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Three Tips to Verify the Security of Your E-Discovery Software

SOC 2® Type 2 Certification and Zapproved–Building Trust and Confidence that Your Data is Secure - Today in e-discovery, it should be no surprise that cyber security is a rising concern among corporate leaders and that...more

[Event] Continuing Legal Education and Chicago Cubs Rooftop Event - August 11th, Chicago, Illinois

Join Freeborn & Peters LLP for an afternoon of Continuing Legal Education classes followed by an evening of baseball hosted by the firm's Litigation Practice Group....more

The European, Middle Eastern and African Investigations Review 2016: United Kingdom: handling internal investigations

With so much potentially at stake, the initial steps and strategic decisions taken in any company investigation are critical to setting the tone for a focused, credible and effective inquiry. This is paramount not only for...more

An Investigative Piece on Clawback Agreements

Who: Clawback agreement; alias: Rule 502 Agreement. What: A mechanism to take back inadvertently disclosed privileged and/or confidential information and protect against an argument that you waived privilege....more

I am not a Crook: Avoiding the Politics of Data Preservation with a Defensible E-Discovery Process

Of course we've all heard about Hillary's emails, and Trump certainly has email trouble of his own. For a while, Politwoops kept track of mistweets and other online regrets even after they were deleted until Twitter (and...more

Want Sanctions? Establish That Relevant Information Was Actually Lost

FiTeq, Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016). In an order disposing of eleven motions in limine, the court denied the plaintiff’s request for sanctions from alleged...more

Spoliation Claims Are Not a Recreational Vehicle to Be Raised at Any Time in a Case

LaFerrera v. Camping World RV Sales of Birmingham, No. 15-00473 (N.D. Ala. Mar. 21, 2016). Relying on state law, the court rejected a request for spoliation sanctions included as part of a motion for summary judgment...more

Never Second Guess a Second Request

Massive mergers are never a simple matter for organizations and their antitrust attorneys. The Second Request process can be a major burden for merging organizations since it requires that companies review, analyze and...more

[Webinar] Got Data? Analytics to the Rescue - April 19th, 12:00pm CDT

Within an enterprise, data is a dual-edged sword – it’s both the lifeblood powering critical business operations and the kryptonite preventing the business from flexing its muscle. When investigations, litigation or...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

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

Plaintiff Lacks Control of Employees’ Personal Accounts, Motion to Compel Denied (California)

Matthew Enter. v. Chrysler Grp., 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015) - In this case, the defendant moved to compel additional ESI, including emails from employees’ corporate Gmail accounts and financial documents. The plaintiff did not provide all of its employees with a company email account, and many used their personal email accounts for business. The plaintiff argued that it could not comply with the defendant’s motion because those accounts were not in its “possession, custody, or control” and were thus outside the scope of discovery. The defendant argued that the plaintiff’s employee handbook “instructs employees to keep ‘internal information’ in the ‘sole possession’” of the plaintiff’s business.more

Court Excludes Expert Testimony Weakened by Plaintiff’s Own Spoliation (Pennsylvania)

Bruno v. Bozzuto’s, 2015 WL 7294464 (M.D. Pa. Nov. 19, 2015) - In this breach of contract case, the plaintiffs sued the defendant for allegedly breaching their supply agreement. In response to the defendant’s production requests, one of the plaintiffs revealed that, in the years prior to the impending lawsuit, she destroyed all of the plaintiffs’ financial records, including those on the plaintiffs’ computer.more

Benchmark surveys: GCs, Executives Not Prepared to Defend Against Cyberbreaches - Key Protective Steps

Although cybersecurity has become a more prominent issue for executives and boards of directors, three recent benchmark surveys - the BDO Board Survey, the 2015 Consero Group’s General Counsel Data Survey, and the 2015 US State of Cybercrime Survey - indicate that a number of cyber-preparedness gaps remain. more

Expanding Cybersecurity Safeguarding Requirements, Reporting Obligations, and Cloud-Based Security: A Brief Guide to Understanding DoD’s Interim Rule for Contractors

The United States Department of Defense promulgated an “interim” rule, effective August 26, 2015, which placed imposing and costly burdens on all DoD contractors and subcontractors (including small businesses and commercial item contractors) in the areas of cybersecurity and cloud-based security. See 80 Fed. Reg. 51,739 (August 26, 2015). The public comment period ended in late October and reflects the frustrations and concerns many in the DoD contracting community are having in understanding and implementing its requirements.more

Lessons Learned from Target’s Data Breach Discovery Win - Five Strategies for Maintaining Privilege in the Aftermath of a Data Breach

A thousand questions immediately flood any lawyer’s mind when they first hear that their client may have been affected by a data breach. How did it happen? What data were affected? Was there any personal information affected, what type, and how much? When did it happen? How much time passed before we discovered it? These are a few of the questions that must be answered—and answered fast—before you can advise your client on the many time-sensitive, high-stakes legal obligations that arise from a data breach.more

Socially Aware: The Social Media Law Update Volume 6, Issue 4

Five social media law issues to discuss with your clients - The explosive growth of social media has clients facing legal questions that didn’t even exist a few short years ago. Helping your clients navigate this muddled legal landscape will have them clicking “like” in no time. What's in a like? - Not long ago, the word “like” was primarily a verb (and an interjection used by “valley girls”). You could have likes and dislikes in the sense of preferences, but you couldn’t give someone a like, claim to own a like or assert legal rights in likes. Today, however, a company’s social media pages and profiles, and the associated likes, followers and connections, are often considered valuable business assets. Courts have come to various conclusions regarding whether likes and similar social media constructs constitute property, but one thing is clear: Every company that uses social media should have in place clear policies regarding employee social media use and ownership of business related social media accounts. Please see full Newsletter below for more information.more

Reducing Your Company’s Exposure to Trade Secret Litigation when Key Employees Come and Go

THE NIGHTMARE SCENARIO - Within the span of two weeks, Mr. Smith and Mr. Wilson, two top managers from your $2 billion corporation, resign. Both managers had complete, unfettered access to your corporation’s trade secrets and confidential information, including pricing and staffing formulas, clients’ requests for proposals, and bid information. One month earlier, Mr. Smith and Mr. Wilson incorporated a competitor company with a covert business partner. In the time leading up to their resignations, the managers purchased new cell phones and set up new email addresses in the competitor business’s name, and used hard drives and flash drives to extract documents from your corporation’s computers. Up until the time they resigned, Mr. Smith and Mr. Wilson sent emails from your corporation’s servers to their covert business partner that contained confidential information about your key clients. Please see full White Paper below for more information.more

Back to School: A Primer on Cross-Border Discovery Issues

In September, the Sedona Conference released its latest publication on e-discovery matters, Practical In-House Approaches for Cross-Border Discovery & Data Protection, for public comment. The publication addresses a number of hot-button issues for corporate counsel engaged in cross-border litigation, including varying international laws governing data privacy and protection and the differing ideas of disclosure and discovery. In doing so, it illustrates principles and practical guidance for handling cross-border matters with hypotheticals.more

Court Orders New Search Parameters for Document Preservation (Louisiana)

New Orleans Reg'l Physician Hosp. Org., Inc. v. United States, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015) - In this breach of contract case, the plaintiff alleged that the defendant refused to provide promised reimbursements due to contract modifications and directives that were unilaterally taken without the plaintiff’s agreement.more

When E-Filing Goes Wrong: How to Protect Your Trade Secrets in the Event of Inadvertent Online Disclosure

It is frightening to think that valuable corporate trade secrets could be lost with the click of a mouse. But as electronic court filing becomes increasingly prevalent, the risk of inadvertent disclosure of sensitive information online—and the resulting loss of trade secret protection—is becoming more and more real.more

Looking Back on 2014: The 7 Most Important eDiscovery Cases in Delaware - Part 3

Herbert Chen and Derek Sheeler v. Robert Howard-Anderson, Steven Krausz, Robert Abbott, Robert Bylin, Thomas Pardun, Brian Strom, Albert Moyer, Jeanne Seeley, and Occam Networks, Inc., C.A. No. 5878–VCL, Oral Argument on Plaintiffs' Motion to Compel Production of Documents by Defendants and Jefferies and for Sanctions Against Defendants and the Court's Rulings, September 4, 2014.more

Client Alert: Sex, Money and Cybersecurity - Reminders for Public Companies

Recent events have highlighted the importance of comprehensive cyber-security programs for publicly-traded companies. Although the circumstances differ, in each case the impact of employee behavior with electronic communications - and the need to shape, inform, and monitor that behavior - is clear. Further, both cases provide reminders of the particular risks public companies face with respect to their cybersecurity and the particular responsibilities of such companies. Please see full Alert below for more information.more

Pardon the “Intrusion” – Cybersecurity Worries Scuttle Wassenaar Changes

Companies concerned about their cybersecurity posture can breathe a small sigh of relief, as the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) recently announced it was scrapping plans to implement new export controls for cybersecurity products. Many observers and businesses felt the proposal would do more harm than good.more

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