November 07, 2018

E-Discovery

E-Discovery

Your At-a-Glance Tool for Information on E-Discovery

05/15: National Institute E-Discovery 2015

Hot Topics and Recent Court Decisions in E-Discovery

Zachary G. Newman Courts are becoming increasingly progressive in dealing with ESI.


New E-Discovery Best Practices for Federal Criminal Practice 

Seth H Row The DOJ has issued a protocol for managing ESI discovery in post-indictment federal cases, including general principles, recommendations, strategies, and a case checklist.


The Top Five Things Every Young Lawyer Should Keep In Mind About e-Discovery 

Jennifer Olmedo-Rodriguez In the law, technology affects not only the way lawyers practice and communicate with clients and opposing counsel but also the obligations imposed on clients and lawyers alike as a result of the availability of electronic information.


Electronic Discovery Rules Are Changing: Are You Ready?

Henry R. Chalmers  Are you prepared for a seismic shift in the way you conduct electronic discovery? Well, ready or not, it’s coming—and sooner than you may think.


Drafting Electronic Discovery Requests| Litigation 101

Jakob Z. Norman Although electronic discovery has been authorized by the Federal Rules since 1970, the most seasoned attorneys can get tripped up when dealing with electronic discovery issues. Here's a checklist to help you navigate them.

Keeping Your Data, Not Your Head, In the Cloud

Jason M. Rosenthal More and more businesses, including law firms, are storing their data in the cloud. Knowing the risks can help minimize the figurative storms that can result from the off-site storage and management of data.


2nd Cir. Declines to Require Written Litigation Hold in Every Case

Seth H. Row The ruling appears to countermand the "rule" set out in Southern District Judge Shira Scheindlin's influential 2010 Pension Committee decision.


NY Appellate Court Adopts Federal E-Evidence Preservation Standard

Yitzchak Fogel The Appellate Division, First Department, has become the first New York appellate court to adopt the standard for spoliation originally established in Zubulake.


Avoiding an Electronic Discovery Disaster with Litigation Holds

Elizabeth S. Fenton, Diana Rabeh, and Jonathan M. Shapiro We must advise clients of the triggers for the common-law duty to preserve evidence and assist them in developing practices to ensure that the duty is met when it arises.


An Attempt at an Analytical Framework for Spoliation and ESI Issues

Beatriz Q. Richmond Magistrate Judge Paul W. Grimm issued a detailed and thorough opinion concerning spoliation of electronically stored information.


Pension Committee: Degrees of Culpability and Discovery Sanctions

Jennifer Ide and Angie Fox Judge Scheindlin provides a framework for when acts or omissions in preserving, collecting, and producing documents may breach current standards of care.


Post-Pension Committee Discovery Practice—A Strict Liability Standard?

Justin N. Joy Pension Committee appears to establish a strict liability standard in discovery practice at least as to certain specific discovery missteps.


Zubulake Revisited Six Years Later

Christopher M. Hannan Banc of America is important for its systematic presentation of how litigants should approach ESI preservation and production.


The Evolution of E-Discovery Sanctions

Michael Swarz Companies are sensitive to their ESI due to the possible liability involved, and are constantly seeking ways to negate the possibility that a court may impose harsh sanctions.


Qualcomm v. Broadcom: Lessons for Counsel and a Road Map to E-Discovery Preparedness

Gregory D. Shelton The events in the litigation and the court’s innovative sanction provide strong lessons and strategies for litigation preparedness when dealing with electronically stored information.


 EDiscovery: Preserving, Requesting & Producing Electronic Information

Lisa M. Arent, Robert D. Brownstone, and William A. Fenwick This lengthy article examines the implications of the shift from tangible paper files to an ever-expanding universe of intangible electronic items, including emails, databases, back-up tapes and websites.


Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments

William R. Denny and Elizabeth J. Winslow How does the shift toward electronic information affect litigants and their counsel? Electronic information is more voluminous than paper information and can be stored, and therefore must be searched, in many more locations than paper information.


E-Discovery Sanctions Awarded after Case Is Closed

M. Derek Harris A party’s e-discovery violations may have consequences long after a case is closed. A district judge for the U.S. District Court for the Eastern District of Texas recently granted a motion for sanctions that was filed almost a year after the case settled.

Virginia Court Allows Predictive Coding for Discovery

Roberto Martell Jr., Student, Chicago-Kent College of Law The use of predictive coding—attorney-supervised search algorithms on electronically stored information (ESI)—was sought by the defendant, Landow Aviation. Landow Aviation presented convincing arguments that the use of predictive coding is not only cost-effective, but also drastically more effective than even human document-by-document searching.


District Judge Upholds Ruling on Predictive Coding

Robert M. Redis Esq. On April 25, 2012, Judge Andrew L. Carter, U.S. District Judge for the Southern District of New York, upheld Magistrate Judge Peck’s February 8, 2012, discovery order issued in Da Silva Moore v. Publicis Group, No. 11-CV-1279 (S.D.N.Y. April 25, 2012), permitting the use of predictive coding to search for responsive documents in a discovery request.


U.S. International Trade Commission Proposes E-Discovery Limitations

Norayr Zurabyan Paper files, electronic document storage, legacy servers, backup tapes, email, voicemail, instant messaging: Tracking a company’s ESI and producing responsive data challenges even the most seasoned attorneys.


Party Relieved from Estimated 95-Million-Page Review

Brian A. Zemil The U.S. District Court for the District of New Jersey affirmed a magistrate judge’s order relieving a plaintiff of its agreement to produce documents identified as part of a forensic examination of its computer network, servers, and related storage devices


Federal Bench Begins Coming to Terms with Predictive Coding 

B. Justin Goggins We have written in this space before about the two “celebrity” federal court cases now winding their way toward resolution on whether “predictive coding” e-discovery technology can be used to satisfy a producing party’s obligation to search for documents.


Reasonable Accessibility and the Discoverability of ESI

Gregory M. Boyle, William P. Wallenstein, and J.H. Jennifer Lee This is intended to provide a starting point for litigators and their clients when considering preservation, disclosure, and discovery obligations amid expanding mobile technologies.


Tips from the Ground Floor: Successfully Managing Large Electronic Document Reviews

Elizabeth L. Fine Over the past several months, much has been written about the revised Federal Rules of Civil Procedure Rule that govern the production of electronically stored information. Much of the literature focuses on the substance of the rules and their application.


E-Discovery Collaboration Between Clients and Counsel ...

Courtney E. Ward-Reichard Esq. and Frank Nelson The ever-increasing amount of electronic information means that careful planning, open communication, and efficient workflow are essential through all phases of the e-discovery process.

U.S. International Trade Commission Proposes E-Discovery Limitations

Norayr Zurabyan Many commentators describe the proposal as easy to administer, flexible, and simple.


Pricing Processing in E-Discovery: Keep the Invoice from Being a Surprise

Seth Eichenholtz Processing data in e-discovery means different things to different people, and pricing for processing has followed suit.


Third Circuit Limits Recoverable E-Discovery Costs

B. Justin Goggins The court weighed into a debate on whether broad e-discovery costs are taxable on the bill of costs under 28 U.S.C.A. § 1920 and thus recoverable by the prevailing party.


Reining in E-Discovery

Geraldine Soat Brown E-discovery has become the bête noire of litigation, and not without cause. Searching for electronically stored information (ESI) can be very expensive, and the consequences of not doing it correctly can be serious


Proportionality in E-Discovery: Wishful Thinking?

Charles S. Fax U.S. District Judge Shira A. Scheindlin, of the Southern District of New York, addressed a cluster of e-discovery issues that many federal practitioners had not previously considered.

Oops, It Happened Again: Inadvertent Disclosure under New Federal Rule of Evidence 502

Wayne Morse Jr. New Federal Rule of Evidence 502 is worthwhile reading for courtroom lawyers because it changes the law regarding waiver of attorney-client privilege. Published in Pretrial Practice & Discovery , Volume 17, Number 4, Summer 2009.


Privilege Logs and Inadvertent Waiver: Lawyer Beware

Charles S. Fax Judges often reach differing conclusions in the same case, as attested by the frequency of minority opinions


Inadvertent Disclosure Results in Disqualification of Opposing Counsel

M. Derek Harris Counsel’s review and use of inadvertently disclosed privileged information may be equivalent to opening Pandora’s Box.


District Court Awards Costs for Fees Charged by E-Discovery Vendors

Jason Zack, In an opinion highlighting the expense of modern litigation, Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania recently held that defendants who prevailed on summary judgement were entitled to a substantial award of costs for fees charged by their e-discovery vendors.

The Reliability, Admissibility, and Power of Electronic Evidence

Zachary G. Newman and Anthony Ellis While we have been learning to deal with e-discovery, metadata, email retrieval, and spoliation, litigation lawyers need to remember the basics of evidentiary procedure.


The Forgotten Step in Electronic Discovery: Admissibility

David W. Degnan Counsel and courts have become more and more focused on the interplay of technology and admissibility, including the admissibility of email, text messages, and more.

Managing E-Discovery and ESI: From Pre-Litigation through Trial

The legal landscape, and litigation, have changed markedly in the last decade. Venerable concepts, like the duty to preserve relevant information...


Litigation E-Discovery Package

E-discovery has shaken up litigation across America. Judges are dealing with e-discovery issues unheard of ten years ago.


The Ethics of E-Discovery

John M. Barkett Lawyers are working their way through a new and ever-changing field that is creating significant ethical and malpractice concerns.


E-Discovery: Twenty Questions and Answers

John M. Barkett Civil law practitioners, who do not yet deal with e-discovery in the same sense as common law lawyers must deal with it, may be wondering what the fuss is about.


E-Discovery: A Special Publication of the Section of Litigation (PDF)

Editors: Steven A. Weiss, David Coale     E-Discovery includes articles on e-discovery and litigation holds, rule 26 and 16 conferences, reasonable accessibility...


iWitness: Reining in E-Discovery (PDF)

Geraldine Soat Brown Electronic discovery is more important than ever, but receiving a request for ESI does not necessarily condemn a client to an expensive hunt through long-abandoned formats.


Navigating the New E-Discovery Rules (PDF)

Mary Kary Brown, Paul D. Weiner As technology and the use of electronic information has exploded in recent years, lawyers need to keep up-to-date on the latest rules governing electronic discovery.


6th Annual National Institute on E-Discovery Practical Solutions for Dealing with Electronically Stored Information (Softbound Course Book and Searchable CD-ROM)

The 6th Annual National Institute on E-Discovery Practical Solutions for Dealing with Electronically Stored consists of all-star panels of distinguished professionals that convene for a full day of advanced-level programming to share their knowledge on hot topics in e-discovery.

Using Expert Testimony by Plaintiffs to Oppose Summary Judgment: Part I

Betsy Collins Pay close attention to the rules pertaining to admitting expert testimony in summary judgment briefing.


Technology-Related Ethics Rules Changes Litigators Must Understand

Seth H. Row New changes to the Model Rules of Professional Conduct take into account e-discovery challenges.


U.S. International Trade Commission Proposes E-Discovery Limitations

Norayr Zurabyan Many commentators describe the proposal as easy to administer, flexible, and simple.


New Year Brings New and Revised State-Court Rules for E-Discovery

Tom Allman recently published a guide to state e-discovery rules and hosted a webinar discussing the rules, rulemaking trends, and differences between state and federal rules.


Litigation Holds, Social Media, and Employees' Online Data

Patricia Eastwood, John D. Rue, and Peter Wilhelm Lawyers and courts will be increasingly faced with the challenge of addressing whether, and to what extent, social media "documents" must be incorporated into the discovery process in individual cases.


Avoiding Minefields Associated with Discoverability of Social Media

Damon Thayer and Nayiri Keosseian According to conventional wisdom, the law typically lags about five years behind new technology. In today's rapidly changing world, that rule of thumb might be too generous.


The Seventh Circuit’s E-Discovery Pilot Program

Laura D. Cullison This program signals the judiciary’s interest in finding practical ways to change the adversarial assumptions litigators bring to the discovery process.


Slaying the E-Discovery Beast Through an Effective Rule 26(f) “Meet and Confer”

Brad H. Sysol and Kendra Huff Counsel should use the Rule 26(f) “meet and confer” to engage in an in-depth discussion with the goal of developing a discovery plan that makes sense.


How to Sway Litigators to Embrace the Electronic Realm

Robert D. Brownstone Litigation support managers have long known that the electronic writing is on the wall—or, rather, on the hard drives, back-up tapes, storage devices, web-server logs, databases, and "deleted" files.


Collaborative Navigation of the Stormy e-Discovery Seas

Robert D. Brownstone Judges, litigators, clients, and technologists have on a regular basis been forced to explore and test new methods of fair, thorough, and efficient requests for, and production of, electronic information.


Mastering the Use of E-Discovery Special Masters

George Socha  It’s a safe bet that judges—and parties—will make increasing use of that authority now that e-discovery has become so integral to trial preparation.


One E-Discovery Trap and How to Avoid It

Charles S. Fax Most moviegoers are familiar with the film The Social Network, which chronicles the advent of Facebook and the Winklevoss twins’ lawsuit claiming Mark Zuckerberg stole their idea.


Applying Electronic Discovery in an Arbitrational Setting

Michael Swarz Typically, family-law practitioners are advised by clients that answers to issues in their case will be unveiled with the production of their spouse’s email communications. It then becomes a question of how these email communications can be obtained.


The Limits of Electronic Discovery in Family Cases 

Dolly Hernandez Modern technology has brought a new wave of evidence to marital and family-law proceedings as parties are utilizing electronically stored information (ESI) found on social media websites such as Facebook, MySpace, Twitter, and LinkedIn, along with information stored on computers and cell phones to prove aspects of their case.


Guidelines for Nonparty E-Discovery under Rule 45

Gary M. Pappas  Nonparty subpoenas raise the same important issues relating to the discovery of electronically stored information (ESI) as do initial disclosures and requests for production between the litigants. 


Ten Tips for Success in Cross Border E-Discovery    

Trevor Jefferies and Alvin Lindsay Pitfalls for the unwary multiply for the corporate party client required in U.S. litigation to produce data maintained in another country. Here are ten tips to consider when ESI from abroad is required for U.S. litigation.


E-Discovery Resource Center 

A comprehensive aggregation of valuable resources, links, and articles relating to e-discovery

Judge Scheindlin Shines a Light on Metadata Production

Som P. Dalal The foremost judicial authority on ESI serves up the minimum requirements for production protocols.


Pension Committee: Degrees of Culpability and Discovery Sanctions

Jennifer Ide and Angie Fox Judge Scheindlin provides a framework for when acts or omissions in preserving, collecting, and producing documents may breach current standards of care.


The Evolution of E-Discovery Sanctions

Michael Swarz Companies are sensitive to their electronically stored information due to the possible liability involved and are constantly seeking ways to negate the possibility that a court may impose harsh sanctions.


A Litigator's Guide to Working with E-Discovery Consultants

Matthew Prewitt The routine, low-cost preservation, collection, and review of electronically stored information envisioned by the drafters of the 2006 amendments remain elusive goals for most litigants, and the frequent sanctions battles over e-discovery have only heightened the stakes for in-house counsel.


EDiscovery: Preserving, Requesting & Producing Electronic Information

Lisa M. Arent, Robert D. Brownstone, and William A. Fenwick This lengthy article examines the implications of the shift from tangible paper files to an ever-expanding universe of intangible electronic items, including emails, databases, back-up tapes and websites.


Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments

William R. Denny and Elizabeth J. Winslow One of the primary purposes of discovery is to help get a case that a litigant and its attorney are determined to win ready for a trial. Part of winning a case is telling the right story, and discovery is a part of putting together that story.


Qualcomm v. Broadcom: Lessons for Counsel and a Road Map to E-Discovery Preparedness

Gregory D. Shelton On January 7, 2008, Magistrate Judge Barbara L. Major issued the latest chapter in the Qualcomm v. Broadcom dispute. Judge Major was tasked with determining whether Qualcomm and its counsel should be sanctioned for discovery violations that occurred during the litigation of a patent dispute between the two parties.