Cooperation/Meet & Confer

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 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 New York Supreme Court’s Commercial Division has proposed sweeping changes to privilege logs that could bring simplicity and efficiency to what has long been viewed as a tedious, frustrating, and needlessly costly practice. The proposal, published for comment on April 3, 2014, would require litigants in the Commercial Division to “agree, where possible, to employ a categorical approach to privilege designations” rather than a “document-by-document log.” Under the current requirements, New York’s Civil Practice Law and Rules mandates that a party withholding documents on the basis of privilege produce a privilege log which: “(i) contains a separate entry for each document being withheld; (ii) provides ‘pedigree’ information for each such document; and (iii) sets forth the specific privileges or immunities that insulate the document from production.” As anyone involved in electronic discovery in complex litigation matters knows, this can translate to a large team of attorneys devoting hundreds of hours to recording detailed information about tens of thousands of documents, one document at a time. As recognized in the Commercial Division proposal, “the segregation, review, redaction, and document by-document logging of privileged communications is both time-consuming and costly,” and this cost is rarely justified by the “potential benefits a privilege challenge may have on the outcome of the litigation.”
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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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I recently published an article for InsideCounsel addressing ways companies can reduce risk and costs in litigation. I advocate appropriate self-help.

Unfortunately, the courts, regulators, and legislators have not fully kept up with the extraordinary pace of technological developments, the proliferation of ESI, and the growing use of social media, cloud computing, and other ESI-related

A colleague and I recently published an article in BNA’s Digital Discovery & e-Evidence® discussing the recent sanctions against Quinn Emanuel Urquhart & Sullivan LLP, in Apple, Inc. v. Samsung Electronics Co. Ltd, et. al., 5:11-cv-01846 (N.D. Cal. Jan. 29, 2014). Our article, “Protecting Confidential Information: Lessons from the Apple v. Samsung Firestorm,” tells a

On October 1st, I attended an all-day series of presentations hosted by Huron Legal Institute and Sandpiper Legal LLP in New York, which included several leading federal jurists and well-regarded practitioners offering their insights.

The event featured five hypothetical cases covering a range of topics, with attorneys appearing before one of more of the judges to conduct a mock discovery conference or to argue motions. This structure proved to be an engaging means of discussing the issues, and the more astute members of the audience recognized that a couple of the scenarios were drawn from recent cases, including the Biomet case that I discussed a few months ago and Pippins v. KPMG, which we posted about last year. The format also played to the judges’ strengths, allowing them to tease out issues and express their opinions. While the discussion was “off the record”, I will discuss the overall themes and provide some highlights (without attribution) of the discussions of predictive coding and proposed amendments to the Federal Rules on proportionality and preservation.
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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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