Discovery

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The small Arizona town of Sedona is one of the centers of the e-discovery universe, and the Sedona Conference’s Best Practices for dealing with electronic discovery issues have been favorably referenced by many Courts, including the North Carolina Business Court (see here and here).

Now, the Conference has put out a Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible.  Why should you care about that?

The answer is that the term "reasonably accessible" is contained in Rule 34 of the Federal Rules of Civil Procedure, governing document production, which says that "a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."  (North Carolina Rule 34, last amended twenty-one years ago with a quill pen, contains no such language).

The new Commentary contains detailed guidelines for determining how to make the determination of accessibility, and when electronic information should be preserved.  The Guidelines themselves are below, from the Electronic Discovery Law blog (which is a great resource for court decisions on e-discovery matters) but the Commentary itself contains many useful examples and case citations and is worth reading.   Continue Reading Electronically Stored Information: New Sedona Principles On Preservation Of ESI

The Business Court denied the Plaintiff’s Motion for Expedited Discovery, without discussion, in its Order in this covenant not to compete case.  From looking at Defendant’s brief in opposition, what probably doomed the motion was that the one year non-compete period had nearly expired when Plaintiff requested expedited discovery.  The same Order was entered on…

The Court granted a Motion for Protective Order preventing Defendant from determining the identity of a confidential informant to the Department of Environment and Natural Resources.  The Court found that the identity of the confidential informant was "of no consequence to the issues in this case."  The Court further found that there was good cause…

This opinion dealt with subpoenas to a party’s attorney and its accounting firm.  The Court quashed the subpoena to the law firm (Gray Layton), holding:

Service of a subpoena duces tecum on a law firm seeking documents from the firm’s client files clearly raises worrisome issues of attorney-client and work product privilege. The attorney-client privilege

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Plaintiff was entitled to discovery of documents relating to an arbitration proceeding involving similar claims, even though the legal issues were not identical, and also notwithstanding a confidentiality agreement entered by the arbitrator in the arbitration case. 

The Court made this comment on the standard of relevancy for discovery purposes:

A fundamental requirement of Rule

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An Order granting discovery sanctions in the Western District of North Carolina is the basis for a $107 million malpractice lawsuit against a New York law firm.

The discovery Order was entered two years ago in a multidistrict proceeding formerly pending in Charlotte.  The case, just recently settled, involved the alleged price fixing of polyester staple fiber. …