e-Discovery

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Earlier this year, I predicted that 2016 would be a year of increased focus on e-discovery from cloud-based sources and postulated that many organizations would demand better e-discovery solutions and increased cooperation from cloud providers. Industry experts agreed. So, what can proactive companies do to ensure that their cloud providers are on board for e-discovery purposes? Much can be accomplished before the contract is even signed. For most providers, e-discovery is not their primary concern so their form agreements are unlikely to address with any degree of specificity key components that could make compliance with discovery requests smoother. While there is no one-size fits all answer, trying to get specific commitments incorporated into the provider agreement will go a long way towards streamlining compliance.
Continue Reading Considering E-Discovery in Cloud Contracts

The lament that law schools do not adequately prepare new lawyers for the actual practice of law is not a new one.  The refrain, however, seems more pronounced as the day-to-day practice of law becomes increasingly intertwined with technological concepts that have little place in most law school curricula.  This problem is particularly paramount in…

While 2015 will likely be remembered as the year the Federal Rules of Civil Procedure were substantively overhauled to resolve many persistent issues related to e-discovery, 2016 quietly marks ten years since the Federal Rules were amended to expressly recognize, for the first time, that electronically stored information (ESI) was equally as discoverable as its…

The recent amendment to Federal Rule of Civil Procedure 37(e) makes clear that document preservation is not something to be taken lightly.  Issuing a litigation hold notice is the first, crucial step in the preservation process.  A litigation hold notice is a document, usually sent by counsel, that alerts individuals likely to be in possession…

“Going Dark” refers to law enforcement’s lack of technical ability to intercept and access communications and information. In response, the Department of Justice (DOJ) is using a law from the 1700s, the All Writs Act, which grants courts the power to issue “necessary or appropriate” writs to force cellphone manufacturers to assist it in extracting…

Back in the days of paper discovery—when productions came in bankers’ boxes and document reviews involved paper cuts—litigators would attempt to try to gain a tactical advantage by “burying” opponents under mountains of paper. The modern version of this litigation tactic is the “data dump.” Data dumps involve responding to discovery requests or subpoenas by…

There is a significant nexus between data privacy and security and e-discovery that grows more pronounced as the volume of data generated multiplies exponentially and the ability of e-discovery tools to collect and process that data grows increasingly sophisticated. Specifically, the e-discovery process presents a very real risk of inadvertently compromising Personal Identifying Information (PII).…

As U.S. litigators and U.S. courts begin to gain some level of comfort with advanced e-discovery practices, new challenges have emerged in the form of cross-border discovery. While most U.S. attorneys are aware that there are challenges associated with collecting data from individuals and entities in Europe and Asia, they tend to focus primarily on…

News that Hilary Rodham Clinton routinely used her private email account for official government business while she was Secretary of State has put e-discovery—and the mingling of  personal and business emails—on the radar of politicians and business people alike.

The State Department sought emails from Clinton in connection with its investigation into the killing of U.S. Citizens in Benghazi and Libya in 2012.  As part of the investigation, the State Department sent out email preservation notices and requests to Clinton, among others.  It soon became clear that Clinton, like every Secretary of State using email before John Kerry, had used her private email account to conduct her government business.  
Continue Reading Clinton case highlights importance of planning ahead for e-discovery