Data Law Insights

Data Law Insights

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

Category Archives: Privilege/Rule 502

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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

Protecting Privilege Need Not Be So Expensive And Tedious

Posted in Privilege/Rule 502
Protecting privilege continues to drive up costs in litigation and government investigations. The explosion in electronically-stored information has made matters worse by generating exponentially more documents to review and log as privileged. Unfortunately, the relief Congress sought to provide more than five years ago through the adoption of Federal Rule of Evidence 502 has not… 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

Reducing Risk and Cost with Federal Rule of Evidence 502(a): The Demise of Subject Matter Waiver

Posted in Privilege/Rule 502, Rules, Sanctions
I have been delinquent in posting this article that I recently published with a colleague in BNA’s Digital Discovery & e-Evidence® regarding Federal Rule of Evidence 502 and subject matter waiver. The article—entitled “The Demise of Subject Matter Waiver: Federal Rule of Evidence 502(a) Five Years Later”—surveys key cases interpreting and applying Rule 502(a) since… 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

ITC Issues Final Rules on E-Discovery, Including Specific Limitations on Production of ESI, and Mechanism for Addressing Inadvertent Disclosure of Privileged Documents

Posted in Accessibility, Government Agencies, Privilege/Rule 502, Proportionality, Rules
More than seven months after the International Trade Commission proposed changes to its procedural rules relating to e-discovery “in order to increase the efficiency of its section 337 investigations” and “to address concerns that have arisen about the scope of discovery in Commission proceedings,” on May 21, 2013 the Commission issued final rules adopting the… Continue Reading

Court Invokes FRE 502(d) to Permit Intentional Production of Privileged Materials Without Waiver

Posted in Privilege/Rule 502, Rules
A recent court ruling illustrates the significant value of Federal Rule of Evidence 502 for preserving privilege in a cost-effective and expedient manner. In Chevron v. Weinberg Group, Misc. Action No. 11-409 (D.D.C.), Magistrate Judge John Facciola entered a Rule 502(d) order that allows the defendant to knowingly produce purportedly privileged materials without waiving any… Continue Reading

ITC Publishes Proposed Rules to Limit E-Discovery and Address Privilege Issues

Posted in Government Agencies, Privilege/Rule 502, Rules
On October 5, 2012, the U.S. International Trade Commission (ITC) published proposed amendments to its rules of procedure that would limit e-discovery and provide guidance regarding the assertion of privilege claims in Section 337 proceedings. The goal of the proposed amendments “is to reduce expensive, inefficient, unjustified, or unnecessary discovery practices in agency proceedings while… 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