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Social media is increasingly important in eDiscovery, employment investigations and jury research. Using social media in legal and HR matters raises significant ethical issues. Lawyers and other legal professionals should...more
There is often a lot of discussion around the processing and review of documents in a litigation, most likely because these phases end up costing the most money and taking the most time. What is often overlooked, however, is...more
With the proliferation of workplace and personal electronically stored information (“ESI”) these days, it may be a scary proposition for any litigant to deal with the preservation, collection, review, and production of this...more
As the clock ticks down to May 25, 2018, when the European Union’s General Data Protection Regulation (“GDPR”) becomes fully enforceable throughout the EU, the Internet and airwaves have become saturated with guidance for...more
The ninth 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....more
U.S. Customs searches have become increasingly invasive over the years. Pursuant to Department of Homeland Security (DHS) policy, U.S. Customs and Border Protection (CBP) operates under the “broad search exception”, which...more
Electronic discovery cases that made headlines in 2017 featured well-known names such as Taylor Swift and Lynyrd Skynyrd, and reached all the way to the U.S. Supreme Court. As the year draws to a close, it’s a good time to...more
Can deleting information, even personal information, from your work computer land you in prison? That was the central question posed in USA v. Zeng, Case No. 4:16-cr-00172 in the Northern District of California. Mr. Zeng...more
Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)- In this case, the Southern District of New York imposed an adverse inference against defendants for their failure to...more
While courts and the Federal Rules of Evidence take an increasingly pragmatic approach to the question of when inadvertent disclosure of privileged information results in waiver, a recent federal magistrate’s ruling serves as...more
A recent case offers a cautionary tale of how courts may cite to the requirements of amended Federal Rule of Civil Procedure 37(e), which governs imposing sanctions for failure to preserve electronically stored information...more
Another front recently emerged in the legal battle over whether US law enforcement authorities can use a search warrant issued under the Stored Communications Act (SCA) to obtain data stored overseas. Until now, the battle...more
Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic...more
The principles provide a useful framework for the application of proportionality to preservation, as well as practical guidance for negotiating the scope of discovery. The Sedona Conference — a research and educational...more
On December 1, 2016, amended Rule 41 of the Federal Rules of Criminal Procedure (FRCP) went into effect, thus expanding federal law enforcement’s power to search and seize electronic data. The new rule will allow law...more
As explained in Part I and Part II of this series, U.S.-based commercial litigators should be aware that other countries’ privacy laws may affect their cases in unexpected ways. Perhaps the most likely stage for these issues...more
A common issue in almost any case involving the production of electronically stored information (“ESI”) is the format in which the parties will produce the ESI. Typically, ESI may be produced in one of four formats: native...more
Action Item: Companies and individuals involved in litigation that includes e-discovery, should be aware of a decision last week by Magistrate Andrew J. Peck, whose e-discovery decisions are well-regarded in the legal...more
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
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
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
The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases...more
A recent case in the Middle District of Tennessee highlights the scope and limits of spoliation sanctions under amended Rule 37(e). In Benefield v. MStreet Entertainment, LLC, 2016 WL 374568 (M.D. Tenn., Feb. 1, 2016), the...more
For years, companies have battled different sanction standards for the failure to preserve documents. This led to over-preservation, where, to avoid accusations of “negligent” failure, companies preserved every shred of...more
The course of federal civil litigation will take a turn on December 1, 2015, with pending amendments to several rules governing discovery, case management, and the preservation of electronically stored information (“ESI”) set...more