H. Christopher Boehning

October 02, 2017 | New York Law Journal

In his Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: 'Van Zant' is a reminder to parties of the expansive notion of control in the circuit and that behavior by parties or even non-parties with information in a company's legal control can have a potentially significant impact on the outcome of a matter. The decision also demonstrates that electronically stored information is more than just email and that parties should thoughtfully consider and manage information such as text messages as part of their preservation and e-discovery efforts.

By H. Christopher Boehning and Daniel J. Toal

6 minute read

July 31, 2017 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: Technology-assisted review, or TAR, is undoubtedly gaining traction in e-discovery practice in complex civil litigations and regulatory investigations. However, practitioners and judges still grapple with inconsistencies and unresolved issues regarding its use and applicability, in no small part due to a shortage of legal opinions on the topic and a lack of consistency in the decisions that do exist.

By H. Christopher Boehning and Daniel J. Toal

11 minute read

June 05, 2017 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss 'Hsueh v. N.Y. State Dep't of Fin. Servs.', a decision that adds to a growing body of law supporting an application of a court's inherent power to sanction. In endorsing a circuit-specific test for the applicability of an adverse inference sanction for failure to preserve ESI, the decision may contribute to uncertainty around sanctions that Rule 37(e) was intended to remove and may reopen the circuit court split that the rule was designed to resolve.

By H. Christopher Boehning and Daniel J. Toal

6 minute read

April 04, 2017 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: The changes to Rule 34 have not received much attention from practitioners and judges, especially when compared to other changes, such as those to Rules 26 and 37. Recently, though, two judges who have had it with boilerplate responses and objections garnered attention by releasing fiery decisions promising sanctions for any future discovery response that fails to comply with amended Rule 34 or other Federal Rules of Civil Procedure.

By H. Christopher Boehning and Daniel J. Toal

15 minute read

February 06, 2017 | New York Law Journal

In their Federal E-Discovery column, Daniel J. Toal and H. Christopher Boehning write: While there have been a number of court decisions that have interpreted the new language of Rule 26(b)(1), some practitioners—and courts—still continue to cite to the old version of the Rule. A recent decision applied the new version in finding requested e-discovery from a party's non-U.S. subsidiaries to be out of scope, and reminded the bench and bar that the Rule changed on Dec. 1, 2015 and that they should not rely on the old version of the Rule.

By Daniel J. Toal and H. Christopher Boehning

11 minute read

December 05, 2016 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal of Paul, Weiss, Rifkind, Wharton & Garrison discuss a recent decision which determined that counsel's failure to reasonably supervise an electronic document search by its client's employee was a sanctionable violation of Federal Rule of Civil Procedure 26(g).

By H. Christopher Boehning and Daniel J. Toal

14 minute read

October 03, 2016 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss the recent decision in 'Hyles v. New York City', in which Magistrate Judge Andrew Peck faced the question of whether, upon request by the opposing party, to force a responding party to use predictive coding against that party's own wishes. As put by Judge Peck, "[t]he short answer is a decisive 'NO.'"

By H. Christopher Boehning and Daniel J. Toal

14 minute read

August 01, 2016 | New York Law Journal

H. Christopher Boehning and Daniel J. Toal discuss a recent decision in which, due to a rogue executive's misconduct and some questionable follow-up efforts by the company itself, a district court imposed what are arguably the most severe sanctions seen in a decision since the enactment of amended Rule 37(e).

By H. Christopher Boehning and Daniel J. Toal

14 minute read

June 07, 2016 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal discuss three recent decisions that help illustrate how the integration of personal devices and email into the corporate environment, whether authorized or not, is changing discovery in the corporate litigation context.

By H. Christopher Boehning and Daniel J. Toal

18 minute read

April 05, 2016 | New York Law Journal

In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal write: FRCP 26(b)(1), as amended, effective Dec. 1, 2015, clearly establishes the scope of discovery to be items that are (1) relevant, (2) non-privileged, and (3) proportional to the needs of the case. Since the enactment of the amended rule, courts appear to be faithfully and pragmatically enforcing these standards.

By H. Christopher Boehning and Daniel J. Toal

32 minute read