Tagged: Rule 26 Conference

“Is That All There Is?” The Western District of Kentucky Gives a Fresh Look to the Standard Supporting ESI Search Sufficiency Challenges

A long-established precept of ESI production challenges is, if you’re complaining that they “must have more than that,” you’d best be able to support that position if your goal is to force your adversary to redo its search. Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., et al., No. 3:19-CV-00014-GNS-LLK (W.D. Ky. Apr. 20, 2021) brings this point home in full force. In that decision, which involved a Lanham Act trade dress dispute, United States Magistrate Judge Lanny King addressed plaintiff Maker’s Mark’s complaint that defendant Spalding’s ESI production was so paltry and otherwise deficient that Spalding should be compelled to implement a new ESI search. Ultimately, the court was having none of it. This decision is a reminder of the importance of communication between counsel before and after the Rule 26 conference, as well as the need to establish a compelling factual record of discovery deficiencies before seeking judicial relief.

Reeling in Fishing Expeditions: Proposed Amendments to the Federal Rules Are Aimed at Narrowing the Scope of Discovery and Increasing Judicial Management

Litigants frustrated by endless discovery and skyrocketing costs may find solace in knowing that change may be on the way. Proposed amendments to the Federal Rules of Civil Procedure, as well as recent case law, signal efforts to narrow the scope of permissible discovery and increase judicial management of issues that arise. The proposed amendments — guided by the overarching goal of the just, speedy, and inexpensive determination of every action embodied in Federal Rule of Civil Procedure 1– are aimed at reeling in so-called “fishing expeditions” in which litigants attempt to use discovery to uncover additional causes of action not previously known, or, more nefariously, foist undue cost and burden on their adversary in the hopes of gaining a strategic advantage.