7 Responses to The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses

  1. Ralph Artigliere says:

    I am fresh back from teaching at the first ever Sedona Cooperation Program in Phoenix, and I find your entry timely and supportive of what we taught and experienced this week. A lot of folks do understand the advantages of and need for cooperation, but there are too many lawyers and clients that do not. Finding the “right answer” as you term it in a changing world where not everyone is playing by the rules is tough. But fortunately we have a compass: honesty, good faith, professionalism, and following the rules of procedure, including Rule 1. There is a path. Those who successfully follow it must guide others so they have the confidence to take the journey.

  2. Craig Ball says:

    The Court was correct–and should be lauded–for taking Plaintiffs’ counsel to task for the delay tactics observed. I’m happy to see that the age-old approach of replying to discovery with the executory promise to make production in the future has been called out as the stalling maneuver it has always been. Producing parties, beware! The old tactics aren’t working anymore.

    My problem with this opinion grows out of the loose language employed to address issues of form of production. The Court wrote, “…[D]efendants have demonstrated that without Bates stamping and .tiff format, the data was not reasonably usable and therefore was insufficient under Rule 34.”

    The judge seems to suggest that ESI productions are insufficient unless made using Bates-stamped TIFFS. I can’t imagine a more regressive articulation. There are few forms of production less usable than TIFFs, whether embossed with Bates numbers or not. Comparing TIFFs to PDFs and concluding the former is the superior form of production is like comparing a latrine dug out of sand to one dug from soil. They both stink compared to plumbing.

    Her Honor’s position may make a modicum of sense on these bad facts, where Pleistocene parties were hell-bent on using stone axes. yet, her formulation is hardly a praiseworthy blueprint for efficient or cost-effective practice in the 21st century!

  3. […] The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses […]

  4. […] Despite the fact that Federal Rule of Civil Procedure 26(g) went into effect in 1983, the first judicial opinion enforcing this provision was issued just last month. In Branhaven LLC v. Beeftek, Inc., __ F.R.D. __, 2013 WL 388429 (D. Md. Jan. 4, 2013), Magistrate Judge Susan Gauvey of the District of Maryland sanctioned both Plaintiff corporation and Plaintiff’s attorneys under Rule 26(g), ordering them to pay the fees and costs incurred by defense counsel as a result of Plaintiff’s “large, disorganized and last minute document production.” Magistrate Judge Paul Grimm first called attention to this unused rule in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), a landmark opinion known for its in-depth discussion of the need for cooperation in discovery. As Judge Grimm notes in Mancia, “[t]he failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive—to the point of pricing litigants out of court.” Ralph Losey discusses both opinions, the importance of the duties of counsel under Rule 26, and cooperation as the key to a successful e-discovery practice in his blog post, “The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses.” […]

  5. […] Losey, R., 2013. The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses. E-Discovery Team Blog, 24th February 2013, Available online at: http://e-discoveryteam.com/2013/02/24/the-increasing-importance-of-rule-26g-to-control-e-discovery-a… […]

  6. […] (sanctions entered under Rule 26(g) for discovery abuses, including a document dump); Losey, R. The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses; Denny & Cochran, The ESI Document Dump in White Collar Cases; In re Fontainebleau Las Vegas, […]

  7. […] (Rule 26(g) enforced and counsel sanctioned for reckless disregard of their discovery duties.) The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses (e-Discovery Team, […]

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