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

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

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 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 its adoption about five years ago. We look at how courts have assessed subject matter waiver claims under the rule.

The good news is that the courts generally look to be applying it as Congress intended. This should dramatically reduce—if not entirely eliminate—the risk of subject matter waiver, especially for inadvertent privilege disclosures.
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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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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 proposed amendments with some revisions. The new rules are applicable to investigations instituted after June 20, 2013. Section 337 investigations are administrative proceedings before the ITC, authorized under 19 U.S.C § 1337, to determine whether there has been unfair competition—typically patent infringement—in the importation of articles into the U.S. The only remedy is injunctive relief, typically an order excluding the articles from entry into the U.S. The amended rules are intended “to reduce expensive, inefficient, unjustified, or unnecessary discovery practices in” Section 337 proceedings.
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