In just the last few years, most companies – big and small – have embraced the Bring Your Own Device (BYOD) movement at varying levels from allowing employees to access company email on their personal smartphones all the way to not issuing company-owned computers and instead having employees bring in their personal laptops to access

Social media has become an ubiquitous means of communication in today’s society, with more than 90% of today’s online adults using social media regularly.  With this backdrop, it is no surprise that social media implicates an evolving legal landscape.  In the  “Data Law Trends & Developments: E-Discovery, Privacy, Cybersecurity & Information Governance”, on

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

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

Emails often provide key evidence in conspiracy-related investigations and subsequent litigation. More recently, social media and text messages have provided additional evidence for such matters. In response, most companies have enacted policies to educate their employees about using these communication mediums. However, recent antitrust investigations and federal lawsuits in the financial services industry are utilizing electronic communications made via Bloomberg Terminal as key evidence. The reported Bloomberg chat evidence in these cases makes clear that companies should reassess whether their internal compliance policies and training need to be updated to mitigate the risk that Bloomberg Terminal evidence – and not just emails and social media content – could create legal liability for the company.
Continue Reading Bloomberg Terminal: How Financial Services Firms Need to Adapt to Regulators’ Favorite New Source of Electronic Evidence

I recently published an article for InsideCounsel addressing ways companies can reduce risk and costs in litigation. I advocate appropriate self-help.

Unfortunately, the courts, regulators, and legislators have not fully kept up with the extraordinary pace of technological developments, the proliferation of ESI, and the growing use of social media, cloud computing, and other ESI-related

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 by Rule 1 of the Federal Rules of Civil Procedure,” the Court’s Bench-Bar Committee approved recommendations made by various working groups of its Rule 1 Task Force. That task force project included a working group dedicated to e-discovery, and the result is that the Court’s ESI Guidelines have been revamped to incorporate the growing volume of e-discovery case law and guidance published in recent years.

Now twelve pages instead of its original five, the revised Guidelines include various notable updates. For example, the Guidelines now address the use of technology-assisted review (TAR), they reference the Sedona Conference Cooperation Proclamation, and they instruct counsel about the availability of Federal Rule of Evidence 502(d) to protect against waivers of privilege. The new ESI Guidelines undoubtedly place the U.S. District Court for the District of Kansas as one of the leading federal courts in the area of civil litigation e-discovery.
Continue Reading Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

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

In an ethics opinion issued last month, New Hampshire joined the growing list of states and cities whose bar association ethics committee has provided its lawyers with formal guidance on the ethics of using social media to search for evidence in pending litigation. Given the ubiquity of social media use today, some may contend that searching for social media evidence that may be available from the accounts of clients, opposing parties and third-party witnesses is part of a lawyer’s ethical duty to represent his or her client competently and diligently and to investigate the case. Using social media to collect evidence or investigate a case, however, may implicate additional ethical duties, including the duty to be honest in dealing with others. Consequently, an increasing number of bar association ethics committees are addressing the fact that their respective rules of professional conduct don’t offer express guidance on how to navigate the ethical issues that these new technologies present to lawyers. In addition to communications with third-party witnesses, recent ethics opinions address a host of other novel issues, such as the July 2013 New York County Lawyer’s Association’s Ethics Opinion advising lawyers on “how attorneys may advise clients concerning what may be posted or removed from social media websites.”
Continue Reading New Hampshire Becomes Latest Jurisdiction to Advise Lawyers on How to Ethically Use Social Media When Searching for Evidence on Facebook and Twitter