Data Law Insights

Data Law Insights

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

Category Archives: Ethics

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December 2016 Monthly Update

Posted in Cybersecurity / Data Security, Data Breach, Ethics, Government Agencies, Health IT, Privacy, Rules
Kansas Judge Rules that Class Action over CareCentrix Data Breach may Proceed On December 19, 2016, in Hapka v. Carecentrix, the United States District Court for the District of Kansas denied CareCentrix, Inc.’s (CareCentrix) motion to dismiss a class action suit arising from a data breach affecting CareCentrix’s personal and tax information regarding thousands of… Continue Reading

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

Technology Coalition tells the President: Encryption Back Doors are a Bad Idea

Posted in Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy
In an open letter to President Obama, 143 of the nation’s most well-known businesses, trade associations, academics, and organizations urged the President to promote strong encryption technologies. The letter was prompted by recent law enforcement (including the FBI and NSA) advocacy for built-in government access to encrypted data despite a December 2013 recommendation by the… Continue Reading

Recent Conviction Illustrates How Obscure Federal Statute Can Be Used to Criminally Prosecute Those Who Design and Sell Devices and Apps Capable of Surreptitious Monitoring

Posted in Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Privacy
In an obscure case that could have broad implications, a judge in the Eastern District of Virginia sentenced the Danish CEO of two overseas technology companies to time served and a fine of $500,000 for the advertisement and sale of a mobile application capable of surreptitiously monitoring communications and other information on a mobile device.… Continue Reading

Evolving Legal Landscape of Social Media

Posted in Admissibility, Cybersecurity / Data Security, Ethics, Government Agencies, Preservation, Privacy, Social Media
Social media has become an ubiquitous means of communication in today’s society, with more than 90% of today’s online adults using social media regularly.  With this backdrop, it is no surprise that social media implicates an evolving legal landscape.  In the  “Data Law Trends & Developments: E-Discovery, Privacy, Cybersecurity & Information Governance”, on page 8, we… 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

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

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

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

New Hampshire Becomes Latest Jurisdiction to Advise Lawyers on How to Ethically Use Social Media When Searching for Evidence on Facebook and Twitter

Posted in Ethics, Social Media
In an ethics opinion issued last month, New Hampshire joined the growing list of states and cities whose bar association ethics committee has provided its lawyers with formal guidance on the ethics of using social media to search for evidence in pending litigation. Given the ubiquity of social media use today, some may contend that… 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

Social Media at Trial — Bloomberg Video Interview

Posted in Accessibility, Cloud Computing, Criminal Law, Ethics, Government Agencies, Privacy, Social Media
Last week, I spoke with Bloomberg about the challenges associated with the use of social media in government investigations and criminal matters. The video, titled Confronting an Uncertain Frontier: The Role of Social Media at Trial is posted on Bloomberg’s E-discovery Resource Center.  In the interview, I discussed the widespread use of social media in government… 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

Walking The Virtual Line: A Guide For New York Trial Lawyers Conducting Jury Research Using Social Media

Posted in Ethics, Rules, Social Media
The ubiquity of social media cannot be denied, nor its implications for the practice of law. Lawyers are not only being encouraged to have an online presence for networking purposes, but they are also asked to use the internet and social media to conduct research, where some courts have even reproached lawyers for not doing… Continue Reading

Social Media Evidence in Government Investigations and Criminal Matters

Posted in Admissibility, Cloud Computing, Criminal Law, Ethics, Government Agencies, Preservation, Privacy, Sanctions, Social Media, Spoliation
Social media pervades our world and has evolved into one of the core pillars of modern communication, shaping how we do business, learn about and share news, and engage with family and friends.  It is also undeniably a critical, new frontier of government investigations and criminal proceedings.  In a new article published by Bloomberg and in… 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