Record Preservation

News & Analysis as of

Third Circuit Holds That Arguments Incorporated by Reference to Lower Court Briefs Are Waived

Last week the Third Circuit Court of Appeals reiterated its disapproval of cursory arguments made in a footnote, while joining other Circuits that have held that making arguments solely by reference to trial court briefs is...more

This is a Non-Political Post: eDiscovery Trends

At the outset, I feel that I should state that, given that this post is about the Hilary Clinton emails and the FBI handling of them. In his latest post (E-Discovery Lessons from the Huma Abedin E-Mails), Craig Ball...more

E-Discovery Nightmares: 5 Experts Share Tales of Redactions, Huge Data Sets, and Things That Go Bump in the Night

Now that the days are growing short, and the summer sun gone, leaving us with overcast skies and wind driven mists clinging to the rain-soaked hills, the mood is set for telling stories of ghouls, goblins, and other specters...more

You Don’t Have to Move Your Data to Manage it Effectively: Information Governance Trends

When it comes to effective records management of your organization’s data, many people think that the data has to be moved to a centralized location, such as a server or other file share, to be managed effectively. But, you...more

Electronic Discovery Preparedness Audit Handbook

While your organization may not regularly be involved in costly or complicated litigation, there are instances in which it may nonetheless be required to identify, collect, and produce documents most likely in the form of...more

Electronic Discovery Preparedness Checklist

While your organization may not regularly be involved in costly or complicated litigation, there is always the potential for this to arise. Additionally, you may work in an industry that is heavily regulated and subject to...more

What Role Can Appellate Counsel Play Before the Appeal?

In many ways, referring to a lawyer with extensive experience practicing in appellate courts as an “appellate” lawyer is misleading. An appellate lawyer is practiced generally in legal research, writing and analysis and is...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19378 - State v. Francis - SC19411 - State v. Wright - Appellate Court Advance Release Opinions: AC35949 - State v. Porter - AC36656 - State v. Gonzalez - AC36971...more

Court Awards $3M Sanction and Adverse Inference for Spoliation in Antitrust Case

On July 6, 2016, Judge Leonard P. Stark, of the federal district court in Delaware, ordered a $3 million punitive monetary sanction, and an adverse inference jury instruction, against antitrust defendant Plantronics after...more

Top 10 Mistakes Florida Commercial Real Estate and Leasing Brokers Make

A good deal of our practice involves litigation over busted deals – sales of real estate, sales of businesses, commercial leases. By the time we’re asked to get involved, the deal is usually already dead, with the parties...more

Wave of the Future: Or, How I Learned to Streamline the E-Discovery Process from Howard Hughes

In 1935, Howard Hughes built and flew his revolutionary H-1 Racer. At that time, most of the United States’ military aircraft (such as the Curtiss P-6 Hawk) still used the same designs from the previous decade: biplanes with...more

Running Into A Brick Wall Who Wears A Black Robe: Tips For Trying A Case Before A Hostile Judge

For trial lawyers, hostile adversaries are par for the course. But judges are supposed to be irreproachably impartial, right? That is, after all, the very cornerstone of our judicial system. So when you find yourself trying...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

Continuing Data Security Lessons from the SEC

In September, we reported that the Securities and Exchange Commission (SEC) settled charges against a registered investment adviser for a violation of Rule 30(a) of Regulation S-P (17 C.F.R. 248.30(a))(“Safeguards Rule”) for...more

AlphaGo – History Captured by Live Event Subtitling

Traditionally, shorthand has been most widely used in the legal and political arenas, but did you know that stenographers also preserve the record at corporate, showbiz and entertainment events? Through the use of realtime...more

Be Safe, Get Your Standing Evidence in Early

A Land Use Practitioner representing opposition intervenors in a quasi-judicial land use matter is best served to present any evidence of special damages during the quasi-judicial hearing in order to preserve standing for...more

[Webinar] Working with IT / Legal Effectively - April 27th, 1:00pm ET / 10:00am PT

IT says tomato, Legal says tomahto. Legal reads Latin, IT writes Javascript. Whatever analogy you want to use, Legal and IT speak different languages that often presents challenges communicating and working effectively...more

Guide to ESI Preservation Responsibilities 2016

Abstract - A guide for clients, lawyers, information technology staff and others interested in the litigation-related obligation to preserve electronically stored information (ESI) in United States litigation. The...more

10 Essentials for a Well-Drafted Litigation Hold Notice

This post is the second in a our Legal Hold Practical Advice Series. You just learned that your company was (or probably will be) sued. How should you go about informing key employees to preserve evidence?...more

Discovery Obligations – Preservation

The existence of litigation or an administrative investigation creates unique obligations for a party with respect to its documents, both paper and electronic. The term “document” includes virtually any form of recorded...more

Legal professional privilege: 10 tips

Think before creating emails (or any documents) on sensitive issues. Ask yourself whether you need to copy everyone? Should you be pressing forward? Pick up the phone in a crisis instead – and call the legal team....more

A Step by Step Guide To Maximizing The Use of Social Media In Defending Product Liability Claims

As most people are aware, social media has become pervasive in the daily lives of the vast majority of Americans. Social media provides us with an instantaneous way to share our thoughts and experiences with others. ...more

Conclusion: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Are you...

The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules...more

Proposed Changes to Federal Rules of Civil Procedure for ESI

With the widespread use of electronic communication methods, discovery is often the most onerous, time-consuming and costly aspects of litigation. Case law has established that a party has a duty to preserve information when...more

PCI Security Standards Council Publishes Data Breach Response Guidance

The PCI Security Standards Council (PCI-SSC) has released new guidance on its website advising merchants how to deal with a data breach. The guidance particularly details when a PCI Forensic Investigator (PFI) will be...more

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