Litigation partners Chris Boehning and Dan Toal’s latest federal e-discovery column, “Second Circuit Sets the Floor for Rule 60(b)(3) Discovery ‘Misconduct,’” appeared in the June 3 issue of the New York Law Journal. The authors discuss a recent decision from the Second Circuit in Adidas America, Inc. v. Thom Browne, Inc., where the court found that a merely negligent discovery violation does not constitute “misconduct” under the rule, and therefore cannot justify setting aside a final judgment. While the Second Circuit did not specify what higher level of culpability would suffice for post-judgment relief, the decision offers guidance on what makes a discovery process defensible when later scrutinized. The authors discuss practical takeaways for litigants and counsel, such as the importance of designing and faithfully executing quality-control processes in document review, and of having clear communication and technical precision between counsel and e-discovery vendors.
Deputy chair and counsel, e-discovery, Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.
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