As none of us can forget, the COVID-19 pandemic forced companies to close their brick and mortar offices with little time to adequately prepare their employees for a remote work environment. All of a sudden, in-person meetings were replaced with virtual conferences via Microsoft Teams, Zoom, and Amazon Chime – each leaving a new data

E-Discovery no longer dominantly involves emails and shared drive documents. With the increasing prevalence of mobile devices in the workplace and new apps being developed daily, mobile data and other non-email communications are moving to the forefront of discovery. Times have changed, and attorneys have professional and ethical obligations to keep up. To effectively and competently represent clients, attorneys must stay apprised of how to work with these ever-changing forms of data – or get help from someone knowledgeable. To do so, we have set out some suggestions below organized around common stages of the discovery lifecycle of digital evidence.

Identification. In conducting custodian interviews, ask questions to target the data types the custodian works with. Start broadly by determining if the company has a BYOD policy and asking if they allow the use of personal devices for work purposes. Confirm which messaging tools they use for business purposes, with the understanding that people tend to play down such use. For each messaging application, ask how they are used and with whom they communicate. Discuss these same topics with your client’s IT team to better understand  the company’s policies and capabilities for controlling the use of personal devices, as well as employees’ actual practices.


Continue Reading Best Practices for Navigating Discovery of Mobile Data and Alternative Communication Tools in Today’s Digital World

GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76 (3d. Cir. 2019)

The Third Circuit’s decision in GN Netcom illustrates how Federal Rule of Civil Procedure 37(e) has elevated the bar to obtaining a default judgment based on spoliation, raising the question of what level of egregious conduct would justify that penalty. The decision also is notable for its exploration of the evidentiary support that aggrieved parties should be permitted to submit when the lesser penalty of a permissive adverse inference instruction is ordered. In a split decision, the appellate court granted a new trial because plaintiff’s expert was precluded from testifying as to the degree of spoliation, which might have impacted the outcome of the case.

Defendant’s Spoliation of Evidence


Continue Reading Prohibition on Expert Testimony Results in New Trial

The U.S. Department of Justice released revisions to the Foreign Corrupt Practices Act corporate enforcement policy on March 8, 2019. While intended to clarify the DOJ’s position on a number of hot-button issues, including its controversial stance on certain instant-messaging software, a closer look reveals that these changes fall short of answering several key questions

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

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 produce that information. The case highlights, in particular, the pitfalls associated with cloud-based ESI (specifically, a common sales app called saleforce.com) as well as the severe sanctions that can befall those who make significant missteps, as the defendant and its counsel learned in Brown.

United States Magistrate Judge Terence Kemp observed early in his decision: “Discovery did not go smoothly.” The court’s recitation of the procedural history and discovery issues in the case soon reveal this to be a significant understatement. Judge Kemp ultimately sanctioned the defendant and its counsel for failing to preserve and timely produce ESI relevant to the plaintiffs’ age discrimination suit. In addition to awarding attorney’s fees and costs incurred by the plaintiffs in filing and prosecuting various motions, the court prohibited the defendant from introducing or relying on any evidence that it terminated the plaintiffs’ employment for performance-related reasons rather than age. Judge Kemp reasoned that the defendant’s discovery failings prevented the plaintiffs from obtaining discovery relevant to that critical issue.
Continue Reading Brown v. Tellermate Holdings: Lessons in Preserving and Producing Cloud-Based Data and Effective Communication Between Counsel and Clients

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

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