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Duty to Preserve Young Lawyers

The E-Discovery Digest - March 2018

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

Courts Are Closely Following Amended Rule 37(e)’s Limits on Sanctions for Lost Electronically Stored Information

by Jones Day on

Within two years of its implementation, several cases show that amended Rule 37(e) is having its intended impact, as judges are carefully applying the criteria articulated in the Rule prior to ordering curative measures or...more

Text Messages: Preservation Lessons for Mobile E-Discovery

There was a time when the only data you needed to collect in response to a discovery request was corporate email. Even if you received or sent work emails from your phone, this data would be located on a corporate server and...more

4 Things the Top E-Discovery Cases of 2017 Can Teach You

by Exterro, Inc. on

Two years on from the last round of FRCP amendments, the courts are still clarifying how these e-discovery rules will be interpreted. One lens through which we can better understand how the court is interpreting the...more

Practical Tips For An Effective Litigation Hold Notice

by Farrell Fritz, P.C. on

I recently wrote about the importance of styling one’s litigation hold in a broad, but sufficiently specific way. Some of you may be thinking, well, that’s all fine and good but what is a litigation hold? Why and when do I...more

The Challenge of Releasing Legal Holds and Disposing of ESI

by Exterro, Inc. on

On paper, releasing a legal hold seems fairly straightforward. A matter reaches a resolution, preservation obligations are lifted, the legal team informs custodians and data stewards that they are no longer required to retain...more

Why Courts Should Not Go 'Over and Above' the Federal Rules to Impose Sanctions for Loss of ESI

by Pepper Hamilton LLP on

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

If the Scope of Discovery Changed and No One Paid Attention, Did the Scope of Discovery Change?

by BakerHostetler on

The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as...more

Critical Road Map for ESI in Litigation

by Farrell Fritz, P.C. on

It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation....more

Electronic Discovery Preparedness Checklist

by Baker Donelson on

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

Federal Court Provides a $3 Million Reason to Comply with Duty to Preserve ESI

by Foley & Lardner LLP on

After years of decisions, the issues surrounding the preservation of electronically stored information (ESI) seem almost old hat. It is well known that, upon notice of a claim or commencement of litigation, a party needs to...more

E-Discovery Update: Does Authority Always Win?

by McGuireWoods LLP on

John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now...more

E-discovery and the Duty to Preserve

If you’re involved in a suit in federal court, then the Federal Rules of Civil Procedure apply to you. Rule 26(b) provides, among other things, that parties may obtain discovery regarding any non-privileged matter that is...more

Yes, Counselor, You Argued That Below, But No, It Is Not Preserved

by Carlton Fields on

Don’t assume that just because your argument is clearly reflected somewhere in the record that it is preserved for appeal. Often for purposes of preservation, the procedural context for the argument is just as important as...more

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

by Zapproved LLC on

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

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

by Morris James LLP on

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

Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

by Pepper Hamilton LLP on

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

Federal Court Offers Clues in How the Newly Amended Rule 37(e) Will Be Applied When Electronically Stored Information Is Not...

Among the most significant changes to the Federal Rules of Civil Procedure that went into effect in December 2015 were amendments to Rule 37(e), which defines spoliation in the context of electronically stored information...more

E-Discovery Update: Changes to Rule 37’s Failure-to-Preserve-ESI Sanctions Impact Recent Rulings

by McGuireWoods LLP on

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

Don’t Forget That Litigation Hold!

by Foley & Lardner LLP on

When it comes to producing documents in employment litigation, the deck is usually stacked in favor of the employee. Except in those unusual circumstances when the employee is squirreling away documents in an effort to build...more

Steps Companies May Take to Comply with Revised Document Retention Requirements

by White & Case LLP on

Federal Rule of Civil Procedure 37(e) sets forth the requirements for the retention of electronically stored information ("ESI") and the corresponding sanctions available to remedy the loss of ESI. New amendments to Rule...more

Amendments to Federal Civil Rules Governing Discovery and Preservation of ESI Set to Take Effect December 1, 2015

by Moore & Van Allen PLLC on

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

The 2015 Amendments to the Federal Rules of Civil Procedure: Changing the Way Civil Litigants Operate in Federal Court

by Davis Wright Tremaine LLP on

On April 29, 2015, the United States Supreme Court adopted the package of proposed amendments to the Federal Rules of Civil Procedure (“FRCP”) that had been approved by the Civil Rules Advisory Committee (the “Committee”)....more

Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation

by BakerHostetler on

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

Corporate Lawyers vs Federal Judges: Two Perspectives on Litigation Spending and E-Discovery Trends

by Exterro, Inc. on

When we released our Federal Judges Survey on E-Discovery Best Practices & Trends in February we weren’t quite sure what kind of response to expect. We knew the data was insightful (especially the judges’ view on the general...more

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