Federal Rules of Civil Procedure

Changes to Federal Rules of Civil Procedure 16(b) and 26(f) are projected to come into effect in December 2025 that have been promulgated to address what proponents refer to as the “‘privilege log’ problem.” December 2025 is still relatively far in the future and whether the proposed amendments to Rules 16(b) and 26(f) are actually adopted is still subject to additional approvals, including approval by the Supreme Court. Nevertheless, bear in mind that nothing in the current Federal Rules of Civil Procedure prevents the parties from implementing the more proactive approach the proposed amendments seek to achieve. 

There are few things more dreaded in discovery than the time-consuming, tedious, onerous, beastly privilege log – especially in complex litigation matters involving thousands of pages of documents. These logs, however, are a critical component of the E-Discovery process that requires careful attention to detail in planning, analysis, and preparation. In this blog post, we will explain what a privilege log is, discuss the various types of privilege logs, recommend pre-privilege review strategies, and address post-submission concerns.

Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023).  The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34. 

“We are family.” If you are like many people, you can’t read those words without singing them. Unlike the joyous refrains of Sister Sledge, however, the idea of family may take on a more ominous tone when viewed in the context of familial corporate relationships and the obligation to preserve and/or produce electronically-stored documents or information in litigation. In today’s digital world, related corporate entities may share email servers or electronic databases or jointly engage agents to process or store their electronic data. The use of shared administrative or other departments may further cause the commingling of access to various corporate electronic data repositories. As technical advancements increase and further ease the flow of data between related companies, the question arises what discovery obligations a company may have to preserve or produce its affiliate’s electronic data in litigation to which the related entity is not a party.

The preservation of, or failure to preserve, ESI in a litigation context provides ample opportunities for counsel to stumble and is a fertile area of case law. In this blog we will look at Hollis v. CEVA Logistics U.S., Inc., No. 19 CV 50135, (N.D. Ill. May 19, 2022), an interesting little case in which the Court found that a curative jury instruction was warranted in a matter where the defendant CEVA failed to preserve video evidence of an altercation between the plaintiff Hollis and another employee which resulted in Hollis’s termination. This case is instructive in that it discusses in some detail the  “five threshold requirements” (Hollis, at 2) to impose remedies for failure to preserve ESI under Fed.R.Civ.P. 37(e) as well as the issues of intent to deprive plaintiff of the evidence and of prejudice to the plaintiff. The case is particularly interesting, however, in that it illustrates the potential difficulties in recognizing when a duty to preserve arises, particularly with respect to short-lived, ephemeral evidence that is destroyed or overwritten well before formal litigation commences.

While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages, and collections from mobile devices are oftentimes overlooked. A narrowly tailored motion to compel forensic exam can be a valuable discovery tool to analyze the data on a party’s mobile phone. This blog analyzes the factors that led a court in the Northern District of Illinois to order the forensic imaging and collection of a party's mobile phone.