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Jeane A. Thomas is chair of the firm's E-Discovery & Information Management Group and a partner in Crowell & Moring's Antitrust Group.

In her role with the E-Discovery practice, Ms. Thomas has managed many types of E-Discovery matters in both government investigations and civil litigation. She regularly counsels clients on Information Governance, including the development and application of effective information management policies, legal hold practices, and E-Discovery response plans. Ms. Thomas is a participating member of The Sedona Conference Working Group 1 on Electronic Document Retention and Production and a member of the Steering Committee for Working Group 6 on International Electronic Information Management, Discovery and Disclosure. She is also a member of the Advisory Board and Faculty of the Georgetown University Law Center Advanced Institute for E-Discovery. She regularly speaks and writes on U.S. and transnational E-Discovery issues, and is a certified Information Privacy Professional, with a focus on European regulation (CIPP/E).

Certain European Union (EU) Member States’ data protection authorities (DPAs) have already started to announce investigations and or “prudential measures” for data transfers solely relying on the invalidated “U.S.-EU Safe Harbor Framework” (Safe Harbor).

In the aftermath of the announcement of the “EU-U.S. Privacy Shield” (Privacy Shield), the Article 29 Working Party (WP29), comprised of all EU Member State DPAs, announced an extension of the “grace period” for U.S. data transfers based on alternative transfer mechanisms (e.g., EU standard contractual clauses and Binding Corporate Rules) other than Safe Harbor, at least until the Privacy Shield has been reviewed by WP29 (likely by the end of March 2016).


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After early concerns about the defending the results of the technology and whether courts would accept its use, Technology Assisted Review (“TAR”) has now entered the spotlight as an alternative to more traditional forms of document review. These technologies, commonly referred to as predictive coding, continue to win over both clients and counsel, who have

Information Governance” has become a popular buzzword in the data law and management space, and it means much more than electronic records management on steroids. It encompasses data security, privacy, information management and e-discovery, and particularly the intersection and synergy of these functions to form an integrated and coordinated approach to managing an organization’s data

We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the report highlights key cases and issues to watch in 11 areas of data law, including: information governance, cybersecurity, social media, technology-assisted review, criminal law, regulatory, cooperation, privacy, cross border transfers, bring your own device (BYOD), and privilege.
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Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated by Rule 1 of the Federal Rules of Civil Procedure,” the Court’s Bench-Bar Committee approved recommendations made by various working groups of its Rule 1 Task Force. That task force project included a working group dedicated to e-discovery, and the result is that the Court’s ESI Guidelines have been revamped to incorporate the growing volume of e-discovery case law and guidance published in recent years.

Now twelve pages instead of its original five, the revised Guidelines include various notable updates. For example, the Guidelines now address the use of technology-assisted review (TAR), they reference the Sedona Conference Cooperation Proclamation, and they instruct counsel about the availability of Federal Rule of Evidence 502(d) to protect against waivers of privilege. The new ESI Guidelines undoubtedly place the U.S. District Court for the District of Kansas as one of the leading federal courts in the area of civil litigation e-discovery.
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It can be difficult to identify the point at which the duty to preserve relevant information for litigation is triggered. What is often more difficult, however, is defining the scope of what must be preserved after the duty has been triggered. Given the vast (and growing) volume of electronically stored information (ESI) typically maintained, organizations must have information governance policies and practices in place that routinely destroy ESI that is no longer needed for business purposes. Those policies and practices must be suspended with respect to ESI that is subject to a legal duty to preserve, but defining the scope of what must be retained can be challenging, particularly at the early stages when litigation is reasonably anticipated or a complaint has just been filed, which is when these decisions are made.
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More than seven months after the International Trade Commission proposed changes to its procedural rules relating to e-discovery “in order to increase the efficiency of its section 337 investigations” and “to address concerns that have arisen about the scope of discovery in Commission proceedings,” on May 21, 2013 the Commission issued final rules adopting the proposed amendments with some revisions. The new rules are applicable to investigations instituted after June 20, 2013. Section 337 investigations are administrative proceedings before the ITC, authorized under 19 U.S.C § 1337, to determine whether there has been unfair competition—typically patent infringement—in the importation of articles into the U.S. The only remedy is injunctive relief, typically an order excluding the articles from entry into the U.S. The amended rules are intended “to reduce expensive, inefficient, unjustified, or unnecessary discovery practices in” Section 337 proceedings.
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We all know that discovery is never perfect, particularly when it involves the collection, review and production of large volumes of electronically stored information. But when is discovery good enough? And what standards should govern when one party challenges another party’s production as deficient?

These are extremely difficult issues for courts to resolve and, not surprising, courts have not been entirely uniform in their approach. However, that’s only the first step because when a court finds that discovery has been so deficient that sanctions are warranted, it must then determine what sanctions to impose and whether to impose them on the party, inside counsel, outside counsel, or some combination thereof.
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With the increased importance of e-discovery in litigation and investigations, many federal district courts and government agencies have enacted specific rules, forms, or other guidance addressing the discovery of electronically stored information (ESI) and governing the conduct of practitioners as it relates to ESI. To help you keep informed of these rules, regulations, and guidelines

2012 was a milestone year for Technology-Assisted Review (TAR), featuring the first judicial opinions expressly supporting its use by producing parties in litigation. Naturally, there has been a lot of excitement among vendors and e-discovery lawyers. But, despite these historic decisions, there remains little case law addressing how a producing party can use TAR and meet its discovery obligations. The technologies are just starting to be better understood by lawyers and courts (as this author has previously written). As a result, there is a dearth of guidance on best practices in this nascent legal arena.

Not surprisingly, the first few cases addressing TAR have cautiously embraced its use. These decisions collectively promote a high level of cooperation and transparency, including the involvement of opposing counsel in training the system and the sharing of the set of documents used to train the system (referred to as the seed set). The concern among some TAR advocates is that these practices exceed what is required under the Federal Rules of Civil Procedure and that, if these levels of transparency come to represent the minimum legal threshold of cooperation for using TAR, producing parties will be dissuaded from using TAR as a result of the added costs and litigation risks.
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