Coverage of products, rulings impacting how discovery is conducted, the application of and abidance with the Federal Rules of Civil Procedure, and business news
By John A. Greenhall, Anthony L. Byler and Kathleen M. Morley | February 5, 2018
Attorneys are bound by developing ethical rules and duties relating to e-discovery. These rules and duties deserve emphasis because courts, and clients, are increasingly concerned about the manner in which attorneys conduct discovery and, particularly, e-discovery.
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By David R. Cohen and Todd R. Fairman | February 5, 2018
Most lawyers know to advise their clients to preserve evidence in their “care, custody or control” relevant to pending or threatened litigation. But exactly how far does “control” go? Can a party be sanctioned for spoliation for failing to issue a legal hold notice to a third party who has no obligation to follow your legal hold instructions?
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By Christopher Boehning and Daniel J. Toal | February 5, 2018
In their Federal E-Discovery column, Christopher Boehning and Daniel J. Toal discuss 'Winfield v. City of New York', a decision which adds to the growing body of law that as long as a producing party's use of technology-assisted review tools, including predictive coding, is reasonable and proportional in the context of a matter, the mechanics of such efforts should not be open to scrutiny by an opposing party.
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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.
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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.
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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.
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By Angela Turturro | February 4, 2018
In this Special Report: "Unrung Bells and the Quick-Peek Order," "Three Strategic Choices in E-Discovery," "Regulator Preservation Notices—Can You Narrow the Scope?," "Beyond Document Review: Meeting Other Big Data Challenges" and "Getting It Right the First Time: Avoid the Dreaded Privilege Log 'Re-Review.'"
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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.
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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.
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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?
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