Government Contracting

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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A DFARS final rule (Nov. 18, 2013) on the safeguarding of unclassified, controlled technical information requires contractors, among other things, to report within 72 hours of discovery any “cyber incident” (an action that results in an actual or potentially adverse affect on an information system and/or the information residing therein), preserve relevant data for at

On January 14, 2013, a federal court sanctioned the government for failing to preserve a website advertising a $32 million Department of Veterans Affairs procurement, finding that the Federal Acquisition Regulations requiring the government to preserve documents related to procurements triggered its duty to preserve the website. Noting that the government’s conduct amounted to negligence

The U.S. District Court for the District of New Mexico recently upheld a Magistrate Judge’s recommendation for sanctions against the government for failing to preserve electronically stored information (ESI) in a False Claims Act case, ordering the government to produce certain privileged materials and to pay costs associated with the motion for sanctions.

In United States ex rel. Baker v. Community Health Sys., Inc, No. 05-279-WJ-ACT (D.N.M. Oct. 3, 2012), the government issued a notice to preserve documents to the defendants in 2005 when it began investigating Medicaid fraud claims by relator Robert C. Baker. However, the government did not issue its own litigation hold order until February 2009 when it filed its notice to intervene. The court found that, by this time, relevant evidence had been destroyed. Further, even after the government issued its legal hold order, the court determined that the government’s “lackadaisical attitude” toward implementing steps to preserve relevant ESI resulted in further spoliation.

The government argued that its duty to preserve did not arise until it received permission from the Department of Justice to intervene. The court rejected this, however, finding that the government should have reasonably anticipated litigation at least six months before the government intervened, when the defendants rejected the government’s settlement offer. Citing “overwhelming evidence,” the court concluded that the defendants were prejudiced by the lost documents because they were “critical to one of the Defendants’ theories of defense” – namely, government knowledge.
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