Attorney General Jeff Sessions and EU Justice Commissioner Věra Jourová have met twice over the last two weeks, signaling momentum towards a new EU-U.S. solution for the sharing of electronic evidence. These meetings occurred in the wake of proposed regulations on the sharing of electronic evidence in the EU, and the passage of the Clarifying

Please join Crowell & Moring’s Jodi Daniel and Elliot Golding on January 31, 2017 for an ABA webinar called Evolving HIPAA Issues: Cloud, Mobile Apps, Access, and More

This in-person panel discussion (with simultaneous webinar broadcast) will provide perspectives from the HHS Office for Civil Rights (OCR), the former director of the HHS Office of

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

Last week, in In re Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corp., a federal judge lifted the stay of execution of an order requiring Microsoft to turn over content stored on a Microsoft server located in Ireland.  While this development is largely procedural, we have previously discussed the

A federal judge in the Southern District of New York upheld a magistrate judge’s decision that requires Microsoft to turn over to federal prosecutor customer email content stored in an overseas Microsoft data center. Ruling from the bench, Chief Judge Loretta Preska concluded that Microsoft must comply with a U.S. search warrant for customer emails,

The recent decision in Brown v. Tellermate Holdings, out of the Southern District of Ohio, provides yet another valuable illustration of the critical need for litigation counsel to take reasonable steps to educate themselves about potentially relevant ESI in the possession, custody, or control of their clients and to take appropriate measures to preserve and produce that information. The case highlights, in particular, the pitfalls associated with cloud-based ESI (specifically, a common sales app called saleforce.com) as well as the severe sanctions that can befall those who make significant missteps, as the defendant and its counsel learned in Brown.

United States Magistrate Judge Terence Kemp observed early in his decision: “Discovery did not go smoothly.” The court’s recitation of the procedural history and discovery issues in the case soon reveal this to be a significant understatement. Judge Kemp ultimately sanctioned the defendant and its counsel for failing to preserve and timely produce ESI relevant to the plaintiffs’ age discrimination suit. In addition to awarding attorney’s fees and costs incurred by the plaintiffs in filing and prosecuting various motions, the court prohibited the defendant from introducing or relying on any evidence that it terminated the plaintiffs’ employment for performance-related reasons rather than age. Judge Kemp reasoned that the defendant’s discovery failings prevented the plaintiffs from obtaining discovery relevant to that critical issue.
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Over the past year, privacy concerns have played an increasingly critical role in influencing how government and the private sector think about information collection, use, and disclosure. With the rapid pace of technological advancements – and the complex issues that accompany developments such as the Internet of Things, cloud technology, and “big data” analytics –

Recently, Louisa Marion and I analyzed the Supreme Court’s far-reaching decision in Riley v. California, 573 U.S. __ (2014), and its implications going forward. In Riley, Chief Justice Roberts concluded that today’s cell phones (which the Court called “minicomputers”) are fundamentally different than physical containers: their storage capacity is virtually unlimited; they contain a

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

Cybersecurity’s escalating threats, intensifying oversight, and expanding publicity in recent years exploded in 2013. It was a year bookended by President Obama’s cybersecurity warnings in his State of the Union message and the mega-breaches at Target and Neiman-Marcus. And it gave us a cyber panorama – the Cybersecurity Executive Order; industry security reports of massive