E-Discovery

2013-01-29 12:00:00 AM

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Creating an E-Discovery Model in a Company or Law Firm
By Michael Boland
The Legal Intelligencer
January 29, 2013

A few years ago, many corporations would leave the heavy lifting of e-discovery to outside counsel and vendors. Additionally, many of those outside counsel firms would do the same, playing more the role of a broker than a participant. But, increasingly, both corporations and law firms are creating structured groups or departments to effectively handle e-discovery. Read More

Corporate Control of Personal Communications
By David R. Cohen, Timothy J. Nagle and Caitlin R. Gifford
The Legal Intelligencer
January 29, 2013

 Businesses are facing several new realities. Their customers and clients expect them to go beyond "traditional" forms of communication into social media. Their employees prefer or even expect to be able to communicate with family, friends and others via personal email, social media and instant messaging or texting while in the workplace. And the ubiquity of mobile devices such as tablets or smartphones has caused some companies to consider implementing "Bring Your Own Device" (BYOD) policies to cut costs and increase employee satisfaction.  Read More

Dropbox and the Impact of Personal Cloud Storage on ESI
David Walton and Rachel Fendell Satinsky
The Legal Intelligencer
January 29, 2013

 The cloud is really nothing more than computer space that is accessed via the Internet. So, when someone says that they are "storing data on the cloud," all that really means is — rather than storing their information on their own computer that is in their physical presence — they are renting space on a computer to store their data. This storage is then available from anywhere the user can access the Internet. Read More

A Litigators Guide to Social Media Discovery in Civil Actions
Niloy Ray, Aaron Crews and Paul Weiner
The Legal Intelligencer
January 29, 2013

As social media inundates our daily lives, discovery requests seeking social media ESI grow increasingly common in civil litigation. However, because the technology is still relatively new, parties and courts are often confused or apprehensive about the discoverability of this data. Luckily, the application of ?traditional discovery principles clears this fog, revealing a fundamental truth: Discovery requests targeting social media data do not require a heightened justification or showing. Read More

E-Discovery Supporting Old-Fashioned Sanction Motions
By Mathieu J. Shapiro
The Legal Intelligencer
January 29, 2013

Beginning with U.S. District Court Judge of the Southern District of New York Shira Scheindlin's landmark series of decisions in Zubulake, the specter of e-discovery sanctions seemed to hang like a cloud over civil litigation and civil litigators, threatening the unwary with an avalanche of draconian penalties for not understanding the technical and ever-expanding world of ESI. Read More

In an FCPA Defense, Understanding Search Is Critical
By John Tredennick
The Legal Intelligencer
January 29, 2013

For companies that do business outside the United States, the good news is that the number of enforcement actions under the Foreign Corrupt Practices Act tapered off over the last two years, after a dramatic surge in cases from 2007 to 2010. Read More

Bits and Bytes: What Forensic Analysis Can Reveal
By Philip Yannella
The Legal Intelligencer
January 29, 2013

In the age of CSI, many civil litigators are aware that the secrets to unlocking a case may be buried deep within a party's computer, in the form of a deleted file, an incriminating Google search, or tell-tale cookie. Read More 

E-Discovery Cost-Shifting Approaches Get New Attention From Courts
Scott J. Etish and Stephen J. Finley
The Legal Intelligencer
January 29, 2013

The question of e-discovery-related cost-shifting typically arises in two settings: (1) when a party seeks to shift the cost of electronically stored information production during litigation to the requesting party pursuant to Fed.R.Civ. P. 26(b)(2)(B); and (2) when a prevailing party seeks to recover its costs after judgment has been entered in its favor pursuant to Fed.R.Civ.P. 54(d). This article will discuss both scenarios as they have been addressed in two recent cases – Boeynaems v. LA Fitness Int'l, 2012 U.S. Dist. LEXIS 115272 (E.D. Pa., Aug. 16, 2012), a decision involving cost-shifting prior to class action certification, and Race Tires America v. Hoosier Racing Tire, 674 F.3d 158 (3d Cir. 2012), in which the U.S. Court of Appeals for the Third Circuit addressed applications to recover e-discovery-related costs under 28 U.SC. §1920. Read More

Federal Rule of Evidence 502: An Oft-Unopened Gift
By Jana Landon
The Legal Intelligencer
January 29, 2013

When Federal Rule of Evidence 502 was introduced as legislation in 2007, it was hailed by members of Congress, judges and practitioners as a solution to the ever-increasing costs associated with electronic discovery. As the first rule addressing evidentiary privilege passed since the inception of the Federal Rules of Evidence, it resolved and clarified several inconsistent decisions amongst the circuits regarding inadvertent disclosure of privileged material. Despite the potential of this rule to bring cost savings and sanity to a variety of discovery situations, however, practitioners and judges have been slow to incorporate its language into their agreements and orders. Any producing party — especially in cases with any level of electronic document review — should strongly consider using this gift from the judiciary and Congress as a safeguard in case of inadvertent disclosure.  Read More