Christopher Boehning

August 25, 2009 | New York Law Journal

H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison, review two recent cases that make it clearer than ever that parties who shirk their obligations to preserve and produce ESI do so at great peril. In one, the court precluded the wrongdoers from asserting their affirmative defense during the remainder of the case and went on to grant summary judgment for plaintiffs on all claims. In the other case, still ongoing, the judge held that default judgment was not warranted but concluded it would "fairly compensate" plaintiff to grant an adverse-inference instruction to the jury concerning the spoliated evidence, a serious blow to the prospects of the defendant.

By H. Christopher Boehning and Daniel J. Toal

9 minute read

April 28, 2009 | New York Law Journal

H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write: Evidently weary of deficient keyword searches, U.S. Magistrate Judge Andrew J. Peck recently issued a self-styled "wake-up call" to members of the bar in the Southern District. Instead of attorneys designing keywords without adequate information "by the seat of their pants," Magistrate Judge Peck appealed for keyword formulations based on careful thought, quality control, testing and cooperation.

By H. Christopher Boehning and Daniel J. Toal

11 minute read

June 26, 2007 | Law.com

Now that the Federal Rules of Civil Procedure have been modified to acknowledge explicitly the role electronic information plays in contemporary legal disputes, the uneasy process of adapting rules written in the era of typewriters and mimeographs to a world of e-mail and metadata has been replaced by a new task: determining how the recent amendments have -- and have not -- altered the existing legal landscape concerning electronic discovery.

By H. Christopher Boehning and Daniel J. Toal

14 minute read

June 28, 2006 | Law.com

Because it's sometimes unclear to companies when the duty to preserve electronic data will arise, its deletion poses a real risk. A proposed amendment to Federal Rule of Civil Procedure 37(f) is intended to provide a safe harbor for firms that, through automatic document-deletion systems, unwittingly trash data that should be preserved in case of litigation. Attorneys John F. Baughman and H. Christopher Boehning consider how safe the safe harbor really is.

By John F. Baughman and H. Christopher Boehning

9 minute read

March 03, 2006 | Corporate Counsel

In electronic discovery there are no real shortcuts, but one common practice is to enter into "non-waiver agreements," which permit a producing party to maintain attorney-client privilege or work product protection over documents inadvertently produced during the discovery process. This practice has even found its way into proposed amendments to the Federal Rules of Civil Procedure that aim to reduce costs associated with preproduction privilege review. But are non-waiver agreements effective?

By John F. Baughman and H. Christopher Boehning

8 minute read

June 17, 2008 | New York Law Journal

H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write that In Victor Stanley, Magistrate Judge Paul Grimm offers some guidance to litigants faced with the unnerving high-wire act of performing a thorough electronic privilege search within the time constraints set by the court while also trying to keep expenses under control.

By H. Christopher Boehning and Daniel J. Toal

12 minute read

August 26, 2008 | New York Law Journal

H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write that over the last decade, courts have continually re-examined the extent to which employees have a reasonable expectation of privacy when using office equipment for personal reasons. The recent decision in Quon v. Arch Wireless Operating Co. Inc., where the Ninth Circuit considered whether a public employee may prevent his employer from reading text messages sent from an office pager but stored on an independent service provider's computer network, demonstrates the fragility of judicial consensus on this subject.

By H. Christopher Boehning and Daniel J. Toal

12 minute read

June 27, 2006 | New York Law Journal

John F. Baughman and H. Christopher Boehning, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write that deletion of electronic data is a significant risk for companies, potentially leading to spoliation claims. It is often unclear when the duty to preserve arises and it can be difficult for a company to determine when litigation becomes reasonably foreseeable.

By John F. Baughman and H. Christopher Boehning

9 minute read

June 28, 2007 | Legaltech News

The Federal Rules of Civil Procedure have been modified to acknowledge explicitly the role electronic information plays in contemporary legal disputes. Attorneys H. Christopher Boehning and Daniel Toal assess how the recent amendments have altered the existing legal landscape concerning electronic discovery.

By H. Christopher Boehning and Daniel J. Toal

14 minute read

December 08, 2010 | Legaltech News

The sanctions analysis prescribed by Judge Scheindlin in Pension Committee asked if a party's conduct in defiance or disregard of document preservation expectations is per se sanctionable. A recent decision by Magistrate Judge James C. Francis of the Southern District of New York answers no.

By H. Christopher Boehning and Daniel J. Toal

14 minute read