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Hylton on Information Costs and Civil Litigation
September 16, 2018
Keith Hylton has posted to SSRN Information Costs and the Civil Justice System. The abstract provides: Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes...
September 16, 2018
Keith Hylton has posted to SSRN Information Costs and the Civil Justice System. The abstract provides: Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes...
Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms
November 3, 2017
Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present...
November 3, 2017
Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present...
SCOTX Offers Significant Guidance Regarding Discovery of ESI
June 21, 2017
The Supreme Court of Texas has issued a significant decision related to the discovery of electronically stored information (“ESI”). In a consolidated case titled In re State Farm Lloyds, No. 15-0905 (Texas, May 26, 2017), a group of residential homeowners sued their insurer, State Farm Lloyds, over the company’s purported underpayment of their damage claims following a hail storm. As part of discovery, a trial court ordered the insurer to produce any ESI in native or near-native format...
June 21, 2017
The Supreme Court of Texas has issued a significant decision related to the discovery of electronically stored information (“ESI”). In a consolidated case titled In re State Farm Lloyds, No. 15-0905 (Texas, May 26, 2017), a group of residential homeowners sued their insurer, State Farm Lloyds, over the company’s purported underpayment of their damage claims following a hail storm. As part of discovery, a trial court ordered the insurer to produce any ESI in native or near-native format...
No Sanctions for Unintentional, Automatic Deletion of Web History and Related Information
June 19, 2017
In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure...
June 19, 2017
In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure...
SCOTX Addresses Format of Production, Applies Proportionality
June 13, 2017
Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a “just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.” In this dispute over the format of production, the Supreme Court of Texas took...
June 13, 2017
Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a “just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.” In this dispute over the format of production, the Supreme Court of Texas took...
Data in Divorce
January 8, 2017
From the New York Times: A marriage is not just the union of two people. It is also the union of their data. And when they divorce, the data often gets spilled. The electorate is now witnessing a vivid example of this, arising from the separation of Anthony D. Weiner, a former congressman, and Huma Abedin, a top aide to Hillary Clinton. The F.B.I. is poring over their emails with a presidential election just days away. Divorce lawyers and data analysts interviewed on Monday said less public versions...
January 8, 2017
From the New York Times: A marriage is not just the union of two people. It is also the union of their data. And when they divorce, the data often gets spilled. The electorate is now witnessing a vivid example of this, arising from the separation of Anthony D. Weiner, a former congressman, and Huma Abedin, a top aide to Hillary Clinton. The F.B.I. is poring over their emails with a presidential election just days away. Divorce lawyers and data analysts interviewed on Monday said less public versions...
Predictive Coding: A Better Way to Deal with Electronically Stored Information
December 20, 2016
Litigators bemoan the fact that the volume of documents and data produced and requested during discovery continues to increase year on year—as does the volume of electronically stored information (ESI) that clients must preserve. There is a glut of ESI arising as a consequence of the exponential growth in the creation and exchange of electronic files and email traffic. The result is that even in cases with a relatively low monetary value, there are often still hundreds of thousands or even millions...
December 20, 2016
Litigators bemoan the fact that the volume of documents and data produced and requested during discovery continues to increase year on year—as does the volume of electronically stored information (ESI) that clients must preserve. There is a glut of ESI arising as a consequence of the exponential growth in the creation and exchange of electronic files and email traffic. The result is that even in cases with a relatively low monetary value, there are often still hundreds of thousands or even millions...
Conduct Just the Right Amount of Discovery for Mediation
October 26, 2015
Albert Einstein famously said, “We can’t solve problems by using the same kind of thinking we used when we created them.” And yet many litigators continue to believe that before a legal dispute can be resolved they need to thoroughly review every shred of evidence, including noticing and enduring a series of uncomfortable and expensive depositions from every identifiable potential witness. Quite simply, you don’t need to undertake such thorough discovery before mediation. In modern American...
October 26, 2015
Albert Einstein famously said, “We can’t solve problems by using the same kind of thinking we used when we created them.” And yet many litigators continue to believe that before a legal dispute can be resolved they need to thoroughly review every shred of evidence, including noticing and enduring a series of uncomfortable and expensive depositions from every identifiable potential witness. Quite simply, you don’t need to undertake such thorough discovery before mediation. In modern American...
A New Appellate Court Opinion on “Pocket Dialing”
August 2, 2015
Yes, I know we all call it something else other than "pocket dialing," but congratulations to the Sixth Circuit U.S. Court of Appeals for using a more polite term. Huff vs Spaw (Download in PDF) was issued this week. I don't usually comment on substantive law issues, but the facts on this one are pretty interesting. James Huff inadvertently placed a pocket-dial call to Carol Spaw while he was on a business trip in Italy. He discussed the possible firing of Spaw's supervisor first with a colleague...
August 2, 2015
Yes, I know we all call it something else other than "pocket dialing," but congratulations to the Sixth Circuit U.S. Court of Appeals for using a more polite term. Huff vs Spaw (Download in PDF) was issued this week. I don't usually comment on substantive law issues, but the facts on this one are pretty interesting. James Huff inadvertently placed a pocket-dial call to Carol Spaw while he was on a business trip in Italy. He discussed the possible firing of Spaw's supervisor first with a colleague...
Thermostats That Testify—Who Knew?
July 10, 2015
Instead of the usual carping about how we’ve lost all our privacy, let’s talk about all of the new data available to the knowledgeable litigator in discovery as a result of this very same loss. I’m going to limit it to data that allow you to physically track someone’s whereabouts—an electronic private investigator, as it were. First, let me paraphrase a newspaper item that caught my eye several years ago: A Contra Costa police detective moonlighting as a private investigator was found...
July 10, 2015
Instead of the usual carping about how we’ve lost all our privacy, let’s talk about all of the new data available to the knowledgeable litigator in discovery as a result of this very same loss. I’m going to limit it to data that allow you to physically track someone’s whereabouts—an electronic private investigator, as it were. First, let me paraphrase a newspaper item that caught my eye several years ago: A Contra Costa police detective moonlighting as a private investigator was found...
