What Are Interrogatories, Requests to Produce, and Admissions?

What Are Interrogatories, Requests to Produce, and Admissions?

In civil lawsuits, the parties obtain and exchange information in a process called “discovery”.  This is very different from criminal cases where the police investigate and the prosecutor brings a case based on that evidence and has to disclose it to the defense.  In civil cases, the proponent of an allegation has the obligation to devleop the evidence to prove that allegation and obtains it through the process of discovery.

Discovery in civil disputes takes on two basic forms; what lawyers call “paper discovery”, and the “other stuff”.  Paper discovery actually isn’t paper anymore, but it is the series of requests provided for by our Florida procedural rules that includes interrogatories, requests to produce, and requests for admissions.  The “other stuff” is discovery aside from these requests, such as depositions and inspections of property or equipment.

Interrogatories

Interrogatories are only exchanged between the actual parties in a lawsuit, i.e. plaintiff and defendant.  They essentially are just written questions to the other.  They are limited in number, but Judges usually allow more if there is good reason.  A party’s lawyer will normally draft the answers with the party and they are sworn to under oath.

Requests to Produce

Requests to produce ask for documents or categories of documents, including electronic documents and data.  In addition to being directed at the other party in a suit, in a slightly different form, they can also be used to non-parties so they don’t have to appear at a deposition just to deliver documents.  Unlike interrogatories, these are not limited, but your lawyer will first assess whether there are objections to the requests and what should be produced.  Because these are regularly used in lawsuits, this is why parties can not now just delete data or throw away computers or devices when they are served with a lawsuit or litigation hold notice.

Requests for Admissions

Requests for admissions, like interrogatories, only go between the parties.  They ask a party to admit or deny some specific fact so it doesn’t have to be proven later.  Again, these are to be answered with your attorney as they have far-reaching implications in a case.  Admitting a fact admits it for all purposes, but wrongfully denying a fact carries consequences as well.  Therefore, the best person to assess these requests with you is obviously your attorney.

Timing of Discovery

Sometimes these discovery requests will come with the lawsuit.  In such scenario, you want to be sure to provide those to your attorney and let him or her know that you received those with the suit.  For certain requests, admissions for example, failure to timely respond can actually admit the requests so you don’t want to leave your attorney in the dark and think those requests don’t matter.

There is no right or wrong time to employ these discovery requests either.  Sometimes they are done at the beginning of the suit, sometimes toward the end, sometimes they are used several times in different phases of discovery and sometimes they are even coupled with other discovery mechanisms like depositions.

The Takeaway

The takeaway is that parties in a civil lawsuit use discovery to gather evidence to prove their case and the Florida Rules of Civil Procedure dictate what discovery mechanisms are available.  Therefore, someone who intimately knows those Rules should be in your corner drafting and responding to discovery requests.  Going it along is not a good idea and you know what they say about those who represent themselves. . .

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.thepalmbeachbusinesslawyer.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments and also teaches Judges, lawyers, and paralegals how to perform e-discovery.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at thepalmbeachbusinesslawyer.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905

What To Do If You Get A Litigation Hold Notice?

Run !  Kidding.  First thing you should do is contact counsel.  A litigation hold notice is something new in Florida.  It basically says, hey, I might sue you so don’t press that delete button on your computer.  The notice can’t say keep everything indefinitely; it has to be useful and as specific as is reasonably possible.  The purpose is to put people and businesses on notice that data, which is very easy to delete or destroy, might be needed in a dispute.  The downside to ignoring such notice can be very severe.

Litigation holds developed in the past decade or so in Federal practice as more businesses transitioned to electronic data from paper.  Because electronic data is capable of destruction or deletion, the legal industry developed a response that fairly placed parties on notice to keep certain data.  That, of course, doesn’t prevent the recipient of the notice from asking the provider to pay for the storage or to even be more specific in terms of what is to be kept.

By their nature, lawsuits are adversarial processes, but in the world of electronic discovery or “e-discovery” as it has come to be known, professional cooperation among lawyers is mandatory.  Thus, responding to a notice and implimenting and managing a litigation hold is best left to qualified and experienced counsel who can navigate your business through the hazards on the road of e-discovery.

But, what happens if you disregard a litigation hold notice or don’t properly impliment a hold?  The other side screams spoliation as it is called and the Judge has to hold a hearing or even series of hearings to evaluate whether spoliation actually occurred, the impact of it, and an appropriate sanction as a response.  Sanctions for intentional spoliation are naturally more severe that those for inadvertent destruction.  Sanctions are not limited and can range from adverse instructions to a jury telling them at the beginning of the case what one party did, to monetary punishment, to making the wrongdoer pay for recovery of the data, to restricting the wrongdoer’s ability to argue and put on evidence, to defaulting the offending party in certain circumstances.  Basically, failure to act on a litigation hold can result in lots of costs and fees and some form of punishment that can all be avoided by speaking to counsel early in the process to assess the notice and define responsive actions.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery in CLE courses.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com     Tel: (561) 316-7905.

What Are Your Document and Data Preservation Obligations?

Our world is becoming increasingly digital.  Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.

The simple answer of keep everything may not be practical or efficient.  Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.

Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules.  Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier.  So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure.  You can still delete data if you are involved in a suit, just not data relevant to that dispute.  If you do, bad things can happen called sanctions for spoliation of evidence.

So then, what’s the easy solution? Have a data management plan and preservation policy and follow it.  If you do, you are in the safe harbor of the Florida Rules.  What do you put in that Plan?  That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.

Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit.  More simply, it’s getting your e-mails and stuff in a lawsuit.  It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century.  It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data.  But, someone still has to look through a certain amount of that data and that’s what increases your costs.

In e-discovery as it is called, there are two large costs; the software and the lawyers who use it.  The software cost depends on the vendor and there are about a thousand of them.  Some charge for upload of data and for use.  So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer.  The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data.  So, the less data there is, the less time it takes, and the less it costs.  Getting the picture?

So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit.  In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first.  The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later.  For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery for Everything e-Discovery, LLC eveythinge-discovery.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

JANUARY 1, 2015 IS COMING – IS YOUR LLC READY?

On January 1, 2015, Florida’s Revised Limited Liability Company Act will apply to ALL LLCs incorporated in and doing business in Florida and it will be the new rule.  The changes from the old LLC Act are dramatic and substantial.  Is your LLC ready?

The old LLC Act was missing a lot of default provisions that previously had to be addressed by operating agreements, if the business had one.  The new Act fills in those gaps and, taken together, operate as a fallback operating agreement for businesses that don’t have one.  But, do you even know what those new provisions are and really want what the Legislature has chosen for your business?

If your company has no operating agreement, the new Act provides that it is deemed member-managed from January 1, 2015.  That may not be the way your company is set up, but it will be on January 1 unless you make a new operating agreement.  Also, members will have certain rights that they previously did not and that you might not want to give them, such as appraisal rights.  Most notably, the new Act sets the value of membership interest as “fair value”, which is a somewhat nebulous concept and requires expensive expert evaluation and testimony to establish.  Maybe your business is better served by a set amount or a formula such as three times EBITA.  Without an operating agreement, you will be stuck with fair value from January 1, 2015.

Your updated or new operating agreement can depart from these new statutory defaults and apply a different set of rules and standards that serve the unique needs of your business.  The cost? Far less to make an operating agreement before January 1, 2015, than to litigate these issues later.  Of course, you can also wait until after January 1, 2015, and hope for the best if you are the gambling type and like to take risks with the business that you built.

The prudent and proper way to approach this situation is to sit down with a qualified expert in business litigation who understands how these issues are litigated and how to structure them to avoid litigation or at least maximize the opportunities for success in future disputes.  Your business is one of the most important elements of your life and livelihood.  If you had a water leak in your house or a problem with your car’s engine, would you just leave it and hope for the best?  Of course not.  So, the optimum time to “repair” your LLC is before the changeover on January 1, 2015.

To schedule an evaluation of your LLC and the preparation of a new operating agreement or other important documents, such as contracts, liability waivers, non-competes, and non-disclosures, to name a few, contact the Law Office of David Steinfeld at (561) 316-7905 or through http://www.thepalmbeachbusinesslawyer.com or http://davidsteinfeld.com

So Your Business Is Moving – What Do You Need To Do?

First off, congratulations.  A move or change is usually positive or results in something positive in business.  So you, the business owner, have decided to change locations or expand to a different one.  Whether your business is sales or service related, you still want to consult with your business lawyer for things like discussing liabilities of transport, storage of assets, and a review of your new lease, preferably before you sign it.

A lease is obviously one of the significant documents that any business owner will sign.  A good time to have counsel review that new, proposed lease is when you are taking an inventory of physical property and exploring your options for transporting your business assets to the new location.  In other words, early in the process and before you move in.

But why?  Why not just sign it, move in, and deal with it later?  That leasing agent looked trustworthy enough . . . what could go wrong, right?!  As the owner of the business, large or small, you have a legal and fiduciary duty to act in and for the best interest of that business.  However, even beyond that, it is just prudent and smart business to avoid problems later by confirming or negotiating issues now.

Not all commercial leases are created equal.  I’ve seen leases generated by shopping center owners that are large nation-wide companies that use the same lease in all fifty States.  Guess what, Florida law is different than some of those, therefore, what is accepted there may be illegal here, like self-help.  One of the biggest issues in Florida is HVAC.  A business without air conditioning can quickly find itself out of business.  Who is responsible for the HVAC at your business location and what does that new lease say about it?

Recently, a client of mine was looking at new commercial space.  The lease made the HVAC the tenant’s responsibility.  I recommended that my client have the HVAC professionally examined and low and behold we find out it is almost 20 years old, hasn’t been maintained, and probably has less than a year’s life left on it.  A new business like that can ill afford a $15,000 or more bill to replace the HVAC in year one; now my client can move in worry free with a new HVAC system from the landlord and even agree to take on the responsibility of maintaining it because the cost of so doing for a new system is very low.  Problem avoided, less to worry about, money saved, and small legal fee expense of business well spent as opposed to larger expenses later.

In sum, the best time to consult with your business lawyer is before you execute any move and lease.  Each situation is unique, but the mind of the business lawyer looks at aspects that the business owner may not consider.  The small expense of the consultation to the business will be worth the peace of mind and protection later.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida Super Lawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions and is a member of the Association of Certified E-Discovery Specialists.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

Or visit us online at http://davidsteinfeld.com

Discovery? What am I, Columbus?!

Quote

My lawyer in my civil lawsuit keeps talking about discovery, but I’m embarrassed to ask what that is.  In criminal cases, I know that the police investigate the crime, the prosecutor charges the defendant, and the trial decides the guilt or innocence.  But what about a civil lawsuit?

In a civil case, it’s the opposite from criminal; the parties have to gather their own evidence through a structured process called “discovery”.  A party files the lawsuit based on a sometimes limited, but good faith belief of the other side’s actions and then undergoes a structured process called discovery to gather the evidence before trial.  The structure is contained in the rules of civil procedure and impacted by the rules of evidence.  Of course, this is a gross oversimplification of the process, but you get the idea.

In civil disputes, each party has the ability in the discovery process to ask the other side for documents and information.  Documents are obtained through Requests to Produce and nowadays can also include electronic records, like e-mails and social media posts.  Other information can be gathered through written questions called Interrogatories or orally through a deposition or both.  Parties can also verify certain facts by asking the other side to admit them in Requests for Admissions.

Sometimes, however, parties outside the lawsuit hold key information.  Discovery may also be obtained from those third-parties or non-parties by way of a deposition or document request without deposition.  But, Interrogatories and Requests for Admissions may only be directed to another party in the lawsuit.  We refer to those involved in a civil suit as a “party” because they can be individuals or business entities.

Discovery takes time to complete because large blocks of time are built into our Florida Rules of Civil Procedure.  For example, after sending a request to another party, you have to wait at least 30 days for a response and sometimes longer depending on the circumstances.  Discovery requests can also sometimes require court action or uncover and lead to other information and evidence that is helpful to claims or yields and supports new claims.  Oftentimes, this is why lawsuits take so long, but that is not always a bad thing because it allows parties to gain some perspective over the dispute as time goes by.

In sum, it is best for any party to get over the embarrassment of not knowing what discovery is and inquire of their attorney as to the purpose and plan of each action in discovery, if the attorney hasn’t already initiated that discussion.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO,  named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network, and was named to the 2014 Florida Super Lawyers List.

Additionally, Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation, the Florida Supreme Court Committee on Business and Contract Jury Instructions, and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.  In 2014, Mr. Steinfeld was made a full Professor of Law at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://davidsteinfeld.com.

Oh no, I’m getting deposed !

First thing – don’t panic.  A deposition is a method in a civil lawsuit in Florida by which a party can obtain information by asking questions directly to the deponent.  They are generally transcribed by a court reporter and can also be videotaped.  Simply put, they are like a Q and A session, but can sometimes be a critical junction in a lawsuit and can make or break the strategy of a party.

Please Note:  This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this topic.  This article is written on the perspective of a business lawsuit in a Florida State Court.  With litigation in particular, each matter is factually distinct, therefore, it is best to consult with your attorney as to the particular circumstances of your case.

In Florida, it is possible to depose someone before a lawsuit is filed, but such instances are not common and most depositions occur during the discovery phase of a lawsuit.  The discovery phase is normally after the pleadings or documents forming the suit are filed with the Court, but before a trial.

Procedurally, the participants coordinate the time and date for the deposition and provide written notice, which, in State Court unlike Federal Court, is filed with the Clerk of Court.  If the person or corporate representative being deposed is not a party to the lawsuit, then the notice is in the form of a subpoena and is served by a process server unless such service is waived.  Thus, because our Courts oversee the process to a certain extent, failure to appear or participate can result in sanctions unless there is a proper basis to do so.

If you are a represented party to a lawsuit, your attorney will discuss where and when the deposition will occur, who will be there, and what you can expect.  The most important thing your attorney will tell you is always tell the truth.  When you begin a deposition, you will be placed under oath to tell the truth.  Not only it is improper and illegal to intentionally violate that oath, but it will seriously damage or destroy your credibility and claims if you don’t tell the truth.

Your attorney will also discuss whether you should review any documents before the deposition and whether you should bring any materials to the deposition.  Some other important Dos and Don’ts in preparing for a deposition are:

  1. Don’t volunteer information particularly where no question ahs been asked
  2. Don’t divulge what you and your attorney have discussed unless your agree in advance with your attorney to do so
  3. Do listen to the question and consider your answer – it’s ok to take your time
  4. Do inform the attorney if you don’t understand the question and ask the attorney to rephrase it
  5. Don’t guess – it is acceptable to say “I don’t know”
  6. Do always tell the truth
  7. Don’t try to answer questions about documents without seeing the documents
  8. Do review any document provided to you fully before answering a question about the document
  9. Do inform your attorney if you need to take a break or if you are uncomfortable or unsure of anything
  10. Do be sure to answer verbally to make it easier on the Court Reporter – nods of the head don’t translate well in a transcript and “uh-huh” can mean a variety of things
  11. Do dress appropriately if the deposition will be videotaped (you’ll know in advance)
  12. Don’t try to outsmart the other lawyer or to play lawyer
  13. Don’t accept the other attorney’s statements, representations, “facts” or opinions unless they are absolutely and unquestionably accurate

David Steinfeld, Esq.

Florida Bar Board Certified Business Litigation Lawyer

Martindale-Hubbell AV-Preeminent (Highest) Peer Review Rated

Contact me at:             dave@davidsteinfeld.com

 

WEBSITE:         www.davidsteinfeld.com

FACEBOOK:     http://www.facebook.com/pages/David-Steinfeld-Esq/193459194021369#

TWITTER:         http://www.twitter.com/DSteinfeldEsq

LINKEDIN:         http://www.linkedin.com/in/davidsteinfeld

AVVO:               http://www.avvo.com/attorneys/34996-fl-david-steinfeld-1244715.html

MARTINDALE:  http://www.martindale.com/David-Steinfeld/2444967-lawyer.htm

Mediating e-Discovery Disputes

By David Steinfeld, Esq. and Edmund J. Sikorski, Jr., J.D.

Discovery of Electronically Stored Information (ESI) is the newest and developing area of practice in civil litigation.  E-discovery began in complex commercial disputes, but is now appearing in a multitude of cases and will continue to develop and permeate all manner of civil cases.

Mediation is a useful and efficient method to deal with e-discovery issues.  It can afford the parties control over the process and reduce their costs. In any mediation, the Worst Alternative to a Negotiated Agreement (WANTNA) is one where a Judge “splits the baby”.  This may have a greater impact in e-discovery because it can propel a case on a course that the parties did not intend or desire.  In e-discovery mediation, the parties take control over the outcome of the process, what is being requested, how it is produced, and when.

The Commitee comment to Florida’s new and amended Rule 1.280 provides, “The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a Rule 1.200 or Rule 1.201 case management conference.”  This guidance strongly suggests that parties would be wise to consider mediation in the early stages of the e-discovery process in appropraite cases to avoid unnecessary litigation and use of limited judicial resources.

Unlike ordinary mediation that is geared toward resolving the entire dispute, e-discovery mediation is limited to a singular issue within the dispute that must be resolved before a case can advance to a final mediation or trial.  E-discovery mediation is a cost-effective mechanism to manage the situation.  The parties’ good faith attempts to resolve the issue may even shield them from the imposition of sanctions.

Some of the advantages of e-discovery mediation are:

  • Identification and remedying of miscommunications and misunderstandings
  • Designing workable solutions for issues of ESI sources, presentation, and form of production
  • Definition of parameters and confidentiality issues
  • Determinations of relevancy
  • Development of timelines and sequences for production
  • Avoidance of spoliation
  • Allocation of costs

The goal of e-discovery mediation is for parties to conclude with an agreed e-discovery plan over which they have and will maintain control.  This control, in turn, results in a product that reduces costs and allows for the efficient adjudication of any civil dispute.

From a practitioner’s perspective, e-discovery mediation, just like e-discovery itself, may not be necessary or appropriate in every case, however, the costs of e-discovery and ESI experts, whether borne by a plaintiff or defendant, can be substantial and can even rise to the level of precluding a party from having the merits of its claim reached.  Thus, where appropriate, e-discovery mediation can be an extremely beneficial mechanism for all the parties to a dispute and can form the foundation necessary for parties to begin the process of working together to ultimately resolve their dispute in a manner and form that is acceptable to them.

Is Your Cloud Data Really Secure?

I read an interesting article not long ago by Mr. Michael Geist, a well-respected Canadian law professor, that got me thinking whether data stored in the cloud by Florida businesses is really secure.  The article and Professor Geist’s impressive bio can be found at michaelgeist.ca/content/view/6755/125.

At an increasing pace, businesses around the globe are transitioning their data to cloud storage for a variety of reasons.  On September 1, 2012, the Florida legislature enacted a set of comprehensive electronic discovery rules for civil cases that now allow parties in lawsuits to obtain electronically stored information (ESI) from other parties and even non-parties.  Businesses can and should be taking steps now to ensure they can avail themselves of the safe harbor provisions of those Rules with data management and litigation hold plans prepared by and with their business counsel.  The Law Office of David Steinfeld has several videos and articles on these plans on its website at http://www.davidsteinfeld.com for your reference.

Which brings us to the question of whether data is secure in the cloud and why this is important for every business to consider when selecting a cloud storage provider.  In addition to protecting proprietary data and trade secrets of the business and ensuring access at all times, you should consider where the data is stored and what the policies of the storage provider are with regard to allowing third-party access.

Professor Geist’s article addressed the US Government’s efforts to obtain the cloud data of a company under investigation in a criminal case, but in civil discovery the standard that Judges apply is whether a business has possession, custody or control over certain data.  While a business may not have physical possession or actual custody over ESI as it once did when paper documents were in a file cabinet at the business’s office, the choice to store ESI on servers hosted by another will most likely lead to a determination by a Court that the business at least has control over the data requiring production of the data if all other requisite elements are met.

Therefore, it is important for any business storing data in the cloud or migrating data to the cloud to consider the policies and procedures of the cloud provider and to understand when that provider may refuse access or allow third-party access to the business’s data.

What If I Get A Subpoena For Electronic Documents?

You may have heard or read that Florida updated its State Court Rules of Civil Procedure on September, 1, 2012, to specifically allow for the discovery of electronically stored information (ESI) in civil lawsuits.  This change requires businesses to now manage their electronic data.  You may have thought that this does not apply to your business because you are not involved in a lawsuit.  You may have also thought that you can put off data management planning until you are involved in a lawsuit.  But, you do not have to be sued or file a lawsuit to be subject to these Rules; your electronic records can be sought by a plaintiff or a defendant in a lawsuit that your business is not even named in.

This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this important and deep impacting topic.  Florida’s new electronic discovery (e-discovery) rules contain a safe harbor provision that protects businesses in the case if deletion or destruction of ESI, but only if it occurred through the routine operation of the data management system.  What does this translate to for your business ?  You need a data management plan in place in advance in order to take advantage of the safe harbor provisions later.

There are two ways that a plaintiff or a defendant in a lawsuit can seek and obtain your electronic records, including e-mail, if you are not a party to the litigation.  They can serve a subpoena for the documents or they can serve a subpoena for deposition that includes a document request, called a subpoena duces tecum.  Professionalism generally dictates that the party requesting the records would notify your business in advance and co-ordinate the request or deposition, but circumstances may require another approach, therefore, the first notice that your business may have that your electronic records are being sought in a lawsuit in which your business is not a party is a proverbial knock on the door from a process server.

So what do you do?  The first and immediate step should be to contact your attorney or a Board Certified business litigation attorney if you don’t have one (you can find a list of all Board Certified business litigation attorneys on the Florida Bar’s website at http://www.flabar.org/  ).  Assuming you have a data management plan in place and are following that plan, the costs associated with responding and producing the data are greatly reduced.  In some cases, you may not even bear all of these costs, but if you do not have any data management plan at all, you expose your business to substantially increased expenses and even the risk of sanctions and penalties if your business can not locate or has deleted the data.

There are good arguments to be made that you lacked notice or had no duty to maintain the requested data, but now you have to pay your attorney to advance those to the Court and you have no guaranty that you will win those.  Therefore, why place the business that you have worked so hard to build in such a predicament when it is much less expensive and much easier to put these plans in place now.

With the increasing pace at which businesses operating in Florida are storing data electronically and using e-mail to communicate, it only makes sense to establish a method to manage this data and enact policies for employees about social media usage and storing company data on phones, tablets, laptops, and other such devices that connect to your company’s servers.  The Law Office of David Steinfeld can assist your business in preparing data management and litigatio hold plans to optimize your businesses’ opportunity to avail itself of the safe harbor provisions of the new Florida e-discovery Rules, to protct your business, and reduce your costs later if you are involved directly in a lawsuit or if your electronic records are sought by a party in a lawsuit.  To discuss data management planning for your business either in person, by phone, or video chat, you can reach the Law Office of David Steinfeld at info@davidsteinfeld.com or (561) 316-7905.

For more information please visit http://davidsteinfeld.com