Electronically Stored Information

News & Analysis as of

Zapproved’s Brad Harris on Fundamentals of a Good Evidentiary Preservation Plan

The duty to preserve evidence is well established; litigants must take reasonable steps to ensure information is not deleted or altered once the duty arises. The duty to preserve applies equally to both plaintiff and...more

Discovery Obligations – Identification

This is the second blog in our series regarding the obligations to preserve, identify and collect all relevant and material records in litigation or during an investigation. Earlier this year we wrote about the importance of...more

Have More TAR with Your Tea and Crumpets, Please

In February, we wrote about Pyrrho Investments Ltd. v. MWB Property Ltd., a case before the High Court of Justice—Chancery Division, in which the parties had agreed to use technology-assisted review (TAR) as their document...more

I’ve Made a Huge Mistake: Intentional Destruction of ESI is No Illusion

In season three of the series Arrested Development, episode 11 finds George Bluth, Sr. unsurprisingly using a giant electromagnet in an attempt to delete electronic computer files, which could potentially indict him for...more

E-Discovery — Are custodial collections none of your business?

The party receiving discovery requests in litigation has the job of trying to understand the locations of potentially responsive data and documents; determining the identity of key custodians; and determining the most...more

Value Insights: Delivering Value in Labor and Employment Law survey

Proskauer's Labor and Employment Law Department released its Value Insights: Delivering Value in Labor and Employment Law survey, a resource that illuminates current practices and future trends in managing labor and...more

Ignorance Not Bliss When Destroying Digital Evidence (New York)

NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 (2d Cir. Apr. 25, 2016) - In this employment law case (commonly known as “deflategate”), the plaintiff moved for the upholding of an arbitration decision. One of...more

Amendment to Federal Criminal Procedural Rule Could Impact Trade Secret Cases

Much attention, including here at Trade Secrets Watch, has been focused in recent weeks on the Defend Trade Secret Act (“DTSA”), which overwhelmingly passed both houses of Congress in April and was signed into law by...more

Electronic Data Too Difficult to Assemble? Too Bad. (Missouri)

Labrier v. State Farm Fire & Cas. Co., 2016 U.S. Dist. LEXIS 61246 (W.D. Mo. May 9, 2016) In this insurance law case, the defendant asked the court to vacate a Special Master’s discovery order. The plaintiff brought this...more

Come Back With a Warrant: Proposed Rule Change Expands the Government’s Ability to Access Electronically Stored Information in...

On April 28, 2016 the United States Supreme Court proposed a modification to Federal Rule of Criminal Procedure 41 that significantly alters the manner in which the government can obtain search warrants to access computer...more

The Taskatron: It Slices and Dices, but will it Optimize Your Legal Process?

We all know what a time saver technology can be. But sometimes, the very thing that's supposed to make our lives easier ends up creating more work than the original task at hand. Often times, Project Management tools can feel...more

You Can’t Delete and You Can’t “Hide” (New York)

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016) - In this Fair Housing Act case, the defendants motioned for sanctions against the plaintiff for deleting Facebook posts. The plaintiff argued that the posts...more

The Butterfly Effect: eDiscovery in Government Investigations and Why Small Tweaks May Have Great Impacts

In the context of civil litigation, the rules governing eDiscovery may not be crystal clear (especially in light of the recent amendments to the Federal Rules), but at least there is ample guidance available. Counsel can...more

Court Holds High Bar for Imposing Sanctions under Rule 37(e) (Texas)

Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) - In this case regarding a non-compete agreement, plaintiffs motioned for sanctions against one of the defendants for deleting emails which they...more

Litigants Need to Prove Existence of Missing Data for FRCP 37(e) Sanctions California

FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016) - In this contract law case, the plaintiff moved for sanctions against the defendant for failing to produce emails related to the litigation. Namely,...more

E-Discovery Update: Proportionality for Lawyers

Proportionality is not limited to Einstein’s equations and banter on The Big Bang Theory. The December 2015 amendments to the Federal Rules of Civil Procedure moved proportionality from Rule 26(b)(2)(C)(iii), which required a...more

When the Jet has been Traded for a Bus: Top 5 Biggest Challenges in Managing E-Discovery Activities

In the 1989 movie, Major League, the rag tag (fictionalized) Cleveland Indians are set up to fail by their owner, who wants to lower attendance so she can move the team to Florida. When the losses aren't piling up fast...more

Sanctions Under FED. R. CIV. P. 37(E)

In December 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of the amended rules, Rule 37(e), was completely rewritten in an attempt to develop a uniform, national standard for the imposition...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

Discovery Dispute Regarding Key Word Searches Is Granted In Part And Denied In Part

Plaintiff requests that defendant search its database for documents containing the following terms: charge sharing, power race, contention, and short circuits and their synonyms. Plaintiff justifies this discovery on the...more

U.S. Supreme Court Proposes Change to Rules Applicable to Searches of Electronic Data

The United States Supreme Court — which establishes rules of civil and criminal procedure, subject to the objection of Congress — has proposed a significant amendment to the rules applicable to searches of electronic data...more

How to Get Your Law Firm’s Feet Wet with Technology-Assisted Review

Your client wants to start using technology assisted review (TAR) on a new case… fantastic! So now what? There’s been a lot of discussion since the seminal 2012 Da Silva Moore v. Publicis Groupe SA case regarding...more

Litigation Holds and Spoliation Issues

When the need arises, a litigation hold should be implemented quickly and effectively to avoid the inadvertent destruction or overwriting of potentially responsive data. The time to implement a litigation hold may be when it...more

Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware

2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as...more

In Case You Missed It: Launch Links - April 2016 #4

Some interesting links we found across the web this week: - House of Representatives approves bill requiring warrants for email searches - It was a productive week on the Hill, as the House passed the Email...more

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