Data Law Insights

Data Law Insights

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

Category Archives: Proportionality

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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

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

Court Restricts Cross-Litigation Discovery, Rejecting Perfection in Discovery including with Predictive Coding

Posted in Proportionality, Technology Assisted Review
In a Valentine’s Day order, Judge Denise Cote of the Southern District of New York ruled that the defendants in a set of complex mortgage-backed securities cases could not use documents obtained through discovery in related litigation in the Central District of California. This even included documents that purportedly should have been produced in the… Continue Reading

Repeated E-Discovery Failures Lead to $1 Million Sanctions

Posted in Preservation, Proportionality, Sanctions, Spoliation
Last month, in In Re Pradaxa (Dabigatran Extexilate) Products Liability Litigation, a federal judge in the Southern District of Illinois ordered the defendants in a multi-district litigation (MDL) product liability case to pay nearly $1 million in sanctions for repeated and bad faith discovery violations, primarily based on the defendants’ failure to adequately preserve electronic… 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

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

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

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

Federal Circuit’s Model Order for E-Discovery in Patent Cases, One Year Later: Increasing Judicial Involvement in Reducing Discovery Costs

Posted in Government Agencies, Preservation, Proportionality, Rules
So what kind of impact has the Federal Circuit Model Order had on the cost of patent litigation in the year since its adoption? The hottest topic in patent e-discovery one year ago was Federal Circuit Chief Judge Rader’s remarks to the Eastern District of Texas Judicial Conference on the judiciary’s role in curbing discovery… Continue Reading