DOJ Proposes Workaround to Microsoft Ruling; United States Joins Irish Facebook Case; St. Louis Cardinals Scouting Director Sentenced to 46 Months; EU’s Advocate General Okays National Data Retention Laws; Data Protection Authority of Hamburg Becomes “Completely Independent”; 9th Circuit Suggests Password Sharing is a Federal Crime

DOJ Seeks Legislative Circumvention of 2nd Circuit’s Microsoft Ruling

Late last week, Assistant Attorney General Peter Kadzik sent a letter to Vice President Biden (in his role as presiding officer of the U.S. Senate) asking Congress to amend the Electronic Communications Privacy Act (ECPA) to permit government warrants to reach data stored overseas. This letter was written in response to the Second Circuit’s ruling earlier this month in Microsoft v. U.S., in which the Second Circuit ruled that ECPA’s data seizure provisions did not apply extraterritorially and in which Judge Lynch, in concurrence, called for congressional intervention.  For more information about the Microsoft ruling, please see the Crowell & Moring “Data Law Insights” blog post detailing the court’s decision.

ECPA reform, General Kadzik’s letter argued, will resolve cross-border data access issues for both domestic and foreign governments investigating criminal activity, including terrorism. The proposal seeks to change U.S. law to “authorize law enforcement to obtain electronic data located abroad.” Admonishing the Second Circuit’s decision, General Kadzik noted the “significant public safety implications of the Microsoft decision.”


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The Second Circuit today issued a much-anticipated ruling holding that U.S. firms are not required to turn over user data stored overseas, even in the face of a government warrant.  This decision arose from Microsoft’s December 2014 appeal of a civil contempt ruling against the tech giant for refusing to turn over the personal data

In conjunction with the 2015 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by digital privacy

In just the last few years, most companies – big and small – have embraced the Bring Your Own Device (BYOD) movement at varying levels from allowing employees to access company email on their personal smartphones all the way to not issuing company-owned computers and instead having employees bring in their personal laptops to access

In conjunction with the 2014 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including

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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In a recent article published in Law360, Beware of Conditional Reponses to Discovery, Gregory J. Leighton, Kevin C. May, and Andrew S. Fraker of Neal Gerber & Eisenberg LLP discuss the growing number of cases in which federal judges have scrutinized conditional discovery responses—responses that assert objections but state that documents will be produced “subject to” or “reserving” the objections. Because the use of this type of response is commonplace, and because the potential consequences—including wholesale waiver of objections—suggested by recent decisions could be severe, the issue is worth careful consideration.
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The State Bar of California may soon deem an otherwise highly skilled attorney to be “incompetent” in the practice of law if he or she does not know the basic steps to take with respect to electronic discovery and does nothing to fill that gap in knowledge. On February 28, 2014, California’s State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved a Proposed Formal Interim Opinion for a 90-day public comment distribution, which analyzes a hypothetical fact pattern of an attorney who makes egregious mistakes in e-discovery.
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Document review often is the most expensive component of discovery in large, complex cases. Wouldn’t it be great if you could shift that cost to the party that requested the documents, along with the burden of performing the tedious, time-consuming review? Well, maybe you can. A federal magistrate judge in the N.D. Florida recently did exactly that.

In FDIC v. Brudnicki, No. 5:12-cv-00398, 2013 WL 2948098 (June 14, 2013) , the FDIC, as receiver for a bank, sued eight of the bank’s former directors, including one officer. The defendants moved to compel documents from the FDIC and sought sanctions against the FDIC “for delaying discovery.” Id. at *3. The FDIC had “agreed to produce responsive documents under a proposed protocol.” Id. at *4. The court observed, however: “The parties sharply disagree on the method of production and the ESI protocol.” Id.
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On June 20, 2013, I participated in a one-hour webinar regarding “Bring Your Own Device” (or BYOD) policies. I addressed certain e-discovery issues involving BYOD policies. An audio recording and instructional slides are available here for those who missed it. The webinar was part of a monthly series entitled Third Thursday – Crowell & Moring’s Labor and Employment Update. This series is dedicated to helping our clients stay on top of developing law, emerging compliance issues, and best practices. I had the pleasure of joining my colleagues Tom Gies and Chris Calsyn from our Labor & Employment Group on the roundtable panel.
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