Category — Electronic Discovery & Data Management
This is a friendly reminder to all covered entities that, by March 1, 2017, they must report to the Secretary of Health and Human Services any breaches of unsecured protected health information (PHI) that were discovered in 2016 and involved fewer than 500 individuals. [Read more →]
February 9, 2017 No Comments
2015 Revisions to the Federal Rules of Civil Procedure Effective Today: 5 Key Practice Pointers to Meeting the New Requirements
Today is the big day! New amendments to the Federal Rules of Civil Procedure (“Rules”) become effective. Are you ready? Details about the revised Rules, including the text of the Rules, redlines, and detailed comments are available here (and we will post additional information on each key provision in the coming weeks). The focus of this post is answering one simple question: how will these changes impact the way you handle discovery? To comply with the spirit and the letter of these rule changes, you may need to make some adjustments to your discovery practice.
The revised Rules emphasize case management and proactive discovery by adding several mechanisms to front-load discovery decisions and emphasize proportionality in the discovery process. They also provide guidance for when sanctions for failure to preserve electronically stored information (“ESI”) are appropriate. How courts will apply these Rules is subject to debate, but if you adhere to the five practice pointers below, you should be in good shape to avoid sanctions, reduce risks, and get to the merits of your case without a discovery sideshow.
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December 1, 2015 No Comments
A new putative class action lawsuit has been filed against the hotel chain owned by Donald Trump in the United States District Court for the Southern District of Illinois, after the hotel chain revealed that it had been the subject of a data breach. The suit asserts claims under “state consumer protection laws” and “state data breach notification statutes” of the states of the affected class members, along with claims of negligence, breach of implied contract, and unjust enrichment. [Read more →]
October 21, 2015 No Comments
In an oral ruling from the bench, Judge Lorraine Preska of the Southern District of New York recently affirmed Magistrate Judge James Francis IV’s April 29, 2014 decision – Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation, (S.D.N.Y. Jul. 31, 2014), – and rejected Microsoft Corporation’s bid to quash a warrant for the search of an Irish user’s content-based information, which was located in a Microsoft data center located in Ireland.
As you may remember from our previous posts, the Stored Communications Act, 18 USC §§ 2701 through 2711, represents, among other things, an attempt at balancing the privacy rights of individuals who expect that their electronic information will remain private against the government’s legitimate interest in gaining access to such information during criminal investigations.
August 13, 2014 No Comments
Breaking the Seal: Does Using Third Party eDiscovery Vendors Raise Privilege and Work Product Issues?
We’re not breaking news when we tell you that the exponential growth of electronic documents generated by clients has complicated the discovery process. Reducing this massive volume of information down to the relevant information needed to resolve a dispute requires the use of technology for collecting, filtering, processing, analyzing and producing electronically stored information. Attorneys now have to deal with metadata, servers, and social media in order to litigate the merits of cases. Ethics rules have been modified to require lawyers to understand the risks and benefits of technology. And preservation sanctions have alerted attorneys to the need to understand the difference between an email server and a locally-archived PST file. Attorneys should not try to lead double lives as data processors and litigators. Given the real need to properly handle these issues, consulting technology and litigation support providers is common and necessary. But does involving these third-party resources create a risk to the attorney client privilege or work product protections?
July 17, 2014 No Comments
It should no longer be news that, for parties to most lawsuits, responding to discovery entails searching, reviewing, and producing electronically stored information. Also widely recognized is the fact that electronic discovery can be a costly, time-consuming burden. This burden is magnified for a nonparty subject to a request for ESI who likely won’t see any corresponding upside – that is, no need to use the documents produced to support a claim or defense of their own and no need to receive documents from others for the same purposes. Fortunately, therefore, there are some protections built into the Federal Rules that may minimize the burden to a nonparty on the receiving end of a subpoena. But given the relative scarcity of legal authority on the topic, the varying approaches at the state level, and specific facts of any particular case, nonparties facing discovery demands should try to negotiate a response plan that reduces legal risks and costs. A reasonable plan may even include cost shifting.
June 23, 2014 No Comments
Your litigation in 2014 will involve requests for production of electronically stored information (“ESI”), and there is a good chance that some of that information is stored somewhere in “the cloud.” ESI stored in the cloud has unique challenges and opportunities. Determining what relevant, discoverable ESI resides in the cloud; assessing whether it is, or should be, within the scope of your discovery plan; and executing a process for preserving, collecting, and producing it all require an understanding of the legal and practical issues impacting cloud storage. Here are a few key considerations to help you navigate the process.
April 17, 2014 No Comments
Gone are the days of bankers boxes full of reams of paper, passed from one firm to the next as the sole method of producing documents in litigation; it’s long since been established that eDiscovery is here to stay. But, as discovery technology develops at a torrid pace, so too does the format of document productions in discovery. This may come as a surprise to some who have only recently grown accustomed to discovery exchanges of CDs chock full of PDFs, but PDF technology, like the bankers boxes of paper, is going the way of the fax machine.
March 24, 2014 1 Comment
Fairly often, we get a call from a client who is unhappy with something that has been anonymously posted on the Internet about the client’s product or service. Often, these online reviews are unfair. Sometimes they are downright false. The client calls, wanting us to “do whatever it takes” to discover the identity of the anonymous Internet poster and sue him for defamation or whatever else we can think of. The reality is, although it’s doable, it’s just not that easy.
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February 28, 2014 No Comments
The consensus among most commentators tracking annual developments in eDiscovery law seems to be a collective yawn when it comes to evaluating 2013. No earth-shattering edicts were pronounced; no bright lines were drawn to simplify preservation obligations; no definitive guidance was announced on what must be disclosed when predictive coding is deployed. But 2013 was still notable – new and amended rules continued to be introduced and adopted at the state and federal level and cases continued to refine parties’ obligations and options for effectively addressing eDiscovery. The eDiscovery landscape of 2013 can help prepare you for 2014 and beyond. [Read more →]
February 18, 2014 No Comments