The Discovery Update – November 2010


The Discovery Update – November 2010

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November 2010

From the President

This month’s issue includes three very informative articles on depositions. One focuses on the use of technology in a deposition, and the two other articles can help guide your clients through preparing for their first deposition, to help them succeed.

The Discovery Update has been published electronically now for over three years, and we want to provide you only with information that you find valuable.

Please email us and let us know what areas of discovery you would like to read about, or send us your articles that we can share with our readers.

We strive to provide you with more than superior court reporting services: Our goal is to be an invaluable resource for your practice, as well.

Best regards,
Sheila Atkinson-Baker

Beware of the ESI-Discovery-Tail Wagging the Poor Old Merits-of-the-Dispute Dog

By Ralph Losey

There is a new opinion by Senior U.S. District JudgeSandra S. Beckwith of importance to all of us concerned with proportionality in e-discovery. Moody v. Turner Corp., Case No. 1:07-cv-692 (S.D. OH, Sept. 21, 2010). Judge Beckwith is an early signatory of The Sedona Conference® Cooperation Proclamation. She also uses one of my favorite sayings about the e-discovery-tail wagging the  merits-of-the-dispute dog in this opinion. But you will have to read to the end for her full context quote. Thanks to Matthew R. Byrne, my Jackson Lewis e-discovery liaison in Cincinnati, for bringing this case to my attention.

This opinion arises out of ERISA, an old legal specialty of mine before I went full-time e-discovery-only in 2006. It is a dispute over the plan administrator’s calculation of pre-retirement lump sum pension benefits. (Yawn.) The plaintiffs’ attorneys apparently tried to stay awake by engaging in old-fashioned, non-cooperative, hardball discovery, which Judge Beckwith summarized as a “lengthy and contentious discovery process.” Seemed like they picked the wrong judge for that sort of litigation tactic, but maybe they have never even heard of Sedona or the Cooperation Proclamation.

Plaintiffs’ Production Request

The plaintiffs made many, many discovery requests in what should be a factually simple, albeit legally complex, dispute. In two of their requests for production they included categories concerning ESI and even specified keywords. Here is how Judge Beckwith describes them:

“Plaintiffs’ request for production No. 1 and No. 2 sought production of emails concerning the plan that contained words or phrases identified in nine separate sub-requests; the Court’s rough count of the requested search terms is at least 160 different terms.”
Read full article >>

Preparing for Your First Deposition

“It” happened. You have been named as Defendant in a civil rights lawsuit in either state or federal court resulting from a force response incident. You were served with the lawsuit some time ago. You have met with your civil attorney (who may or may not work for your jurisdiction’s Attorney’s Office).  You likely have already been required to respond to Interrogatories (written questions answered under oath), and have now been notified that your deposition will be taken at a date not too far in the future.  You may have been subpoenaed.  Like most officers, you figure, “No big deal…I testify in criminal and traffic court all the time.”

This attitude and belief will likely cost you and your agency dearly in your upcoming trial. While officers have been taught that a “trial” is the pinnacle of the officer’s efforts as a witness in a criminal proceeding, the same is not true in a civil trial.  Your case, and the possible adverse award by the jury against you and your agency, will rise or fall on both your trial performance and deposition.
Read full article >>

Beware of the ESI-Discovery-Tail Wagging the Poor Old Merits-of-the-Dispute Dog

Preparing for Your First Deposition

The Slippery Issue of Relevance in Document Review

Should Lawyers Play Nice in E-Discovery?


Deposition Preparation and Technology »

How to Reduce Ediscovery Costs in a Down Economy »


The Slippery Issue of Relevance in Document Review
Read article »
Should Lawyers Play Nice in E-Discovery?
Read Article »
Practice Tip: Assume Your Deposition Witness is Lying
For your Clients: How to Do Well at a Deposition 


Courtroom exchange recorded by a Texas Judge:

Feeling Good

Q. Did you really tell that police officer that, after the accident, you never felt better in your life?

A. Yep, that’s what I said.

Q. I want you to explain that, please.

A. Well, you see, I was knocked unconscious in the accident, and when I came to, I saw this officer examining my horse, and then he took out his gun and shot him in the head. Then he examined my dog and shot him in the head. Then he came to me and asked, “How do you feel?”