Data Law Insights

Data Law Insights

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

Category Archives: Rules

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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

Privacy & Cybersecurity Weekly News Update- Week of July 9

Posted in Admissibility, Cybersecurity / Data Security, Government Agencies, Information Management, Privacy, Rules, Social Media, Transnational Discovery
“Pokémon Go” Developer feels the heat over data collection; 2nd Circuit Ruling limits government’s access to data stored overseas; 9th Circuit CFAA Ruling increases Facebook’s control over its Users’ Data; Dutch Study reveals tension between EU Trade Deals and Data Protection “Pokémon Go” Developer in Hot Water over Extensive Data Collection Practices In early July,… Continue Reading

OCR Levies Second Ever HIPAA Civil Monetary Penalty

Posted in Cybersecurity / Data Security, Data Breach, Government Agencies, Information Management, Privacy, Rules
For only the second time in its history (following the $4.3 million Cignet case) the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) imposed civil money penalties (CMPs) on a company for violating the Health Insurance Portability and Accountability (HIPAA) Privacy Rule. Lincare, Inc. (Lincare), a home health provider, was… Continue Reading

Interim Rule Could Expand Already Onerous DFARS Cyber Requirements

Posted in Cybersecurity / Data Security, Data Breach, Government Agencies, Government Contracting, Government Regulations & FISMA, Information Management, Privacy, Public Sectors, Rules
Yesterday, the DoD published an Interim Rule that, if finalized as drafted, would expand the already onerous requirements of the DFARS Safeguarding Clause to a broader array of potentially 10,000 defense contractors.  Citing “recent high-profile breaches of federal information,” the DoD’s Interim Rule emphasizes the need for clear, effective, and consistent cybersecurity protections in its… 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

Key Privacy & Cybersecurity Developments: June 15-19, 2015

Posted in Cybersecurity / Data Security, Government Agencies, Privacy, Public Sectors, Rules
Litigation and regulation surrounding privacy and cybersecurity is continuously developing, both within the government and the private sector.  This digest summarizes the most notable events in data security this week. Privacy Advocates Quit Facial Recognition Talks with NTIA After 16 months of working with with the National Telecommunications & Information Administration, nine privacy and consumer… Continue Reading

Brown v. Tellermate Holdings: Lessons in Preserving and Producing Cloud-Based Data and Effective Communication Between Counsel and Clients

Posted in Cloud Computing, Preservation, Rules, Sanctions, Spoliation
The recent decision in Brown v. Tellermate Holdings, out of the Southern District of Ohio, provides yet another valuable illustration of the critical need for litigation counsel to take reasonable steps to educate themselves about potentially relevant ESI in the possession, custody, or control of their clients and to take appropriate measures to preserve and… Continue Reading

Privacy Takes Center Stage for Private and Public Sectors Alike

Posted in Cloud Computing, Cybersecurity / Data Security, Data Breach, Privacy, Rules
Over the past year, privacy concerns have played an increasingly critical role in influencing how government and the private sector think about information collection, use, and disclosure. With the rapid pace of technological advancements – and the complex issues that accompany developments such as the Internet of Things, cloud technology, and “big data” analytics –… Continue Reading

Cyber Storms on Horizon: More Hackers, Regulators, and Litigation

Posted in Cloud Computing, Cybersecurity / Data Security, Data Breach, Government Agencies, Public Sectors, Rules
Cybersecurity’s escalating threats, intensifying oversight, and expanding publicity in recent years exploded in 2013. It was a year bookended by President Obama’s cybersecurity warnings in his State of the Union message and the mega-breaches at Target and Neiman-Marcus. And it gave us a cyber panorama – the Cybersecurity Executive Order; industry security reports of massive… Continue Reading

Hot Topics in Criminal E-Discovery

Posted in Criminal Law, Government Agencies, Privacy, Rules, Sanctions, Spoliation
As part of Crowell’s “Data Law Trends & Developments:  E-Discovery, Privacy, Cyber-Security & Information Governance,” Steve Byers and I examined the hottest topics in E-Discovery in Government Investigations and Criminal Litigation.  Our report begins on page 15, and explores recent trends in this rapidly expanding field and forecasts potential developments with Federal Rule of Evidence… 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

FTC Data Security Authority Remains Murky Despite Wyndham

Posted in Cybersecurity / Data Security, Government Agencies, Privacy, Rules
In the latest and most important federal court decision on data security enforcement, District of New Jersey Judge Esther Salas broadly upheld the Federal Trade Commission’s authority to police data security under the “unfairness” prong of Federal Trade Commission Act Section 5.  The decision, which rejected Wyndham Worldwide’s claims that the FTC lacked such authority,… 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

The Growing Transparency Into National Security Letters

Posted in Government Agencies, Privacy, Rules
Early last year, I wrote about the significant district court opinion in In re National Security Letters, a ground-breaking decision that found the FBI’s use of gag orders with national security letters (“NSL”) to be unconstitutional. Since that time, the Edward Snowden revelations have not only enhanced public scrutiny of how the private and public sectors work… 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

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

Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

Posted in Cooperation/Meet & Confer, Preservation, Rules, Social Media, Spoliation, Technology Assisted Review
Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated… 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

Avoiding Sanctions in E-Discovery When Producing Voluminous ESI

Posted in Cooperation/Meet & Confer, Rules, Sanctions
Document dumps deliberately comprising significant numbers of non-responsive documents are of course never appropriate and have long been frowned upon by the courts. Neither is it appropriate to deliberately bury a smoking gun document in the middle of a heap of marginally responsive documents. Both tactics long predate ESI. But the ever-increasing volume of ESI—now… Continue Reading

Regulating Cybersecurity On A Piecemeal Basis—Can The Executive Order Harmonize The Cyber Law Patchwork?

Posted in Cybersecurity / Data Security, Government Agencies, Government Regulations & FISMA, Privacy, Rules
With no comprehensive cybersecurity legislation nearing the finish line, Congress and federal agencies have attempted to fill the void with a series of piecemeal laws, regulations, and polices leaving both the public and private sector with fragmented — even inconsistent — guidance on how to defend cyberspace.  As we discuss in our recent article, “Regulating… Continue Reading