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What is the “Daubert” standard supposed to test? Daubert v Merrill Dow Pharmaceuticals, 509 US 579 (1993). Daubert and the Federal Rule of Evidence 702 are intended to allow the court to act as a gatekeeper in keeping “junk science” away from jurors. The theory, I suppose, is that jurors […]

Trying to make the best of rules open to highly subjective interpretation… Discovery in litigation is the heart of the process. It is the system by which parties can obtain evidence from other parties and refine knowledge about the proof available for their causes of action and defenses. If done […]

In Hamlet, his mother the queen is quoted as saying, “The lady doth protest too much, me thinks.” In Shakespeare’s time the word “protest” was meant as the lady vows or declares solemnly, too much. So do the devotees of predictive coding, protest too much. A recent article in favor […]

If you ask an opposing party about the details of their document collection; the custodians interviewed; the keywords searched; or the culling approaches used; you are likely to get one response, a quickly erected brick wall. In Cooperation and Litigation: Thoughts on the American Experience (2013), Richard Marcus writes: “I […]

A cadre of corporations whose profit margins outweigh product safety have found a loophole in the litigation process: sealed settlement agreements. Such agreements are legal, as there is no law prohibiting them, and often left up to the discretion of the courts. Consumer advocates have a problem with that. The […]

Florida is sunny and a great place to live or work; but we can be a little slow to except new things. Florida Rules of Civil Procedure were amended a couple of years ago to include at least the mention of electronic discovery. Sadly, the changes did not treat ESI […]

In JDSupra Business Advisor, Attorney Robert Rogers writes a summary of a recent Florida case, Nucci v. Target Corp., 40 Fla. L. Weekly D166a (Fla. 4th DCA Jan. 7, 2015). Mr. Rogers sets forth, “A Florida appellate court has ordered a plaintiff to produce photographs from her “private” Facebook page […]

The discovery of electronically stored information (ESI) is loaded with potential pitfalls and failure unless the parties add two components to the mix: cooperation and collaboration. Lacking those components, ESI discovery, at least sometimes, can be one of the more painful experiences for the average trial lawyer. The problem to […]

Today, the discovery of information in most litigation involves large amounts of digital documents and data. Corporate counsel goes through a painful hand wringing ritual every time they think about data preservation versus spoliation versus data destruction. You can hear the pain flow down from the corporate inner wards every […]

The short answer is, it depends. Like it or not, we live in an age of “1’s and 0’s” and this digitization has made the creation of documents easier and the storage of those same documents easier and cheaper. I remember during the paper days trying to find space to […]