts tend to disfavor a shotgun approach in motions for sanctions.

Excluding Expert Opinions Endorsed but Not Prepared by the Expert
By Michael Roundy – September 30, 2019
Let experts prepare their opinions after conducting their own review of the facts and law.

The Mendacious Expert: A Cautionary Tale
By Andrew J. Felser – September 30, 2019
Make sure to review expert retention agreements closely for red flags.

Failure to Implement Litigation Hold May Lead to Sanctions or Forensic Examination of Your Client’s Computers
By Ashley J. Heilprin – September 30, 2019
Parties should act swiftly to implement a litigation hold as soon as litigation or a subpoena is reasonably anticipated.

Develop the Theory Up Front: Proposed Amendment Fails to Defeat Summary Judgment
By Joseph V. Schaeffer – August 30, 2019
Departure from the original theory of the case carries risks.

Scheduling-Order Violations Lead to Sanctions
By James Simon – August 30, 2019
Attorneys blasé toward scheduling orders should take note of a recent case out of the SDNY.

Excessiveness: A Discretionary Factor in the Ordering of Physical and Mental Examinations
By Angela S. Fetcher and Aaron Vance – August 30, 2019
Once the elements are satisfied, any further considerations are left to the discretion of the court.

Sanctioning the Conduct of an Expert Witness
By Angela S. Fetcher and Aaron Vance – July 31, 2019
While excluding an expert witness for improper disclosures is not rare, imposing sanctions for the expert’s “abhorrent” behavior is.

Protective Orders Hinge on Whether the Burden Outweighs the Benefit
By Angela S. Fetcher and Tommy Staffieri – July 31, 2019
The more specifically and directly a party phrases its requests to produce information, the more likely the information will be discoverable under Rule 26(b)(1).

“Garden Variety” Distress Does Not Warrant Discovery Requests for Medical Records
By Angela S. Fetcher and Elizabeth Clements – July 31, 2019
Parties can save themselves time and money by thinking carefully before seeking discovery on such sensitive issues.

The Devil is in the Details: Watch Out for Local Rules in Federal Court
By Ebony S. Morris – July 31, 2019
Lack of familiarity with specific rules can be costly and disruptive.

Nouvelle Vague: New Norms for ESI Discovery
By Angela S. Fetcher and Connor Cafferty – July 31, 2019
When the Sedona Principles change their approach to a topic, the bench and bar should take notice.

Know Your Rules: Adding or Dropping Parties under the Rules of Civil Procedure
By Dimitri DeChurch-Silva – July 31, 2019
Courts have been divided on whether rule to apply Rule 15 versus Rule 21.

Court Sanctions Lead to Denial of Opportunity to Pursue Motion to Dismiss
By Michael Roundy – July 31, 2019
The contentious Alex Jones litigation has raised a series of issues of interest that can arise in the pretrial phase.

Beware the Boilerplate: Reasonable Inquiry is Required for Discovery Responses and Objections
By Kaitlyn B. Samuelson – July 31, 2019
Rule 26(g)(3)’s mandatory sanctions may prove to be a wildcard.

Withdrawal of Counsel Is Limited by the Needs of the Case
By Michael Roundy – July 10, 2019
The outcome in the high-profile census citizenship question case drives home something all litigators should be aware of.

Willful or Wanton? District Court Sets Forth Standard on Sanctionable Attorney Conduct
By Margaret A. Viator – June 30, 2019
Counsel should be aware of the narrow grounds on which a court may grant an award for sanctions under its inherent authority.

Does Rule 41(a) Let You Dismiss a Party or Only an Action?
By Victoria L. Creta – June 30, 2019
Check before you file!

Adapting the “Ordinary Course” Production to ESI
By Carys A. Arvidson – June 30, 2019
Heartland Food provides helpful guidance on the isolation, categorization, and production of emails.

Make Timely Objections to the Cost of ESI Discovery
By Thomas E. Walls – June 30, 2019
Waiting can cost your client.

Do You Know about the Auto-Delete Feature for Text Messages on a Cell Phone?
By Tracy DiFillippo – May 31, 2019
Attorneys need to understand new technologies and applications when addressing ESI.

Discovery Fatigue Leads to Involuntary Appointment of Master
By Andrew J. Felser – May 31, 2019
The court has authority to impose another layer of cost and delay on your client.

Speaking Objections Risk Sanctions
By Michael Roundy – May 31, 2019
It can be too easy at times to forget the boundaries of professionalism.

“Gotcha” Waivers in Discovery Are Not Absolute
By Michael Roundy – May 31, 2019
It can be too easy at times to forget the boundaries of professionalism.

Another Court Approaches Discovery on Discovery with Skepticism
By Joseph V. Schaeffer – April 17, 2019
Home Depot enhances its credibility with the court and avoids expensive and potentially precedent-setting discovery.

Spoliation Sanctions Are a Discovery Issue, Not a Last-Minute Trial Tactic
By Andrew J. Felser – March 28, 2019
Act, don’t wait, or the court can refuse to consider an untimely spoliation motion.

Proportionality Has Some Bite
By Joseph V. Schaeffer – March 1, 2019
While the bench and bar reckon with exactly what proportionality is, a recent decision shows what it is not.

Request for Inspection of Mobile Devices and Browsing History Denied as Over-Broad
By Andrew J. Felser – February 28, 2019
Henson is an instructive application of the proportionality doctrine.

Claims for Lost Profits Can Lead to Claims for Lost Privilege over Tax Returns
By Joseph V. Schaeffer – February 8, 2019
Does the prospect of recovering lost profits outweigh the potential loss of privacy?

2018

When Preparing Your Client's Case, Trust but Verify Their Representations
By Joseph V. Schaeffer – December 20, 2018
Repeating untruths risks not only your credibility with colleagues and the court, but it also risks sanctions under an array of authorities.

Don’t Sit on Your Right to Enforce Discovery Obligations, or You May Lose the Remedy
By Andrew M. Toft – November 28, 2018
Tyll v. Stanley Black & Decker Life Insurance Program is an example of procrastination resulting in a written opinion no lawyer wants to see.

Delaware Chancery Court Balances Need for Confidential Court Filings Against Public-Access Rights
By Seth R. Tangman – November 27, 2018
The Columbia Pipeline case shows that the court will make public any filing that does not have good cause for confidential treatment.

Adequately Preparing a Corporate Representative for Deposition
By Ilana Drescher – November 27, 2018
Be sure to ask yourself whether the designated areas of inquiry are reasonable both in scope and description.

Failure to Identify Documents in Interrogatory Responses Did Not Create “Trial Ambush”
By Callan R. Jackson – November 27, 2018
If the opposing party has knowledge of the documents in advance of trial, then there may likely be limited harm in failing to identify the documents.

How to Deal with the Destruction of Surveillance Video: Same Defendant, Different Results
By Ashley J. Heilprin – October 30, 2018
In two contrasting but reconcilable recent rulings, Wal-Mart was sanctioned in one case and awarded summary judgment in another.

Discovery-on-Discovery and Proportionality Battles Require Persuasive Evidence
By Andrew M. Toft – October 30, 2018
Don’t just fight the discovery battles, give the judge one or more substantive reasons to deny your opponent the discovery it wants.

The Federal Rules of Civil Procedure Do Not Recognize an Objection for Discovery Your Client Does Not Like
By Joseph V. Schaeffer – October 30, 2018
It's not uncommon for attorneys seeking discovery to dismiss the utility of interrogatories in favor of depositions, but it’s less common for attorneys responding to discovery to take that same tack.

If Counsel Can't Agree Whether They Met and Conferred, the Court Might Assume They Didn't
By Kenneth Duvall – October 24, 2018
A moving party is well advised to memorialize the substance of a meet-and-confer immediately.

Whether Statement Is Protected Speech on “Matter of Public Concern” Held Not a Proper Request for Admission of Fact
By Kenneth Duvall – October 23, 2018
Can a request for admission under Federal Rule of Civil Procedure 36 call for a legal conclusion?

Another Reason to Understand the 2015 Amendments and Committee Notes to Rule 26(b)(1)
By Andrew M. Toft – September 29, 2018
CRST is a lesson to attorneys who argue "my way or the highway" in discovery disputes.

In a Battle over Search Strings, Parties Must Confer About and Brief All of Them
By Andrew M. Toft – September 29, 2018
Don't exasperate the court.

Ortiz v. Amazon: Cell Records under Spouse’s Name Must Still Be Disclosed
By Ashley J. Heilprin – September 28, 2018
A party may not avoid disclosure of relevant cell phone records simply because the cell phone account is in the party’s wife's name, who is a not a party to the suit.

Service of Process in 280 Characters or Less
By Joseph V. Schaeffer – September 26, 2018
How do you effect service of process on an entity that lacks a principal place of business or clear leadership structure?

Narrowing Your Discovery Request in Advance of Court Intervention
By Andrew M. Toft – August 28, 2018
If lawyers do not take the proportionality factors in Rule 26 into consideration, the courts will do it for them.

Satmodo: Evaluating Proportionality in Technology-Related Litigation
By Dorian Simmons – August 28, 2018
The concepts of relevancy and proportionality embodied in traditional rules of discovery will continue to be applied to ESI.

Managing Discovery: Be Proactive or Risk Being Sorry
By Dorian Simmons – August 28, 2018
Parties should take the discovery process in their own hands because they may not like the result if they let the courts.

Dismissal for Lack of Subject-Matter Jurisdiction No Bar to Motion for Discovery Sanctions Filed Before Dismissal
By Whitney M. Antoine – July 31, 2018
The most important lesson is to get the motion for fees filed prior to any dismissal of the claim.

Party Lacks Standing to Compel Responses to Discovery Propounded by Another Party
By Andrew M. Toft – July 31, 2018
The lesson of this case is simple.

Applying Relevance and Proportionality to Solve Discovery's "Goldilocks Problem"
By Andrew M. Toft – July 2, 2018
A recent decision from the Southern District of New York in securities litigation against BNY Mellon gives guidance on this recurring issue.

Court Stays Discovery Pending Outcome of MDL Transfer Motion
By Nolan T. Herslebs – June 28, 2018
The U.S. District Court of New Mexico balances the discovery interests of both plaintiff and defendant.

Who's Paying the Plaintiff's Bills? You Might Not Be Entitled to Discover the Answer
By Joseph V. Schaeffer – June 28, 2018
Discovery of litigation finance depends first and foremost on its relevance to the parties' claims and defenses.

Court Loses Patience with Party Blocking Discovery of Tax Returns, Imposes Sanctions
By Dillon Hobbs – May 31, 2018
Unreasonable conduct in one discovery dispute can have a spill-over effect in the next one.

Case-Terminating Sanctions for Spoliation Denied as Premature
By Darrinisha Gray and Ashley J. Heilprin – May 25, 2018
MASS v. Hughes provides at least two lessons.

When Is an Expert "Independent" for Purposes of a Protective Order?
By Joseph V. Schaeffer – May 25, 2018
All attorneys should be reminded of the costs and risks that accompany the retention of an allegedly "partisan" expert.

The Apex Deposition: Practice Tips and Standards
By Joseph V. Schaeffer – April 29, 2018
Litigants should establish a special need before seeking the deposition of a high-level corporate employee.

“Truly Outrageous” Discovery Violations Prejudicing Plaintiff’s Case Earn Recommendation of Dispositive Sanctions
By Andrew M. Toft – April 29, 2018
A study in extremes.

The Lure of the Siren Cry: Fishing Expedition!
By Andrew J. Felser – April 26, 2018
Consider your discovery objectives when drafting your client’s allegations and claims.

Pay Attention to Court/Judge-Specific Rules for Discovery Motions or Risk Losing on a Technicality
By Tracy A. DiFillippo – April 26, 2018
Make sure you review all court rules of procedure or practice, including chamber-specific rules.

Pre-Motions Practice: The Meaning of Meaningful Conferral
By Andrew J. Felser – April 1, 2018
Two recent decisions help give dimension to the conferral process and show that even in-person conferrals can fall short of what the rules require.

Non-Prejudicial Delay in Producing Privilege Log Not a Waiver of Applicable Privileges
By Robert J. Will – March 30, 2018
Acting in good faith and with a reasonable degree of diligence in seeking to comply with your discovery obligations under the Federal Rules of Civil Procedure is crucial to avoiding potential sanctions or other unfavorable results.

Spoliation: Dismissal Might Not End Duty to Preserve Evidence
By Joseph V. Schaeffer – March 30, 2018
Defendants and their counsel are cautioned against immediately withdrawing a litigation hold after settlement or trial.

Rule 37 Sanctions Will Be Denied if No Prejudice Resulted from Destruction of ESI
By Nolan T. Herslebs – February 28, 2018
An automatic ESI-destruction policy is not best practice.

Spoliation on a "Staggering Scale" Leads to Sanction of Default Judgment
By Andrew M. Toft – February 28, 2018
A recent case shows the harm clients can do to themselves if not clearly instructed about their discovery obligations or if they choose to ignore their lawyer's advice.

Nonparty ESI Must Sometimes Be Preserved or Risk Rule 37(E) Sanctions
By Andrew M. Toft – February 28, 2018
The music may have died, but not the ESI issues.

The Nonresponsive Document Dilemma: What Happens If Your Opponent Can’t Trust You
By Andrew J. Felser – February 28, 2018
Will your judgment about what’s not relevant be trusted blindly by your opponent? Why should it be?

How to Waive Attorney-Client Privilege Unintentionally: A Tragedy in Two Acts
By Andrew J. Felser – January 31, 2018
A recent Ohio court opinion offers lessons for all practitioners.

Expert Disclosures Must Include Facts or Data "Considered," Even if Not "Relied On"
By Andrew M. Toft – January 31, 2018
Federal Rule 26(a)(2) is a trap for the unwary.

Six-Figure Document Production Cost Is Proportionate Where the Producing Party Claims Tens of Millions in Damages
By Andrew M. Toft – January 31, 2018
A recent district court case from the District of Columbia illustrates the point.

Unilateral Redactions of Responsive Documents on Relevance Grounds Not Supported by Federal Rules of Civil Procedure
By Mollie Beth Wallace – January 31, 2018
Parties would be "improperly incentivized to hide as much as they dare."

2017

Meet Court-Ordered Deadlines or Request Additional Time Before the Deadlines Expire to Avoid Sanctions
By Andrew M. Toft – December 28, 2017
Bird v. Wells Fargo Bank describes conduct that resulted in sanctions under Rule 37(b)(2)(C).

Acting with Intent to Deprive Opposing Party of Relevant Evidence Required for Adverse-Inference Instruction
By Andrew M. Toft – December 28, 2017
In Mueller v. Swift, the court determined that “unjustifiably careless” conduct did not warrant an adverse-inference instruction but did warrant lesser sanctions.

Production of Hard Copy Documents Found Sufficient to Avoid Production in Native Format
By Robert J. Will – December 28, 2017
The District of New Mexico did not require “double production,” but did restrict discovery of a decision makers’ personnel files.

Expansive Document Request That Overlapped Mandatory Disclosure Requirements Found to Be Overly Broad
By Robert J. Will – December 28, 2017
The days of boilerplate, all-encompassing requests for documents or ESI as well as boilerplate objections are over.

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Asking for Limits on Discoverable ESI Can Yield Favorable Results
By Robert J. Will – October 31, 2017
Your ESI dispute may merit asking the court to intervene, especially where the data is over-inclusive in its existing state.

The Producing Party Controls the Method It Uses in Producing Its ESI
By Tracy DiFillippo – October 31, 2017
Will a court force a party to produce the ESI using a specific format? The Southern District of New York said no.

Proportionality Depends on Needs of Case, Not Just Time and Money
By Andrew J. Felser – July 31, 2017
Even if the evidence you seek is easily and inexpensively retrieved, it might still be disproportionate to the needs of the case.

Employment Decision Shows Value of Discovering Social Media Posts
By Ronald Hedges – September 26, 2017
Can a social media post make or break a case?

Steps to Consider Before Seeking Sanctions for Failure to Preserve and Produce ESI
By Eric B. Levasseur and Jeanniece Jackson – June 30, 2017
Obtaining an award of sanctions is no easy task.

When Asked to Produce ESI in a Particular Format, Comply or Object, but Don’t Ignore the Request
By Andrew Felser – June 30, 2017
A decision from the Eastern District of California reminds us that this clear mandate is not to be ignored.

Your U.S. District Court's Local Civil Rules Can Give Insight into How It Implements Federal Rules
By Angela S. Fetcher and Briana Lathon – June 30, 2017
It pays to know your court’s local rules.

Investigative Subpoenas Untethered to Court or Grand Subpoenas Result in Sanctions
By Ronald Hedges – May 31, 2017
Attorneys across the nation can learn from New Mexico's Chavez.

Personal Use of Employer Email System Waives Attorney-Client Privilege but Not Work-Product Protection
By Ronald Hedges – May 31, 2017
Peerenboom v. Marvel offers several lessons.

How to Make Good Objections to Written Discovery
By Andrew Felser – May 31, 2017
Throw away the boilerplate.

Tips on Protecting Confidential Information in E-Discovery
By Ronald Hedges – May 31, 2017
Maintaining the confidentiality of electronically stored information (ESI) in discovery continues to be a hot-button issue.

Think Twice: Requesting the Appropriate Format for ESI
By Eric B. Levasseur – April 27, 2017
Avoid buyer’s remorse.

Do U.S. Courts Have Jurisdiction to Issue Warrants Against U.S. Companies for Data Stored Abroad?
By Michael L. Huggins – April 27, 2017
Courts have recently split on the issue.

Motions for Rule 11 Sanctions Should Conserve Rather Than Misuse Judicial Resources
By Ronald Hedges – April 27, 2017
When might sanctions be awarded under Fed. R. Civ. P. 11? A recent Third Circuit case provides an example of when such a motion should not be made.

SCOTUS Overturns Attorney-Fee Sanction for Discovery Fraud
By Robert J. Will – April 25, 2017
Litigants should pay careful attention to document (or refute) the relationship between the amount sought and the alleged wrongful conduct.

Limitations on Discovery of Social Media
By Ronald Hedges – March 30, 2017
Social media content may be relevant to civil litigation and hence discoverable. What limitations might a court impose on such discovery?

Seventh Circuit Affirms Dismissal as Sanction for Witness Tampering and Highlights Counsel’s Duty of Candor
By Michael L. Huggins – March 30, 2017
The court reaffirmed that “witness tampering is among the most grave abuses of the judicial process, and as such it warrants a substantial sanction.”

Statistical Sampling May Meet the Proportionality Requirement under FRCP 26
By Jason M. Wiley – March 30, 2017
A magistrate judge’s recent decision struck a balance between parties’ right to discoverable information on one hand, and limiting costs and labor on the other.

Your Spoliation Motion Must First and Foremost Show "Prejudice"
By Andrew Felser – March 30, 2017
Courts will not be sympathetic merely because evidence has been destroyed.

How to Authenticate Authorship of Text Messages, Emails, or Similar Communications
By Kenneth J. Duvall – February 28, 2017
A recent state appellate court case shed some light on the intersection between one of the oldest conditions for admissibility of evidence and one of the newer types of evidence.

Tips on Meet-and-Confer Conferences
By Steven D. Ginsburg – February 28, 2017
Avoiding discovery disputes and litigation as a result of errors of misunderstanding and miscommunication should be a goal of all counsel.

A Road Map to Seeking an Order for a Forensic Search of an Opposing Party’s Computer
By Eric B. Levasseur – February 28, 2017
The U.S. District Court for the District of Maine recently resolved an interesting question at the fore of ESI disputes.

A Practical Look at Preserving ESI
By Steven D. Ginsburg – January 31, 2017
Recent court decisions highlight that courts will take steps when a party’s loss of relevant ESI prejudices the other party.

Document Production: Burying Responsive Documents Earns $10,000 Sanction
By Andrew J. Felser – January 31, 2017
A reminder to litigation attorneys that courts do not look favorably on parties that dump documents.

The Power of the Subpoena Should Not Be Ignored
By Ronald Hedges – January 2, 2017
The defense in a recent criminal case found out that this was the best avenue to obtain electronic information from a victim.

Letting the Jury Decide about the Consequences of Loss of ESI
By Ronald Hedges – January 2, 2017
McQueen and Cahill demonstrate the scope of judicial discretion in allowing parties to present evidence and argue about the loss of ESI.

2016

No Spoliation Sanctions Other Than Monetary Sanctions for Unintentional Loss of Relevant Evidence
By Andrew J. Felser – December 29, 2016
Overreaching in the face of thin proof does not yield good results.

What Happens When Parties Cannot Agree on Search Terms for ESI Production?
By Angela S. Fetcher – December 28, 2016
Cooperation is best for both parties.

Litigators Must Learn to Balance Relevance with Proportionality in Discovery
By Ronald Hedges – November 30, 2016
The chair of the Advisory Committee on the Federal Rules of Civil Procedure holds that all parties, as well as the court, have a collective responsibility to consider proportionality.

Parties Must Meet and Confer Regarding ESI Search Terms
By Kenneth J. Duvall – November 30, 2016
The Western District of Pennsylvania recently added some clarity to the matter.

Litigators May Need to Adjust Their Discovery Tactics in Federal Circuit
By Jordan B. Redmon – November 30, 2016
Federal litigators of all stripes should heed the Federal Circuit’s disdain for punitive sanctions.

Preserve Relevant Text Messages on Secure Media
By Andrew J. Felser – November 30, 2016
Litigants and counsel be warned: The loss or destruction of relevant cell phone texts, intentional or not, can lead to sanctions under Fed. R. Civ. P. 37(e).

Important Tips for Obtaining Sanctions for Spoliation of Evidence
By Ronald Hedges – October 31, 2016
Two recent cases shine light on the matter.

Failure to Seek Stay Order for Release of Confidential Information Can Kill Your Case
By Ronald Hedges – October 31, 2016
Constand v. Cosby highlights the importance of seeking and securing a stay of any order for the release of “confidential” information pending appellate review.

Potential Damages Award Largely Immaterial in Determining Whether to Limit ESI Production
By Jason M. Wiley – September 30, 2016
Courts have been unpersuaded by argument comparing the actual amount in controversy versus the expense in producing ESI in an attempt to convey unreasonableness.

Need for ESI Discovery Trumps Objections, Especially Where Claims and Defenses Overlap
By Kenneth J. Duvall – September 28, 2016
In the ongoing battle between plaintiffs seeking ESI discovery and defendants resisting these attempts, the plaintiffs have tallied an interesting win.

Indiana Court Compels Production of Spreadsheets in Native Format
By Angela S. Fetcher – September 28, 2016
The court looked to Federal Rule of Procedure 34(b)(2)(E)(i) and (iii) regarding the production of electronically stored information.

"Seemingly Conflicting Responses" Lead to "Discovery on Discovery"
By Ronald Hedges – August 31, 2016
McKinstry reminds attorneys that a party seeking to seal has a heavy burden.

Don't File Documents under Seal Unless "Justified"
By Ronald Hedges – August 31, 2016
Expect federal courts to actively manage a discovery dispute and limit discovery requests consistent with proportionality.

Seeking Damages Against a Public Official: The Significant Hurdle of Qualified Immunity
By Ronald Hedges – August 31, 2016
Attorneys should recognize this heavy burden in civil actions seeking damages against police officers to protect against meritless claims and avoid unnecessary motion practice.