News & Analysis as of

Whistleblower Can’t Use Discovery Info to Satisfy Rule 9(b)

Rule 9(b) requires a whistleblower alleging fraud to “state with particularity the circumstances constituting fraud.” Tom Bingham provided the particularity, but his case was nevertheless dismissed because of the way he came...more

A Framework for Discovery Automation: eDiscovery Trends

Automation has been a recurring theme this year on this blog. At the beginning of the year, I declared that the age of eDiscovery automation is upon us. I’ve also spoken about discovery automation on numerous occasions,...more

Your Stipulated Protective Order May Not Provide As Much Protection As You Expect

In a growing number of courts, a negotiated protective order entered for discovery purposes will not protect litigants’ confidential information from public disclosure. Stipulated protective orders are commonly used...more

The SEC Has Data Fever, and the Only Prescription Is More Data (Analytics)

Companies are increasingly investing in enterprise governance, risk, and compliance (eGRC), largely in response to an uptick in regulatory action and enforcement. Between the enactment of laws such as the Dodd-Frank Wall...more

Before Asking for Sanctions, Check the Recycle Bin

Erhart v. BofI Holding, Inc., No. 15-cv-02287-BAS (NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016). The court denied sanctions against a party where the huge majority of the files he deleted were not actually destroyed,...more

FERC Investigations: Uncertainty Rules as More Entities Challenge in Federal Court: Insights from Nutter’s Matt Connolly

Legal Update - Matt Connolly, a senior associate in Nutter’s Litigation Department, addressed Federal Energy Regulatory Commission (FERC) investigations in Nutter Insights. Matt discussed what triggers a FERC...more

Using ADR to Streamline the Complex Case

Handling complex or “bet the company” litigation in a cost effective and timely manner is often a significant challenge for litigation counsel. These cases frequently have secondary and collateral issues that take on a...more

Court Clarifies that Data Must be Permanently Deleted for Sanctions (California)

Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS 129906 (S.D. Cal. Sept. 21, 2016) - In this whistleblower retaliation case, the defendant moved the court to impose sanctions on the plaintiff for deleting thousands of...more

USPTO Publishes Amendments to Trademark Rules of Practice

On October 7, 2016, the U.S. Patent and Trademark Office (“USPTO”) published a Federal Register Notice of Final Rulemaking amending the Trademark Rules of Practice that govern practice before the Trademark Trial and Appeal...more

Court Issues a Cornucopia of Sanctions for Discovery Violations (New York)

Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016) - In this case, the plaintiff motioned the court to grant sanctions for the defendants’ discovery...more

How to Find a Quantum of Solace With Multi-Language eDiscovery

“Where there’s smoke, there’s fire.” These words, spoken by James Bond in From Russia With Love, encapsulate the fears many have in the wake of the UK’s historic vote to Brexit the EU. Amid continued warnings about markets...more

New TTAB Rules Coming in January 2017

The USPTO has amended the rules for TTAB proceedings. A Notice of Final Rulemaking was published in the Federal Register on October 7, 2016. The effective date of the amended rules is January 14, 2017. ...more

“Can I Throw Out Those Dust Covered Files?” Defensibility, Efficiency, and the Comprehensive Guide to E-Discovery Preservation

When I was in high school, I worked for a family-owned office supply store, one of the last of the local businesses left on main street in the small Midwestern town where I lived. It was a frustrating job most of the time...more

How to Avoid Getting "Burned" by Redactions: eDiscovery Best Practices

Having addressed this issue with a client recently, it seems appropriate to revisit this topic… On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or...more

"The E-Discovery Digest - October 2016"

The fifth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney client privilege and work-product doctrine, spoliation, and discovery responses. Please see...more

IVC Filter Litigation – Judge says no to Protective Order

Plaintiffs in a Multi District Litigation (“MDL”) filed complaints against Cook Medical Inc. (“Cook”) and alleges that Cook knowingly presented false information regarding the safety profile of its IVC filters to physician...more

Now You See It; Now You Don't: A Sixth Circuit Decision Regarding Reinsurance Agreements

Last week, a court in the Sixth Circuit helped to clarify its position on the discoverability of communications and agreements regarding reinsurance. In doing so, it held that reinsurance agreements themselves are...more

Court Orders Party to Attempt On-Site Data Collection (New York)

Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016) - In this RICO case, the defendants filed a motion to compel, arguing that the plaintiff responded to an ESI request...more

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was...more

Another Champion for Proportionality in Discovery

For the second time within a month, an MDL court has rejected wide-ranging and potentially abusive discovery on the basis that the requests were out of proportion to the needs of the case. This is a welcome development. We...more

Court Discusses What Constitutes Reasonable Steps for Preserving Text Messages (North Carolina)

Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016) In this employment law case, the defendant moved the court to dismiss the case for evidence destruction. The plaintiff accidentally destroyed her...more

Best in Law: Want to Cut Legal Costs? Avoid Litigation

BB&K Partner Lauren Strickroth Provides Litigation Cost-Saving Tips in the Press-Enterprise - The best strategy to minimize the cost of litigation is to avoid it altogether. Many businesses, trustees or individuals...more

[Webinar] Cloud Computing Series – eDiscovery - October 26th, 12:00p.m. CT

As cloud providers grow and more information is being stored in “the cloud,” it is important to consider the risks and benefits when confronted with litigation. This webinar presentation will examine litigation and...more

Mary Mack of ACEDS: eDiscovery Trends

During the recent ILTACON conference (wrap-up post about the conference here), I had an opportunity to speak with several thought leaders that are involved with various educational initiatives in the eDiscovery industry,...more

Play it Again

Over the weekend, I took myself to the Great Frederick Fair to see and hear the incomparable Vince Gill. I had wanted to see him for years, and I was not disappointed! He played all his hits, engaging his audience with his...more

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