Legal Technology News - E-Discovery and Compliance Blog

Preservation & Legal Holds

August 02, 2012

Can Courts Get a Grasp on Ephemeral Data?

Hand_sandHow should courts handle requests for data "that require extraordinary measures to preserve and collect?" Brian Esser and Judy Selby of Baker Hostetler examine two recent cases in Tennessee and New York involving the recovery of Internet browser histories, one of which required the services of an expert to create forensic images of a hard drive -- a pretty costly procedure.

Read the article on LTN online and ask yourself what you might do when your duty to preserve extends to temporary Internet files or the recovery of files from a hard drive's slack or unallocated space.

Image by Clipart.com

June 27, 2012

FJC Pocket Judge Update

Fjc_logo128The Federal Judicial Center -- the research and education agency of the federal judicial system -- has published the second edition of its influential booklet, Managing Discovery of Electronic Information: A Pocket Guide for Judges, by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins. The 48-page publication updates the previous 2007 edition, and can be downloaded free from the center's website. It covers a range of topics, from explaining the difference between conventional paper discovery and electronically stored information, to providing tips on a judge's role. The booklet also includes a five-page glossary, mostly derived (with permission) from The Sedona Conference Glossary: E-Discovery & Digital Information Management (3d ed. 2010).

While reaction has been largely positive, there are some rumblings of discontent about the new publication. Read the full story here.

What do you think about the update?

Image: Federal Judicial Center.

May 23, 2012

The 24/7 Andrew Peck Show

Greetings from LegalTech West Coast in relatively-smog free and sunny Los Angeles. Day one (Tuesday May 22) was full of energy and standing-room only presentations with, as usual, tons of e-discovery in the seminar rooms (and on the busy exhibit hall floor). It's not too late to stop in for Day 2 (today, May 23); it's at the downtown Westin Bonaventure and one day tickets are available if you want some education, demos, and CLE credits.

Topic A among the L.A. EDD crowd, as expected, is the closely-watched Da Silva Moore case, where U.S. District Court Magistrate Judge Andrew Peck has ordered the use of computer-assisted coding (aka predictive coding). Law Technology News is one of those closely-watching, our most recent story is here.

NelsonOn the blawg-o-sphere, attorney Sharon Nelson, (left) president of Sensei Enterprises, has been monitoring the DSM sideshow in her ride the lightening blog. See her latest post, "Da Silva Moore: EDD's Version of Keeping Up with the Kardashians," is  here.

Peck-5-17-12-bPeck and his Second District colleague Lisa Smith gave a terrific program Thursday evening at the New York City chapter of Women in Discovery -- demonstrating his trademark wit and substantive knowledge. See "Federal Judges Preside Over Women in E-Discovery Meeting."

But Tuesday's LTWC keynote address reminded us that Peck isn't a one-trick pony judge doin' nuttin' but e-discovery 24/7/365. (He did win LTN's 2011 Champion of Technology Award). Peck's turf also has included overseeing another matter that kept lawyers Keynote1chewing their fingernails -- to say nothing of anybody with a dollar in a bank. Kevin Genirs (left). In his keynote address yesterday, "2008 v. 2012: Lessons from the Lehman Brothers," described how Peck oversaw the frantic, sleep-deprived, mega-lawyered transactions under excruciating deadlines that ultimately resulted in the sale of Lehman Brothers ("for the price of our building") to Barclays, praising Peck for recognizing the global impact of the sale on the stability of financial markets, and Peck's non-stop efforts to get the deal consummated. Genirs, who had been general counsel, investment banking, at Lehman's, was one of the 10,000 Lehman workers who had new jobs with Barclays when the sun rose the next day.

Later this morning, check out www.lawtechnologynews.com for my colleague Michael Roach's  report on "Under Fire: Defending and Challenging Technology-Assisted Review," which featured Irell's Tom Werner, O'Melveny's Jeffrey Flower, Oracle's Pallab Chakraborty, and moderator Andrea Gibson, from Kroll Ontrack (the sponsor of the Litigation Technology Track." Yes, DSM and Peck were front-and-center in the discussion!

Meanwhile, you can keep up with all the substance and occasional drama about Peck on our website's home page www.lawtechnologynews.com, and its E-Discovery/Compliance "channel" -- and right here at EDD Update. Onward to Day 2! 

Update 5/24: Oooops. Who knew there were two Judge Pecks in the Southern District of New York! Actually, many -- and Silicon Valley consultant Mark Michels, a member of LTN's editorial advisory board, was the first to advise me that I goofed. It wasn't Andrew Peck, it was Judge James Peck, of the U.S. Bankruptcy Court. But you get my point.

P.S. Here's Michael's story 

Photos: Monica Bay, except for Sharon Nelson (courtesy of ride the lightening)

April 06, 2012

FRCP Preservation Rule Update

Exploration400Today's Law Technology News article, "Federal Judicial Advisory Committee Ponders New E-Discovery Rules," reports on the Civil Rules Advisory Committee’s March 22-23, 2012, meeting in Ann Arbor, Mich. Of particular interest to EDD practioners is the work of the discovery subcommittee on a uniform rule for spoliation sanctions.

The preservation debate is intense. The Department of Justice tells the subcommittee that any change to the preservation rule is premature, while the Lawyers for Civil Justice urgently call on the subcommittee to move forward aggressively on broad-based discovery and preservation rules reform.

The formal process requiring Supreme Court approval and Congressional notice takes time. See Patrick Oot's "Rules Road Map a Quick Guide to How E-Discovery Rules Are Updated." Even if the committee is able to reach a consensus and resolve the considerable number of substantive issues identified by the subcommittee and commentators, a spoliation sanctions rule would not likely be effective before December 2015.

Image by Clipart.com

January 27, 2012

True Grit: Finding the Right EDD Formula

LTNMagazineWith LegalTech New York on our doorstep, we've putting our February issue of Law Technology News online a few days early. Around 5 p.m. EST tonight, it should be "live" at www.lawtechnologynews.com (scroll down to the "LTN Magazine" Box).

Check out our cover story about how BigLaw is trying to find just the right formula for handling e-discovery. We profile efforts at Littler; Winston & Strawn; WilmerHale; Fenwick; Pillsbury; K&L Gates; and several other firms. Littler's Paul Weiner is our "cover boy"!

Our EDD Showcase also includes Cecil Lynn III's annual Year in Review, analyzing the most important 2011 EDD opinions; Patrick Oot's Rules Road Map, explaining how EDD rules are amended:  and my report from Georgetown (yes, I know that was a while back, but the conference was the day after we closed the December issue!) And of course, Craig Ball's column, addressing how to cure over-preservation.

The print edition will be at the show — if you see me, I'll show you the unintended "Easter Egg" that made me laugh out loud when I got the magazine today. Hint: it's on page 75.

You can also listen to an interview with Weiner and Winston's John Rosenthal, on the February edition of my Law Technology Now podcast, which is already live at www.lawtechnologynow.com.

Cya at the Hilton New York!

January 10, 2012

Dodging a Bullet (For Now)

No Harm, No Foul for Data Destruction: Check out "The Risks of Failing to Preserve Patent Prosecution Files," an article I wrote for LTN's website. It discusses a unique patent litigation remedy for spoliation claims. In Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, the plaintiff delayed filing its lawsuit for more than six years, raising a laches defense that would have significantly limited patent damages. The defendant claimed it suffered “evidentiary prejudice” because the patent prosecutor destroyed his files. The court ultimately rejected the laches defense.

The plaintiff dodged a bullet but risked a substantial damages limitation because the patent prosecutor destroyed his files. Metso is currently on appeal to the Federal Circuit.

December 21, 2011

Plaintiffs' Duty to Preserve

Littler shareholder Paul Weiner discusses the plaintiffs' EDD preservation obligations, in this article from our sister publication, the National Law Journal. 

"While the focus of electronic discovery is often on the defendant's information technology systems and data sources, litigants should not lose sight of the fact that e-discovery is a two-way street, and obligations apply just as forcefully to plaintiffs — who often anticipate litigation well in advance of any defendant."

December 14, 2011

Reader Query re: Email Holds

EmailbombWe were queried by a reader, who prefers to remain anonymous:

"I have a question for you. I’ve been looking for a survey or commentary addressing prevalent corporate practices insofar as email preservation with regard to system cleanup — can’t find much. If you know of anything (besides reported opinions), let me know.

Is the standard corporate legal hold preservation practice to:

(a) Suspend auto email system cleanup for ALL legal hold custodians.
(b)Suspend auto email system cleanup for some legal hold custodians — such as key custodians or in more complex cases.
(c) Not suspend auto email system cleanup at all except in bet the company cases.
(d) Not suspend auto email system cleanup ever for any custodian or case?  Or do you find that corporations are all over the board with their thinking in this regard?"

EDD Update denizens, fire away!

Image: Clipart.com

December 13, 2011

Pippins Order Highlights Preservation Burdens

HCBWriting in the Toal,jpgNew York Law Journal Dec. 12, H. Christopher Boehning (far right) and Daniel Toal (near right) discuss the Pippins. v. KPMG case and Magistrate Judge James Cott's decision, suggesting that "the resolution of KPMG's motion for a protective order has potentially fair-reaching implications and threatens to radically alter the scope of ESI preservation obligations."

Read it here. 

Images: New York Law Journal

December 06, 2011

Reset — or Regress — to Neutral?

ResetIn our December issue of Law Technology News, Sutherland Asbill & Brennan partner Robert Owen wrote  "Reset to Neutral" — arguing that EDD preservation rules (and judicial interpretation of those rules) have become too vague and too burdensome. Owen proposes five new rules to remedy the perceived problem.

Today, on the LTN website, Milberg's Henry Kelston, senior counsel and a member of the firm's E-Discovery Committee, counters, with "Regress to Neutral." Milberg suggests that Owen's proposal would reset e-discovery back to 1937 when there were no rules, and "litigation outcomes were often dictated by gamesmanship and ambush rather than the merits of the case.

What do you think? Dive into the comments below!

Want more? Listen to the December edition of our Law Technology Now podcast where I interview Owen, at www.lawtechnologynow.com.

Video with Owen here

Read my commentary here

Image: Clipart.com

December 02, 2011

The Elephant in the Patent Courtroom

ElephantMark Michels says efforts to streamline preservation in patent cases is a good start, but much more is needed. Read the story here.

 

Image: Stephen Hayes

Reset to Neutral

Robertowen2Sutherland's Robert Owen is among the defense lawyers who are chafing about "overburdensome" and vague preservation requirements. In December's Law Technology News magazine, "Reset to Neutral," Owen argues for five new preservation rules that would simplify and clarify legal hold triggers -- and, he argues, reduce skyrocketing costs for corporate defendants.

Read it here.

Image: Monica Bay

December 01, 2011

The Tyranny of the Outlier

Intimidate

In his December column in Law Technology News, Craig Ball addresses over-production demands and how to combat them.

"Cooperation in e-discovery doesn't mean bowing to your opponent's demands for over-preservation. Instead, cooperation entails communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands … even if they won't do so."

Read the article here.

P.S. Today is the fifth "birthday" of the amended  EDD federal rules. Blow out the candles with Craig Ball here.

Image: Clipart.com

November 15, 2011

Rader Is Becoming a Rock Star

Rader_randall1
Judge Randall Rader appears to flying to the e-discovery spotlight like a hungry moth in July. Ginny LaRoe at The Recorder  chronicles his speech at the recent conference of the U.S. Court of Appeals for the Federal Circuit and U.S. District Court for the Eastern District of Texas. 

He recently announced a new advisory order that calls for strict limits on e-discovery in patent suits, that could "cost accused infringers dearly even on bogus claims," LaRoe reports.  

Our Mark Michels first covered Rader in "The Elephant in the Courtroom," last month on our LTN website (and in the coming December issue of our print magazine).

LaRos says at least one California judge has jumped on the bandwagon:

With the ink on the advisory order barely dry, U.S. Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California issued an order curtailing email production in a patent infringement suit pending in his San Jose courtroom, becoming one of the first judges in the country to buy into Rader's vision.

The move caused a buzz among patent litigators waiting to see if the approach will rein in e-discovery costs, or prove unworkable and even lead to more venue shopping.

Grewal's Nov. 2 ruling creates a test case for discovery curbs, and further solidifies the young — and still green — magistrate's status as a bright light on the Northern District bench.

"I think it's both a courageous move," Rader said in an interview after word of Grewal's ruling made its way to Rader's Washington, D.C., chambers, "but also just a wise application of an available tool to make his case more efficient."

Read the full Recorder story here.

Video: The role of IRP in maintaining an innovative economy here.

Image: Roberto Westbrook

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