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

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

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.
Continue Reading Crowell & Moring Releases “Data Law Trends & Developments” and Announces Expanded “Data Law Insights” Blog

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.
Continue Reading To Be Or Not To Be Produced—That Is The Question

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, comes at a time when the FTC has received increasing criticism that  its continued reliance on case-by-case adjudication (rather than rulemaking) to apprise companies of their data security responsibilities provides insufficient guidance regarding which data security standards apply.  Indeed, the FTC’s increased enforcement trend coincides with efforts by the National Institute for Standards and Technology to establish more consistent voluntary standards regarding data security through its release of the cybersecurity framework as well as requests from the FTC to Congress for even more authority to police data breaches.
Continue Reading FTC Data Security Authority Remains Murky Despite Wyndham

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.”
Continue Reading Simplifying Privilege Logs: New York’s Commercial Division Proposes Categorical Privilege Logs

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.
Continue Reading California State Bar Offers Guidance on Attorney’s Ethical Duties in Handling E-Discovery

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

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