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New Sedona Conference Commentary Recommends Restricting the Reach of Document Requests Directed to U.S. Affiliates of Overseas...

Earlier this month, the Sedona Conference issued the final version of its “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control.’” The Commentary recommends adopting the “legal right” test to analyze the...more

$3 Million Spoliation Sanction Despite Company’s Litigation Hold

Manufacturers involved in litigation must properly preserve electronically-stored information (“ESI”) or potentially face daunting sanctions. A recent antitrust case, however, demonstrates that lessons—multi-million dollar...more

Bloomberg Chat Is No Idle Chatter

Gone are the days when brokers or buy-side professionals picked up the phone to make bids and close deals. Instead, they “chat” through their Bloomberg Terminals. The more than 320,000 traders, investors, and other market...more

E Pluribus Unum Is for eDiscovery Too

The proliferation of data to the point of excess is a common refrain and problem for many organizations today. The scale to which data has grown recently has a direct correlation to eDiscovery – as organizations struggle to...more

May The Force be with You: Binding the E-Discovery Process Together

The idea that all things are connected is a comforting one. Some people long to be unified with other people, both loved ones and strangers. Others seek unity with the natural world--flora and fauna, water and stone. Even in...more

Everything but the Kitchen Sink: New Data Types and E-Discovery

Almost any activity we take part in creates data; it no longer resides just on email servers or your laptop or mobile phones. Data resides in the cloud, in apps, on social media, in your watch or fitness tracker. For...more

Friday Funnies: Exterro's E-Discovery and IG Comics and Memes Page

We here at Exterro love E-Discovery! But it helps to have a sense of humor. That's why we created our E-Discovery and Information Governance Memes and Cartoons Series. And now you can go back and relive the magic...more

“We Give Up!”: Supreme Court Strikes Down All E-Discovery Amendments

In a shocking turn of events early this morning, April 1, 2016, the SCOTUS reset the clock to the days before electronic information was made discoverable in courts by striking down all so-called “E-Discovery Amendments” in...more

Episode 11: Better Know a Judge: Vice Chancellor Joseph R. Slights, III of the Delaware Court of Chancery

On this episode of CorpCast, we continue our “Better Know a Judge” series with an interview of the newest member of the Delaware Court of Chancery, Joseph R. Slights, III. Joe discusses why he took a pay cut while his...more

CorpCast Episode 10: eDiscovery Review

On today’s episode of CorpCast, we are joined by our colleagues Ian McCauley and Laura Readinger. Ian and Laura’s practice focuses on eDiscovery, and this episode covers Delaware developments on the subject over the past 16 months. We cover global issues such as the role of Delaware counsel in discovery, and the Court of Chancery’s growing concern regarding the conduct of counsel throughout discovery. We also take a look at defensible document collection, preservation of text messages, and production of personal email. Finally, we discuss very narrow topics that the Court has tackled, including production of metadata and document review. Love what you hear? Go to our podcast tab for archived episodes and be sure to follow @DECorpCast for the latest updates. If you have questions or comments, you can reach us at CorpCast@morrisjames.com. Thank you for listening!more

Be Reasonable: What Judges Will Be Looking For When it Comes to Rule 37(e)

In a recent article published by ACEDS, a lively discussion about the recently amended FRCP Rule 37 takes place. It seems that the amendment was written in the wee hours the night before they were presented publicly as a draft. Eric Mandel, founder and managing member of Indicium Law says, “A lot of smart people…[made] a good faith effort to amend the rule. But the rule was not subjected to the same scrutiny as the rest of the amended rules," and so more time will be needed to understand its effect.more

The Case of the Clone Tablet: An Exterro Choose Your Own E-Discovery Adventure

My guess is that anyone who was alive in the 1980's has chosen their own adventure at least a few times. The Choose Your Own Adventure books were some of my favorites as a kid, an affordable and portable interactive fantasy game in the days before smartphones saved us from boring car rides or sitting in waiting rooms. The goal was often just to live to the end because CYOA books had the most creative deaths awaiting your character, so the further into the story you went, you would be sure to keep a thumb holding the place of your last choice in case it turned out to be something you didn't want.more

Objections to Document Demands Under Amended Rule 34

The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this approach is no longer acceptable in federal courts. December 1, 2015, marked the enactment of a substantial package of amendments to the Federal Rules of Civil Procedure that was driven in large part by concerns related to e-discovery and the production of electronically stored information (ESI).more

Acceptance of Predictive Coding Spreads to the UK

Following the precedent set by Da Silva Moore1 in 2012, courts across the United States have adopted the use of predictive coding (sometimes referred to as “technology assisted review”) as a means of reducing the time and cost of discovery. Other jurisdictions around the world are also beginning to embrace this evolving technology.more

10 Tips for Litigation Hold Plans

A “litigation hold plan” guides an organization in carrying out its evidence preservation obligations. Many factors come into play when the need to preserve records is triggered, and each organization has unique systems, policies, and practices. There is no one-size-fits-all plan, but there are important considerations that should be addressed. more

Delaware's Court of Chancery Clarifies Scope of Inspection Under Books and Records Demands

In Amalgamated Bank v. Yahoo!, Inc., C.A. No. 10774-VCL (Del. Ch. Feb. 2, 2016), Plaintiff Amalgamated Bank’s Section 220 books and records demand sought, among other things, the emails of certain Yahoo officers and directors. Yahoo objected to the request as overly broad, but the Court found differently. more

Genius like Churchill: Improving the E-Discovery Process in 2016 with Technology

Winston Churchill said, “True genius resides in the capacity for evaluation of uncertain and conflicting information.” So we here at Exterro took his advice concerning our recently released 2nd Annual Judges Survey where, after questioning 14 federal judges and 22 attorneys, it became clear that an expectation gap still exists between what judges expect and what attorneys think is appropriate. In response, we put together a white paper analyzing the findings while looking at how technology can help resolve e-discovery issues attorneys and judges both face.more

CorpCast Episode 9: 2015 Year in Review

Welcome back to CorpCast! In this 2015 Year in Review, we discuss several important cases from the past year, starting with the tidal wave of antagonism in the Court of Chancery towards disclosure-only settlements ending with In re Trulia, Inc. Stockholder Litigation. We then move to discuss several instances of “financial advisors behaving badly,” with a look at In re TIBCO Software Inc. Stockholders Litigation and RBC Capital Markets, LLC v. Jervis. We’ll also take a look at opinions dealing with conflicted transactions, revisiting Corwin v. KKR Financial Holdings LLC and Delaware County Employees Retirement Fund v. Sanchez, as well as discussing In re Cornerstone Therapeutics Inc., Shareholder Litigation and In re Dole Food Co., Inc. Stockholder Litigation. Finally, we’ll look to some contract actions, including 1 Oak Private Equity Venture Capital Limited v. Twitter, Inc. and SIGA Technologies, Inc. v. PharmAthene, Inc., and touch on the invalidation of company bylaws in In re Vaalco Energy Inc. Consolidated Stockholder Litigation. Of note, our own stat guy tells us we (Pete) misstated the liability in RBC Capital Markets. It was $75 million, not $83 million. Love what you hear? Go to our podcast tab for archived episodes and be sure to follow @DECorpCast for the latest updates. If you have questions or comments, you can reach us at CorpCast@morrisjames.com. Thank you for listening!more

Trends, Challenges, Tech: E-Discovery Enters a New Era

E-Discovery is no longer in its infancy. A decade has passed since the 2006 FRCP amendment that made ESI discoverable, and in that time legal teams have been working out how best to successfully accomplish this process. Now, simply getting it done is not enough. Effectiveness, efficiency, and cost are driving the next era of E-Discovery. But as Bill Gates said, “Automation applied to an efficient operation will magnify the efficiency; automation applied to an inefficient operation will magnify the inefficiency.” With that in mind, it’s not just a matter of throwing technology at problems, but instead, looking for the solution which will maximize efficiencies in every aspect of the e-discovery process.more

Amendments to ESI Spoliation Sanctions Seek to Create Uniformity in Federal Courts

Federal Rule of Civil Procedure 37(e) sets forth the requirements for the retention of electronically stored information ("ESI") and the corresponding sanctions available to remedy the loss of ESI. New amendments to Rule 37(e) came into effect on December 1, 2015 in an effort to create a uniform federal standard for preserving ESI and for the application of sanctions on parties failing to fulfill their duty to preserve. Prior to the amendments, federal courts lacked uniformity in granting spoliation sanctions, and a defendant's exposure to such sanctions often varied depending on the jurisdiction where the plaintiff decided to file the complaint. The standards for granting the harshest spoliation sanctions—dismissal and an adverse inference instruction—broadly ranged from a showing of "bad faith" to proof of negligence. This inconsistent approach to the treatment of preservation obligations and sanctions among the courts caused confusion in litigation and led to heightened expenses for parties who over-preserved ESI for fear of sanctions.more

#LTNY16: That’s a Wrap!

Whew! After three electrifying (and tiring) days, Legal Tech New York 2016 is in the books! For those of you that experienced the show first-hand, we don’t have to tell you that this year’s conference was another incredible year for networking, new technology, neuron-stimulating educational sessions and nights out on the town. In the event you hung back and enjoyed a productive week in the office, here’s a quick #LTNY16 wrap-up.more

Groundhog Day: Don’t Get Stuck When Collecting New Data Types

February 2nd is Groundhog Day, and while we all know of the tradition of Punxsutawney Phil’s famous shadow forecasting the arrival of spring, many of us can’t help but think of the 1993 film starring Bill Murray. In it, he plays a jaded reporter who finds himself stuck reliving the same day, Groundhog Day, over and over again, like some existential space-time gif where nothing he does makes a difference.more

Judge v. Attorney: Exterro Releases its 2nd Annual Federal Judges Survey

The digital age is sweet. The things that are a part of everyday life today were only sci-fi realities a few years ago. But the problem that comes with any age of advancement is the need for debate and analysis. Too often, the goal becomes the great feat that lies just out of grasp—crossing an ocean by galleon or by text message—and the goal of understanding the outcomes and effects the great feat brings with it moves to the back burner.more

The Top Seven Takeaways from the December, 2015 Federal Rules Amendments

Can rule changes streamline litigation to make discovery proportional to the case, improve case management, cut down foot-dragging in response to document requests, eliminate “over-preservation” of records and expedite deadlines? Effective December 1, 2015, amendments to Federal Rules of Civil Procedure 1, 4, 16, 26, 34, 37 and 84 seek to do exactly that.more

Taking Advantage of New Safe Harbor Against Discovery Sanctions

As your company wrestles with how to manage the virtual mountains of electronically stored information (ESI) that are created in today’s workplace, you may continue to wonder what steps to take to preserve information when litigation is looming. Newly adopted amendments to the Federal Rules of Civil Procedure offer a safe harbor against sanctions for failing to adequately preserve this data. You no longer have to fear that an innocent misstep or a lack of sufficient information in the preservation process could lead to case-ending or financially prohibitive sanctions.more

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