Discovery

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On July 11, 2017, the Florida Supreme Court accepted jurisdiction of a case in which it is expected to finally decide, conclusively, whether Florida courts are to apply the Frye or Daubert standard to determine admissibility of expert or scientific evidence.

The Frye standard, which was adopted in Florida in 1952, applies to expert testimony based upon new or novel scientific evidence. Under the Frye standard, “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’”

On February 28, 2017, Southern District of New York Magistrate Judge Andrew J. Peck issued a warning shot, stylized as a “wake-up call,” to the SDNY Bar: comply with the now 15-month-old amendments to the Federal Rules of Civil Procedure when objecting to requests for the production of documents and electronically stored information (ESI), or do not bother objecting at all.

A ski trip with your fiancé results in a great photo of the two of you on a snow covered mountain; obviously, the picture is destined for your Facebook page. This picture may be used for more than to show off your good time and skiing ability, however, if you’re the plaintiff in a personal injury lawsuit. In Scott v. United States Postal Service, which concerns a personal injury suit, a Louisiana District Court recently held that while social media is discoverable, discovery requests involving social media must still be tailored to lead to relevant and admissible evidence.

The rules governing discovery of electronically stored information, though not fully developed, have matured enough to provide the basic “do’s and don’ts” for attorneys. Frequently, a party must produce electronic documents, such as Word documents, in their native format, rather than producing paper copies, in response to discovery requests; this obligation includes producing the document’s metadata, the data automatically embedded in an electronic file that contain information about the document, such as its origin and history of revisions. But what are a lawyer’s responsibilities concerning the transmission or receipt of metadata outside of the discovery context? A recent ethics opinion from the State Bar of Texas offers some guidance—and a stern warning: attorneys risk violating state rules of professional conduct if they mishandle metadata.

A recent federal court order highlights the scope, and the limitations, of a U.S. court’s authority to order domestic discovery for use in a foreign proceeding under 28 U.S.C. § 1782. The court in  In re Ex Parte Application of Qualcomm Incorporated rejected Qualcomm’s Section 1782 applications to subpoena a host of U.S. technology giants for information to use in Qualcomm’s defense of a Korea Fair Trade Commission (“KFTC”) proceeding.