Category Archives: E-Discovery


Six years ago, I wrote about how facility with electronic discovery allows small litigation firms to have David v. Goliath results against large firms.  In 2021, if you or your team have not mastered discovery of electronically stored information (“ESI”), you are not in the game.

Here are some tips for bringing your electronic discovery skills up to date.

  1. Consult with your technologist on production demands.  Parties may specify the way they want ESI produced.  Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C).  Share your draft production requests with your technologist, or better yet, have a stock paragraph in your form file. 
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Most business cases settle prior to trial.  For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions.  This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath.  Previously these were held in a law firm conference room; often now they occur as a videoconference.  No judge or jury is present

I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused.  Too many depositions are taken.  Too many questions are asked.  Too many documents introduced.

There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media.  read more

Legal Troubles Overhang Presidential Election

This presidential election cycle is groundbreaking in so many different respects.  The one respect that intersects my world is the degree to which each presumptive nominee’s campaign is dogged by ongoing legal battles.

Hillary Clinton has been beset for months by criticism over her exclusive use of a personal email server to conduct State Department business, when according to State Department policy she should have used a government email address and government server.  The problem was not merely technical, because when she left the State Department she did not turn over her emails to the government.  Thus, when the emails were sought by subpoena in connection with the Benghazi affair, the process of reviewing and turning over responsive emails was in the hands of Clinton staff rather than the government.  read more

Clinton Emailgate: Full Disclosure Beats Suppression of Information

The controversy over the emails Hillary Clinton maintained on a personal server while Secretary of State recently obtained new legs with disclosure that fifteen emails produced by Sidney Blumenthal, a former Clinton aide, emails which included Clinton, were not produced by her.  (See “State Department Says Hillary Clinton’s Email Disclosure Was Incomplete.”)

The controversy started when documents produced in connection with ongoing investigations concerning the attacks on the American embassy in Benghazi, Libya, reflected an absence of emails from any state department account for Hillary Clinton, but instead emails to and from her personal email account. After discussions between the State Department and Mrs. read more

Advances in E-Discovery Allow Smaller Firms to Successfully Litigate Cases Once Only Handled by Their Larger Counterparts

In almost any lawsuit, after the initial pleadings are filed, and before the trial, the parties engage in an extended period known as “discovery,” where each side demands and receives information about the other side and its case. In business cases parties typically ask for all of the contracts, communications and financial information that pertain to the issues in dispute. Businesses are generally quite reluctant to share internal business information with any third party, especially a litigation opponent. However, the law favors broad pretrial disclosure of information that has any potential relevance, and thus the volume of information exchanged in the discovery process could be great. read more