Data Law Insights

Data Law Insights

Legal insights on navigating privacy, data protection, cybersecurity, information governance, and e-discovery

Category Archives: Cooperation/Meet & Confer

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Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
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 and e-discovery… Continue Reading

Fresh Look at E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
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 the search… Continue Reading

Crowell & Moring Releases “Data Law Trends & Developments” and Announces Expanded “Data Law Insights” Blog

Posted in Accessibility, Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Data Breach, Ethics, Government Agencies, Government Contracting, Government Regulations & FISMA, Information Management, Preservation, Privacy, Privilege/Rule 502, Proportionality, Public Sectors, Rules, Sanctions, Social Media, Spoliation, Technology Assisted Review, Transnational Discovery
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… Continue Reading

To Be Or Not To Be Produced—That Is The Question

Posted in Accessibility, Admissibility, Cooperation/Meet & Confer, Privilege/Rule 502, Proportionality, Rules, Sanctions
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… Continue Reading

Simplifying Privilege Logs: New York’s Commercial Division Proposes Categorical Privilege Logs

Posted in Cooperation/Meet & Confer, Privilege/Rule 502, Rules
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… Continue Reading

California State Bar Offers Guidance on Attorney’s Ethical Duties in Handling E-Discovery

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Ethics, Preservation, Privilege/Rule 502, Proportionality, Rules, Sanctions, Social Media, Spoliation, Technology Assisted Review
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… Continue Reading

Controlling Litigation Expense and Exposure Through Appropriate Self-Help

Posted in Cloud Computing, Cooperation/Meet & Confer, Information Management, Social Media, Technology Assisted Review
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… Continue Reading

Protecting Confidential Information: Taking Appropriate Steps to Avoid Sanctions

Posted in Cooperation/Meet & Confer, Ethics, Information Management, Sanctions
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… Continue Reading

Report From Huron’s E-Discovery Advocacy Institute

Posted in Cooperation/Meet & Confer, Preservation, Proportionality, Rules, Sanctions, Technology Assisted Review
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… Continue Reading

Shifting the Burden and Cost of Reviewing Voluminous ESI to Opposing Parties

Posted in Accessibility, Cooperation/Meet & Confer, Privilege/Rule 502, Proportionality, Rules
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… Continue Reading

Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

Posted in Cooperation/Meet & Confer, Preservation, Rules, Social Media, Spoliation, Technology Assisted Review
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… Continue Reading

Free BNA Webinar on ESI in Federal and State Criminal Actions

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States… Continue Reading

Avoiding Sanctions in E-Discovery When Producing Voluminous ESI

Posted in Cooperation/Meet & Confer, Rules, Sanctions
Document dumps deliberately comprising significant numbers of non-responsive documents are of course never appropriate and have long been frowned upon by the courts. Neither is it appropriate to deliberately bury a smoking gun document in the middle of a heap of marginally responsive documents. Both tactics long predate ESI. But the ever-increasing volume of ESI—now… Continue Reading

New Look at E-Discovery in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2013 American Bar Association annual State of Criminal Justice, I have published a new article 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 the search and seizure of ESI,… Continue Reading

Indiana Federal Judge Declines to Order Defendants to Re-Do Discovery Based on Keyword Searches Followed by Predictive Coding

Posted in Cooperation/Meet & Confer, Information Management, Proportionality, Rules
Ever since Magistrate Judge Peck’s decision last year in Da Silva Moore v. Publicis Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), there has been an increasing stream of orders and opinions weighing in on the use (or proposed use) of predictive coding. With each opinion, a new wrinkle appears, further shaping how parties… Continue Reading

ESI in Government Investigations and Criminal Matters (VIDEO)

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
Back in February, I spoke at the at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” During my presentation, I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to… Continue Reading

Social Media Evidence in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Information Management, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
In conjunction with the Richmond Journal or Law and Technology’s annual survey, Adrian Fontecilla and I have published a new article: Social Media Evidence in Government Investigations and Criminal Proceedings. The article provides an in-depth look at many of the cutting edge issues raised by social media in government investigations and the criminal context, including… Continue Reading

Discovery Misconduct and Sanctions: There’s No App for That!

Posted in Cooperation/Meet & Confer, Rules, Sanctions
I remember when “apps” meant chips and salsa or maybe some buffalo wings and fried mozzarella sticks before dinner.  “Apps” used to clutter my table.  Now they clutter my tablet—largely thanks to my kids, who are as proficient with the thing as I am.  According to Apple, there is an app for just about anything. … Continue Reading

Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
Last week, I was one of the featured speakers at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to social… Continue Reading

Predictive Coding: How Much Transparency and Cooperation Is Required When Using Technology Assisted Review In Litigation?

Posted in Cooperation/Meet & Confer, Information Management, Proportionality, Technology Assisted Review
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… Continue Reading

A Call for Increased Cooperation: Litigants and their lawyers need to meet and confer early and often—and learn how to do so effectively—and courts need to encourage cooperation through greater facilitation and sanctions

Posted in Cooperation/Meet & Confer, Ethics, Rules, Sanctions, Spoliation
Litigation costs are far too often driven up by an unnecessarily adversarial approach to discovery. Many clients and their counsel continue to believe that their litigation interests are best served through contention and a lack of reasonable candor. They are mistaken. Several years ago, The Sedona Conference® addressed this issue with its Cooperation Proclamation, which… Continue Reading

FTC Finalizes Changes to Rules Governing Investigatory Procedures, Primarily to Address Issues Regarding Electronically Stored Information

Posted in Cooperation/Meet & Confer, Ethics, Government Agencies, Government Regulations & FISMA, Preservation, Privilege/Rule 502, Public Sectors, Rules
On September 27, 2012, the Federal Trade Commission published final revisions to the Commission’s Rules of Practice governing its investigatory process (16 CFR Part 2) and attorney discipline (16 CFR Part 4). Spurred in large part by the challenges posed by discovery of electronically stored information, the Commission explained that the final rules will “update… Continue Reading

FTC Proposes Changes to Rules Governing Investigatory Procedures, Primarily to Address Issues Regarding Electronically Stored Information

Posted in Cooperation/Meet & Confer, Ethics, Government Agencies, Preservation, Privilege/Rule 502, Public Sectors, Rules
On January 13, 2012, the Federal Trade Commission announced a number of proposed changes to Parts 2 and 4 of the Commission’s Rules of Practice governing its investigatory process, “[e]specially in response to growing reliance upon and use of electronic media in document discovery.”  Given the challenges posed by the routine discovery of large, non-uniform,… Continue Reading