Discovery

  • The Legal Intelligencer

    European Union Discovery Presents Compliance Headaches for US Litigants

    By Philip N. Yannella | February 5, 2018

    Discovery of personal data held in the European Union (EU) has been an issue that has bedeviled U.S. litigants for some time. On the one hand, the U.S. Supreme Court has held that discovery of foreign documents is not barred by foreign privacy law.

  • The Legal Intelligencer | Commentary

    Beware: Texts and Wearable Data Must Be Preserved, Too

    By Joseph Francoeur, Michelle Vizzi and Sade A. Forte | February 5, 2018

    Attorneys need to be aware of technological advances in terms of preservation of evidence and new avenues for seeking relevant evidence. Spoliation sanctions, including adverse jury instructions, have been issued for the failure to preserve text messages. In addition, data from wearable technology, such as the Apple Watch and the Fitbit, can become relevant and material, while also raising concerns about consumer privacy rights.

  • The Legal Intelligencer | Commentary

    Possession, Custody or Control: A Perennial Question Gets More Complicated

    By Tess Blair and Tara Lawler | February 5, 2018

    The perennial question of “possession, custody or control” may become more complicated in light of the U.S. Supreme Court recently granting certiorari in the landmark case of In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft. Companies will need to watch for this decision and its potential impact on discovery and information governance when data crosses borders.

  • New York Law Journal | Update

    Facing Criticism, Cuomo's Office Looks to Marshal Support for Criminal Justice Proposals

    By Colby Hamilton | February 2, 2018

    In a letter reviewed by the New York Law Journal, organizations are asked to sign on as supporters of the criminal justice reforms announced during Cuomo's State of the State speech.

  • New York Law Journal

    Unrung Bells and the Quick-Peek Order  

    By Thomas G. Rohback and Brooke Oppenheimer | February 2, 2018

    Grappling with the delays and discovery motions, courts have fashioned more creative discovery processes. One such mechanism is the “quick-peek” agreement. Viewed as a mechanism for parties to exchange data quickly without the fear of waiving privilege or its subject matter, courts started to consider the mandatory use of the quick-peek to streamline discovery in 2014.

  • New York Law Journal

    Three Strategic Choices in E-Discovery

    By Christine Payne and Michelle Six | February 2, 2018

    Electronic discovery gets a bad rap. Most lawyers find it unappetizing, high risk, and unglamorous. This perspective, however, overlooks a key litigation opportunity: developing e-discovery strategy hand in hand with trial strategy. It's the best approach for achieving solid results for your clients.

  • New York Law Journal

    Regulator Preservation Notices—Can You Narrow the Scope?

    By Robert Lindholm and Lucie Cohen | February 2, 2018

    A federal or state regulator, such as the SEC or a state attorney general, sends a company a preservation notice stating that it believes the company may possess “documents” relevant to an ongoing investigation and requests that the company “reasonably” preserve such evidence until further notice. How should the company respond?

  • New York Law Journal

    Beyond Document Review: Meeting Other Big Data Challenges

    By Bruce Hedin and Michael Morneault | February 2, 2018

    Years after Judge Andrew Peck declared it to be “black letter law” in 'Rio Tinto', technology-assisted review has finally entered the mainstream among a growing suite of technology-driven e-discovery tools. It is taking a bit longer, however, for practitioners to fully recognize that document review over large data populations is an information retrieval task.

  • New York Law Journal

    Getting It Right the First Time: Avoid the Dreaded Privilege Log 'Re-Review'

    By Marc R. Shapiro and Kelly M. Cullen | February 2, 2018

    Privilege logs are loathed by the attorneys who create them, the judges who review them, and the clients who pay for them. And the only thing worse than creating a privilege log is re-creating a privilege log. While we can't promise a pain-free process, an organized approach upfront will help avoid this judicially-mandated infliction of pain.

  • The Legal Intelligencer | News

    Justices to Eye Discoverability of Emails Between Hospital Counsel and PR Firm

    By Max Mitchell | February 1, 2018

    The high court specifically agreed to hear arguments about whether sending prelitigation emails to public relations consultants waives the work-product doctrine, and whether a third party must provide legal advice, or be acting under the control of an attorney or the client, to qualify as a privileged person.

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