The last time a preservation issue caused this much commotion, the Big Four accounting firm KPMG was fruitlessly disputing a court order forcing it to save 2,500 hard drives that had been used by former employees.
The plaintiffs in the Manhattan federal case, which has produced the first order approving the use of predictive coding, filed an array of legal arguments and 500 pages of supporting exhibits on May 10th seeking to strengthen their argument that magistrate Judge Andrew J.
Though the ruling by US magistrate Judge Andrew J. Peck approving the use of predictive coding was upheld by district Judge Andrew L. Carter on April 27, the viability of the order hinges on whether Peck remains as magistrate in the contentious case.
US magistrate Judge Andrew J. Peck, of Manhattan, who in February became the first judge to endorse computer assisted review for e-discovery work, had earlier told the defendants from the bench that they “must have thought they died and went to Heaven when this case was referred to me.”
The ink had not dried on the landmark e-discovery protocol setting ground rules for the management of ESI in federal criminal cases when the US Department of Justice moved to dismiss charges against all the defendants in a high-profile Foreign Corrupt Practices Act case known as “The Africa S
Federal magistrate Judge Andrew J. Peck, in Manhattan, has refused to recuse himself in the controversial e-discovery case in which several professional women sued their former employers for gender discrimination in February 2011. The women have mounted a heated challenge to Peck’s mandate that "predictive coding" serve as the computer-assisted technology used in the case.
The landmark status of Da Silva Moore, the Manhattan federal case captivating the e-discovery community, stems from the court’s treatment and implementation of the computer-assisted review process.
On Monday, the plaintiffs in the da Silva Moore gender discrimination case that has caused so much commotion in the e-discovery field leveled charges against Manhattan federal magistrate Judge Andrew J.
In a decision sure to weigh heavily on how US courts allocate or tax e-discovery costs, a three-judge panel of the US Third Circuit Court of Appeals today disallowed $335,000 in e-discovery costs the losing plaintiff in the Race Tires America case had been ordered to p
It was an oral argument that could have taken place in 53 jurisdictions in the United States. It is a harbinger of things to come in the states that have yet to take the e-discovery plunge.
The long, sometimes angry battle for the return of privileged documents it says its former attorneys at McDermott Will & Emery wrongfully disclosed grinds on expensively for J-M Manufacturing.
J-M Manufacturing Co., which last June filed the first lawyer e-discovery malpractice lawsuit against the global law firm McDermott Will & Emery, is locked in a prolonged, expensive battle in Los Angeles federal court to recover thousands of privileged documents it says the firm wrongfully disclosed.
Florida, the fourth largest state in population and number of lawyers, will soon have, for the first time, e-discovery rules for its state courts. The product of a long process in which the Florida Bar sought the views of urban and rural practitioners and judges statewide, the proposed rules are closely based on the strict federal e-discovery rules, but have important distinctions.
It was inevitable. The drumbeats were getting too loud. The federal criminal courts were beckoning. Electronic information in criminal cases could no longer wait for rules.
KPMG, the giant global Big Four firm, is facing a class action in the federal district court in Manhattan by former employees that could have long-lasting and extremely costly consequences for every company and firm that is defending a multi-plaintiff case.
It is buried in the last paragraph of two-page instructions, but the stipulation in the Delaware Court of Chancery’s e-discovery guidelines is headline material in the cases where it is invoked.
There are only about 1,300 civil and criminal cases filed each year in the federal District Court in Delaware, but its influence reaches far beyond its Wilmington courthouse.
J-M Manufacturing Co., the Los Angeles company that eight months ago became the first client to sue its lawyers for e-discovery malpractice, continues battling the consequences of the firm’s alleged misconduct. However, its present related skirmishes are being fought in a different court against different parties.
Prominently displayed on courtrooms walls throughout the United States is the statement, “We who labor here seek only the truth.” In the Pittsburgh federal court, and possibly other courts, that could probably be amended to say, “We who labor here seek only the truth that is affordable.”
A federal law that allows a US district judge or clerk of court to "tax costs" lists types of expenses that may be included in an order assessing costs against a party.
PhoneDog LLC, a South Carolina company that compares the performance of mobile phones, has sued former employee, Noah Kravitz, alleging that he is harming its business by continuing to use a Twitter account that he started while he was an employee.
This is the second and final part of our review of the major e-discovery developments in 2011, according to ACEDS. To read Part I of this series, click here.
In this article, we explore the power and use of social media as an investigative tool and as a pathway to hacking and fraud. You will learn how: • Online, publicly-accessible channels can expand the scope of legal requests for records, • Facebook profiles tracked in a matrix can create new investigative leads,
There is a new stimulus package coming out of Washington, and technology vendors, consultants and other third-party service providers are applauding wildly, but discreetly. They offer services that help in the collection, production, storage, review and maintenance of electronic records.
It does not use the term "e-discovery" in its 941 words, but the Presidential Memorandum issued by President Barack Obama on November 28 will have a major impact on the thousands of cases in which the United States government is involved each year.
The old adage, "To the victor belongs the spoils," is becoming a fixture in US federal courts when it comes to losers in a case paying the winners’ e-discovery bills. Regularly, court clerks and federal judges, as they are empowered by a law to do, are taxing large sums for e-discovery expenses that are coming close to hitting mid-six figures.
Dean Boland is several things – a self-described computer expert, a blogger, and the fourth successive attorney to represent Paul Ceglia, who filed a federal suit in June 2010 asserting ownership of half of Mark Zuckerberg’s multibillion dollar Facebook empire.
Lacey Prewitt, a five-foot-two, 70-year-old lung cancer survivor, paints a bleak picture of a winter afternoon in a lawsuit against the US government filed in May.
The mushrooming scandal surrounding the allegations of serial child abuse by former Penn State football coach Jerry Sandusky will produce countless lawsuits against countless defendants by a still-unknown number of plaintiffs.
Document review is still the most expensive, time-consuming, and resource intensive aspect of e-discovery, but the technology employed to automate what has long been done by a fleet of reviewers is quickly becoming the industry norm.
Isaiah Lester’s slain wife was sitting in the passenger seat when an Allied Concrete truck carrying 36,000 pounds of cement slammed into his Honda Accord on June 21, 2007. The wrongful death suit he filed against Allied and truckdriver William Sprouse in the Virginia Circuit Court in Charlottesville has proved to be another ordeal of reckless conduct.
Imagine a case in which Company X, the manufacturer of Product Y, is engaged in a legal struggle with an adversary that is gathering records the company has requested for litigation. Suppose the adversary has instructed key witnesses to preserve essential documents, but in its preservation notice failed to mention two things: Company X’s name and the name of its product.
Passing the bar exam is not the biggest challenge aspiring attorneys fresh out of law school face these days. Finding a job or creating their own is just as tough.
Imitation may be the sincerest form of flattery, but Apple doesn’t feel complimented by Samsung’s alleged replications. The plainly and starkly expressed feelings of both companies are producing patent lawsuits that are increasingly bitter. At the heart of the dispute are electronic records abroad that are alleged to have been tampered with, and may be bound by Korean privacy laws.
Nearly five months after it was filed and still bouncing between courts, the groundbreaking e-discovery malpractice case brought by a Los Angeles corporation against its former lawyers, McDermott Will & Emery, is headed back to the Los Angeles superior court where it started. The groundbreaking case, which was filed by J-M Manufacturing Co.
Paul Ceglia was already fighting an uphill battle when he picked a fight with the founder of Facebook and his fleet of attorneys at Gibson, Dunn & Crutcher.
Bernard L. Madoff, who perpetrated his $65 billion Ponzi fraud over 20 years with specialized databanks and sophisticated computer programs to churn out phony financial records and con sophisticated, well-educated "investors," is about to witness the remnants of his amazing scheme put under the glare of e-discovery and specialized "e-data rooms."
E-discovery has not been kind to the Justice Department lately. It is locked in a heated battle over electronic evidence with Honeywell International in a high-profile False Claims Act case in which the government contractor is accused of producing shoddy body armor.
Less than one document in 10,000 in a typical case makes its way to a trial exhibit list. Email appears even less frequently according to a study cited by US District Judge Randall Rader, of the Eastern District of Texas, in a speech to his Loan Star colleagues last week.
Lawyers at the US Department of Justice are using an e-discovery equivalent of the grade school plea, "Teacher, the dog ate my homework" or "The devil made me do it." Under the gun in a high-impact, high-stakes False Claims Act case for bungling its e-discovery duties, the department is blaming an outside vendor, Labat-Anderson, in an attempt to escape severe sanctions its adversary, Honeywell
When Isaiah Lester posted to his Facebook account a picture of himself wearing an “I [heart] hot moms” t-shirt, with beer in hand, he never expected it to compromise the outcome of a wrongful death lawsuit on behalf of his slain wife, or cost him half the $8.5 million that a Charlottesville jury awarded him.
In many ways, Florida is the perfect storm of the United States legal industry. It has close to 90,000 licensed lawyers. Most of the Fortune 1000 companies have a presence there because it is the launching pad to Latin America in addition to having the fourth-largest population of any state.
Should losers in a case pay the cost of e-discovery for both parties? This is the question before the US Third Circuit Court of Appeals in the case Race Tires America Inc, et al v. Hoosier Racing Tire Corp, et al.
After three document reviews in four years, supervised by two mega law firms, one of which the client has sued for e-discovery malpractice, J-M Manufacturing Co., of Los Angeles, is trying to get its adversaries to return 3,900 privileged documents that were erroneously turned over in discovery in a massive False Claims Act case.
Lawyers and their organizational clients in the e-discovery era have long entrusted valuable information and data pertinent to discovery to a wide variety of third-party service providers. They include everything from paper copiers to sophisticated technology to consultants and legal staffing firms.
After many months of contentious exchanges with 150 plaintiffs in a huge False Claims Act case set for trial in December, J-M Manufacturing, the Los Angeles company that is in the midst of nightmarish litigation on two fronts, is now seeking court intervention to retrieve 3,400 privileged documents it says McDermott Will & Emery wrongfully produced.
As fears over e-discovery legal malpractice grow in the wake of the first public case against lawyers, in Los Angeles, the transition to digitized patient records in the medical field is reshaping medical malpractice litigation and creating new malpractice and negligence pitfalls for lawyers, healthcare providers and insurance companies.
In the banking and anti-money laundering field, the standard mantra is KYC, which stands for Know Your Customer. In the e-discovery arena, lawyers, litigation support staffs, technology vendors and consultants might be well advised to also adopt the KYC mantra. But, in their case it would stand for Know Your Clerk.
If Frank Gonnello is any indication, US law schools emphasize e-discovery with all the initiative and resources demanded of the complex realities of 21st century litigation.
If Frank Gonnello is any indication, US law schools emphasize e-discovery with all the initiative and resources demanded of the complex realities of 21st century litigation.
A procedural rule requiring parties to name anyone that has a “pecuniary interest” in the outcome of a case has caused the attorneys for McDermott Will & Emery to name the Attorney’s Liability Assurance Society, Inc. (ALAS) as the insurer that stands to pay some or all of the damages resulting from the e-discovery malpractice that has been alleged by a former client of the law firm.
A week after removing from state to federal court the landmark case in which it faces accusations of e-discovery malpractice by a Los Angeles manufacturing company, McDermott Will & Emery has moved to dismiss the case. Through the outside law firm it has hired, McDermott paints a different picture of its actions than that depicted by its former client, J-M Manufacturing Co.
Recent federal cases taxing hefty e-discovery costs on the losing party, usually the plaintiffs, underscore the “winner-take-all” scenario resulting from the federal law that allows the "taxation of costs" and Rule 54 of the Federal Rules of Civil Procedure, allowing the "prevailing party" to recov
Those who have been wondering if the statutory award of e-discovery costs to the prevailing party at trial in federal cases survives reversal of the judgment on appeal can find an answer in a decision and opinion this month by the US Court of Appeals for the Federal Circuit in a patent dispute.
With two recent distasteful episodes with big law firms under its belt, including dismissing and suing one for e-discovery malpractice (McDermott Will & Emery) and witnessing the disqualification of the other (Sheppard Mullin) for simultaneously representing an opposing party in the False Claims Act case it faces, who could blame J-M Manufacturing Co.
The lawsuit that charges McDermott Will & Emery with committing e-discovery malpractice has taken another abrupt turn. On Friday, August 12, the landmark case was removed from the California Superior Court in Los Angeles to the federal court in the same city, which is in the Central District of California.
This article discussing the US Justice Department's attempt to bolster its e-discovery capabilities quotes ACEDS.org. To read it, please click on the external link to MainJustice.com.
Bank of America is having its share of troubles these days. Like many of its colleagues in the financial sector, it has suffered huge losses in mortgage claim settlements, and is contending with a plunging stock price, souring global markets and capital dilution.
The False Claims Act charges against Honeywell International that the US Department of Justice filed in September 2008 are going to have to wait until at least April 2013 to be tried because the department has asked for, and been granted, a long continuation to comply with its e-discovery responsibilities.
The role of contract attorneys in document reviews has captured the attention of the e-discovery community as a result of the malpractice lawsuit against McDermott Will & Emery by a client.
To the many buzzwords that now include “phone hacking” and “police bribery,” the scandal that threatens the media empire of Rupert Murdoch and the UK government of David Cameron now adds to its lexicon the phrase, “reasonably anticipated.”
If the US Department of Justice litigators who are trying the high-stakes False Claims Act case against Honeywell International have not encountered a federal magistrate judge who knows e-discovery like the back of his hand, they are about to meet one.
Seth H. Row, Parsons Farnell & Grein LLP, Portland, OR
Thursday, July 28, 2011
Wading into the debate over a party’s obligation to preserve evidence and adding to the tab of a businessman already in financial disarray, the Delaware Supreme Court on July 20 upheld $3.2 million in sanctions against an executive who had cleared his laptop’s unallocated space and deleted evidence in a long-standing lawsuit over control of the company he founded.
The e-discovery malpractice case against McDermott Will & Emery, which has captured the attention of a large part of the e-discovery community because it exposes fears that have hovered near the surface of the booming field, has taken an ominous turn and brought into the open other well-known firms that played supporting roles in the case that is at the bottom of this seminal battle.
Stifling the e-discovery pursuits of jailed Ponzi scheme suspect Darren Berg, federal Judge Richard A. Jones in the Western District of Washington has denied Berg’s request to be released from prison, citing flight risks and adequate access to discovery materials in prison.
As electronically stored information (ESI) becomes commonplace even in routine litigation, contract attorneys that are assigned to review thousands -- sometimes millions -- of electronic documents to comply with discovery obligations in litigation increasingly operate in a technological environment fraught with potential perils.
For the third time, J-M Manufacturing Co., of Los Angeles, which sued McDermott Will & Emery last month for e-discovery malpractice, must hire a new law firm to defend a federal False Claims Act case brought by 150 plaintiffs that is set for trial in December.
In a further instance of e-discovery’s growing importance in criminal cases, Ponzi scheme suspect Darren Berg, the onetime Seattle financier behind the defunct Meridian Mortgage investment fund, has asked to be released from custody so he can sort through a colossal store of financial e-documents from prosecutors.
It is not often that a federal judge withdraws or invalidates an important prior ruling, especially one backed by a 27-page opinion that extended the boundaries of the form and format of information produced by government agencies in response to Freedom of Information Act requests.
No matter what people think about the position of J-M Manufacturing Co. in a federal False Claims Act case it is defending in Los Angeles federal court, everyone can agree that the company must now have its checkbook ready to pay diverse payees it never anticipated paying. The new “payees” arose as a direct result of the e-discovery malpractice on which the Los Angeles-based company took legal action on June 1.
J-M Manufacturing Co. probably thought its legal representation problems in a big federal False Claims Act case would subside after it dismissed McDermott Will & Emery and hired another large firm, Sheppard Mullin. But costly challenges continue. On June 1, 2011, the Los Angeles company filed a malpractice lawsuit in California Superior Court accusing McDermott of wrongfully turning over thousands of privileged records to its adversaries in the case and marking up outside “contract attorneys" bills without disclosure or authorization.
The Supreme Court’s June 20 rejection of a massive class-action employment discrimination lawsuit against Wal-Mart involving 1.5 million female workers may spell victory for e-discovery service providers, IT specialists and e-records managers looking for work.
This article first appeared on the LeClair Ryan blog "e-Discovery Myth" on June 23, 2011. It is replicated in full with the permission of author Dennis Kiker.
The sensational Central Florida case in which a young mother, Casey Anthony, is accused of killing her two-year-old daughter, Caylee, is transfixing the world with bulletins not seen since the O.J. Simpson trial in 1995. Anthony faces the death penalty if the 12-person jury in Clearwater convicts her of the first-degree murder of which she is charged.
Designed to reduce the cost of privilege review, Federal Rule of Evidence 502 protects against the waiver of attorney-client privilege in the event disclosure of electronic and other records is inadvertent and the producing party took "reasonable" measures to prevent disclosure and correct errors.
Contract AttorneysThere are thousands of them. They work primarily for legal staffing, consulting and even some technology firms. Their ultimate client is usually a company or other entity that finds itself in litigation handled by a law firm outsourcing laborious, but necessary processes.
The e-discovery status quo is under siege in the Western District of Pennsylvania, as a federal court in Pittsburgh turns to special masters to alleviate the burdens of potentially costly, ESI-heavy discovery undertakings. In November 2010, a committee chaired by Judge Joy Flowers Conti approved the establishment of a list of e-discovery special masters, the selection criteria for which was compiled by a subcommittee chaired by Judge Nora Barry Fischer.
Multiven is the self-proclaimed world leader in affordable internet maintenance. Cisco is a huge digital networking player. If any two parties could be expected to conduct efficient e-discovery, it would be those that make electronic communication their business.
Under Title 28, US Code Section 1920, a prevailing party may ask a judge or court clerk to tax certain enumerated expenses as costs. One category of costs is "making copies of any materials necessarily obtained for use in the case." Congress added that language in October 2008 to replace the prior version that dealt with "papers." (See updated language) Many litigants are now asking courts to "tax" a wide range of e-discovery costs under the new language.
Interplay of "cost taxing" law and "prevailing party" rule dampens aggressive e-discovery demandsYou will get what you asked for. And you will get the bill.This is the e-discovery lesson that emerged from the courtroom of U.S. District Judge Terrence F. McVerry in Pittsburgh earlier this month in a lawsuit over an antitrust violation alleged by a racing tire manufacturer who claimed race sponsors were illegally excluding brands from the event.
Ignorant was Blitz, Texas federal District Court Judge T. John Ward ruled in an East Texas case of e-discovery mismanagement so flagrant the offending party will have to wear its abuses like a scarlet letter for the next five years.
ACEDS Advisory Board member Martha Barnett counts to her résumé a wide range of notable legal accomplishments. She was the first woman chair of the American Bar Association House of Delegates and the second woman to serve as president of that prestigious body. She has worked alongside Hillary Clinton on an ABA task force, been named one of the 100 most influential lawyers in America by the National Law Journal, and excelled in fields as diverse as education and budget reform.
In an era of instant digital gratification, the very notion of waiting around for electronic data processing recalls the archaic days of dial-up connections and AOL trial discs. But such is the nature of the US government’s deep dive into the plunder of data recovered from Osama bin Laden’s million-dollar compound in the hills of Abbottabad.
There's no telling if Mary Pettitt knew she was costing her employer hundreds of thousands, perhaps millions, of dollars when she tried to rewrite history on the archived e-mails.
Stephanie Giammarco started in e-discovery work at a time when reviewing a couple of hundred e-mails was a big deal in a case. Now, in a time when that is a puny ESI volume, the CEDS-certified BDO partner applies her long experience to the large, often international, cases she handles for clients.
Forced to run his terrorist network offline, Osama bin Laden relied on couriers to deliver messages by hand using storage devices. Could the electronically stored information (ESI) from his seized hardware clarify al-Qaeda's structure, or is it just one more piece to a larger intelligence puzzle?
Law firms, corporate counsel and government agencies are bringing e-discovery processes in-house in an effort to lower costs. But given the rapid advancement of technology, they face challenges in what kind of e-discovery can be performed internally and what should be left to vendors or outside counsel to do. A strong records retention policy and a clear understanding of the personnel and technological resources that are needed to perform e-discovery tasks will support a hybrid outsourcing model that also is likely to save costs.
SunTrust is sanctioned for email spoliation in a mortgage fraud suit against an AIG subsidiary. (Law.com)
Research shows Apple's iPhone and 3G versions of the iPad have been logging users’ locations for a year, creating a log file on users' computers when they sync their devices. (New York Times)
When litigators and other legal professionals first face an e-discovery matter that requires them to engage a vendor or service provider, they want to know how to select the best one. It is more than just shopping for the lowest price.
The movement toward e-discovery certification is a sign of things to come for Biglaw and vendors. (AboveTheLaw.com)
Differences in states’ e-discovery rules pose ESI compliance challenges for businesses with multi-state operations. (Law.com)
When companies receive a litigation hold, the clock starts ticking for launching preservation and ESI collection procedures. E-discovery professionals can use a data map, a vital tool that has multiple purposes. It displays the information assets of an organization, assists in locating and identifying those assets, and provides the roadmap to what must be preserved and collected.
"The customer is always right" is normally a reasonable working principle in client-driven businesses—as long as the clients have a sound understanding of the services they need. With electronic discovery, however, the client typically enters an unfamiliar realm. Rarely are they fully aware of best practices or of the most efficient ways to obtain, process and review data.
Businesses are being encouraged to tighten the leash on their employees’ social media activities. Many employee manuals now contain social media policies that put limits on what employees can do and say on the Internet. Increasingly, organizations are trying to hold their employees accountable for what they post online – even after work – blurring the lines around what constitutes acceptable professional and personal social media activity.
What happens when a litigant wants to determine the facts about an organization’s policies and procedures concerning electronically stored information, e-discovery and information technology? US Federal Rule of Civil Procedure 30(b)(6) provides a convenient tool to obtain testimony about these and other organizational practices and the vehicle by which an organization takes a position on relevant, sometimes controversial issues.
When parties to litigation need electronically stored information (ESI) that is in the hands of an outsider or third party, they enter the thorny realm of nonparty subpoenas and production issues. And when the case involves a large volume of ESI held by nonparties, it usually also involves large costs.
For nonparties responding to subpoenas, this means spending time and money to produce documents for a matter in which they are disinterested. Since a subpoena has the authority of a court order, the nonparty must respond or risk being held in contempt.
The ABA Journal, the monthly magazine for the world's largest bar association, devotes its cover story and other articles to e-discovery-related news. Here they are.
The more than 300 e-discovery specialists who gathered for Day Two of the ACEDS 2011 E-Discovery Conference were treated to a practical dissection of one of the critical questions in the discovery field: "How much is too much?"
Lawyers, technologists, consultants, service providers, sponsors and exhibitors from all over the United States, Puerto Rico and Canada came to South Florida’s oceanfront in March for a rigorous three-day immersion in the realities of twenty-first century litigation during ACEDS 2011 Annual E-Discovery Conference.
Many of them left deeply impressed. Here’s some of what they had to say:
If you think e-discovery is strictly about data collection, document review, litigation holds and other technical challenges, think again. Ethics is a big and growing part of the e-discovery field, and success requires a willingness to confront problems of professional conduct where the rights and wrongs are anything but clear, such as:
Federal agencies are more adept at e-discovery, but uniformity of procedures still lags, survey finds. (GovTech)
A judge offers a guide to cost-effective guide to e-discovery. (E-discovery Institute)
A new day in e-discovery dawned from coast to coast in the United States and other countries this week as practitioners in law, litigation support, information technology, records management and other fields of endeavor learned they are members of the inaugural class of professionals who earned the Certified E-Discovery Specialist (CEDS) designation.
One of the challenges of any profession is establishing a baseline of knowledge that allows for common reference points of understanding amongst participating professionals. This baseline of knowledge appears to be a critical element to the growth and success of professions as it enables clear and concise communication and coordination allowing for the efficient solving of problems and accomplishing of tasks.
Considering a baseline of knowledge in e-discovery
Lisa Prowse says she has a "passion" for e-discovery. That's why she borrowed from her Christmas fund, which augments what Santa Claus leaves under the tree for her five kids, to pay for her CEDS certification examination.
When you listen to the BIA director of strategic and legal services talk about her work as an e-discovery attorney and consultant, you do not hear that she provides the full support for her family. Her husband accommodates her “passion” by taking care of their five "rambunctious" kids.
Natural disasters may push small businesses toward cloud computing on rebuilding internal information technology centers. (Information Weekand Stuff.co.nz)
Fed up with hiring candidates and others whose skills don't match promise, Alvin Lindsay, international e-discovery expert and senior Hogan Lovells partner, took the CEDS certification exam and embraces the CEDS credential as the first reliable measure of e-discovery skill and knowledge.
ACEDS panel “choreographies” assure that nothing is left to chance in the knowledge attendees gain in each of the 17 panels, like keeping tight control of costs and budgets. ACEDS is poised to give the 200 first-year attendees maximum knowledge and career connections in 17 panels and 13 networking events on March 23-25.
Whether you’re in New York or London, Sydney or Hong Kong, Paris or Moscow, the likelihood that you will face a dispute involving electronically stored information (ESI) created, stored or altered abroad increases daily.
Social networking has skyrocketed in recent years. Use of sites such as Facebook, MySpace, Twitter, and LinkedIn, as well as other types of social media such as blogs, has become an integral part of the daily lives of millions of people. Facebook alone has over 500 million users. With that explosion of popularity, it's no surprise that the rise social media is affecting the legal world.
New York Times puts e-discovery on center stage of public consciousness with lengthy front page article. "Computer Makes Partner, Replacing Armies of Lawyers," says Times. (NY Times)
Top Hill staffer may be longing for old paper days, after losing job for e-mail leaks to NYT reporter. (NY Times)
Metadata is data about data. Like fingerprints, it leaves a trail. Like a jigsaw puzzle, it supplies missing pieces. Metadata tells the whole story of a document from its creation to its alteration, deletion or resting spot. It identifies persons who have altered it. It pinpoints what they altered.
Metadata reveals the author’s name, the sender, the visible and blind recipients, the date and time of creation, when it was sent, received and modified. It tracks changes and type of document, and in e-mails, it reveals the subject of the message.
The Federal Lawyer, the magazine of the Federal Bar,devotes entire February issue to e-discovery. Here are three of the stories.
The Legal Mind In The Digital Age - Electronically stored information brings vast amount of knowledge. Lawyers must use their legal mind to continue to think and provide value to clients. Read more.
As the nation plows through the endless days of cold and ice in the winter of 2011, pioneering e-discovery federal judge Shira A. Scheindlin of the Southern District of New York has turned the heat on another litigant, this time the federal agency that calls itself ICE.
Choosing a form of production of electronically stored information is a tough decision with ramifications for both sides in a case. When parties cannot agree on electronic production formats, budgets balloon, cases are prolonged and headaches persist. An early determination of how ESI should be produced –in native, imaged or other format – shapes a case, the strategy and budgets. Choosing wisely is essential.
When Delaware’s Court of Chancery speaks, corporate boardrooms, executive suites and general counsel's offices pay attention. That's because Delaware, the second smallest state in the country, is the legal home of nearly a million businesses, including more than half of all US publicly-traded companies, and the Court of Chancery is the state’s most powerful judicial body when it comes to business law.
Sony subpoenaed Google, Twitter, YouTube and other major sites for information relating to user names that Sony claims are used by hackers of its PlayStation 3 security keys (Industry Gamers).
US Judge Shira Scheindlin of New York directed the US Immigration and Customs Enforcement (ICE) to resolve a document production dispute involving the Freedom of Information Act, databases of fingerprints, and thousands of unsearchable PDF pages produced by the government in a suit by advocacy groups.
In a state where judges have no direct authority under court procedure rules to impose sanctions for e-discovery violations, as do federal judges, a state circuit court judge in Miami, inflamed by what she describes as a "fraud upon the court justifying the severest of all sanctions," has resorted to the equivalent of the judicial sanctions atomic bomb by leaving chemical giant DuPont defenseless in a never-ending, contentious suit.
When the Pittsburgh Steelers and Green Bay Packers meet in Super Bowl XLV, the referees will have one advantage that e-discovery specialists do not—the luxury of instant replay. If an erroneous call is made on the field, a team can toss the challenge flag and officials can have a second look via instant replay. But e-discovery professionals get no second chances when it comes to litigation holds—which may have a much greater impact on a big case than any single penalty will have in Cowboys Stadium on Sunday.
What happens when a document that you know to be privileged, such as under the attorney-client or work product privileges, is requested for production as part of discovery in a litigation? Documents identified as privileged should not be turned over to the opposition. But there’s more. They cannot be ignored in terms of a production request. Privileged documents must be identified inside a privilege log that is produced in a timely manner to the other side.
Cynthia J. Mascio, a paralegal at the largest full-service law firm in California, knows quite a bit about certification. She has earned numerous professional credentials, including those that have taken her from being a “certificated” paralegal to one who is professionally certified. And she’s now on her way to a new specialist credential unique to the electronic-discovery field, the Certified E-Discovery Specialist (CEDS).
“I will be able to use certification to open doors to other opportunities,” said Mascio.
AccessData Group has been a pioneer in designing software and engineering programs for e-discovery, computer forensics, and other digital investigations of electronically stored information (ESI). Now the company is on the industry’s cutting edge once again, with four of its employees joining the inaugural 2011 class of candidates for the Certified E-Discovery Specialist (CEDS) examination.
Recognizing the importance of early and comprehensive discussions between the parties concerning the whole discovery process, the Federal Rules of Civil Procedure include a number of procedures to bring electronic discovery issues to the forefront very early in the development of the case. The most significant of these is the Rule 26(f) conference.
The case for e-discovery certification got a broad, detailed endorsement last month from Boies, Schiller & Flexner partner Douglass Mitchell in a recent article in Los Angeles Lawyer magazine. Here is a summary of 16 key points he makes, followed by a link to the full article. (The headings are written by ACEDS):
Digital age brings ‘problems of competency in legal community’
The morning of December 16 was frigid in Kalamazoo, Mich., where attorney Lisa Prowse made a final check of everything she might need before walking out the door. She had her driver’s license, state bar card - even a Sam’s Club card – all in preparation for the personal identification requirements for admittance to a certification exam that will help her career.
What if your organization was faced with the task of collecting electronically stored information (ESI) in light of pending litigation? Do you ask your employees to collect their own emails and digital documents? After all, they know what documents they have and where they are stored. Asking data custodians to organize and collect the relevant documents on their own seems like it could be time and cost-effective.
Recently, ZL Technologies, Inc, a leader in archiving and e-discovery software for large organizations, announced its predictions for e-discovery in 2011.
Managing a document review process is a critical part of a successful ESI project, whether performed in-house, by outside contract attorneys, or by a document review firm that is engaged to assist. Done the right way, an efficient and effective document review can be completed on time and on a budget. Done the wrong way, it can lead to inaccurate results, improper or incomplete production of data, and possible court sanctions for e-discovery violations.
Rolando Bolaños, Jr., a former police officer who is also the son of a former police chief of Hialeah, Florida, thought he knew all the tricks on how to throw police investigators off a trail with alibis and ruses. But he did not know them all. What foiled his attempt to get away with a 2009 bank robbery at a BankAtlantic branch was not an eyewitness, not fingerprints and not a snitching co-conspirator.
E-discovery sanctions are at an all-time high, with more federal court sanctions in 2009 alone than in all the years before 2005 combined. Those are among the findings of an important new survey published in the current issue of the Duke Law Journal, which surveyed federal cases between 1981and 2009 that involved e-discovery sanction motions.
KPMG LLP (Canada) announced last week that it has acquired Ledjit Consulting Inc., the Montreal-based e-discovery and information management firm founded by Dominic Jaar. With Jaar and his team of information technology (IT) records and project managers and lawyers joining an existing e-discovery practice, KPMG becomes the first major firm in Canada to offer e-discovery services within the entire range of processes in the Electronic Discovery Reference Model (EDRM). The EDRM model is an industry guideline for improving e-discovery processes, standards and reducing costs.
The 7th US Circuit E-Discovery Pilot Program is a unique project in the federal appellate courts that aims to guide practitioners on controlling the escalating costs and burdens of electronic discovery. The multi-phase program— led by Chief District Judge James Holderman and Magistrate Judge Nan Nolan—is steered by a committee of trial judges, in-house and government attorneys, private practitioners, academics and litigation consultants, primarily from the Chicago-based 7th Circuit.
With 12 years of e-discovery experience, James Bickley has been in the field virtually as long as there has been one. He is executive vice president of business development at Counselor Resource Group (CRG) in Washington, D.C., where he offers consulting services centered on creating proactive and reactive e-discovery management policies and procedures.
Bickley’s specialty has been to develop strategies that reduce risks and costs, and apply technology to collect relevant electronically stored information (ESI) in response to client needs.
Determining who pays the cost of e-discovery can depend on the jurisdiction where the suit is filed, whether obtaining the data is unduly burdensome, and whether the parties have reached agreement on their payment responsibilities.
Last week, New York Supreme Court Justice Eileen Bransten ruled in Silverman v. Shaoul that shifting the cost of e-discovery to the requesting party was barred because the producing party failed to show that the production caused an undue burden. The production cost was approximately $60,000 for 5,000 pages of e-discovery.
On Nov. 12, the 62 pioneering e-discovery specialists who signed up to take the certification examination leading to the new Certified E-Discovery Specialist credential received a comprehensive CEDS Exam Preparation Manual to help them prepare for the rigorous, four-hour test.
ACEDS has published a CEDS Candidate Handbook that provides a step-by-step roadmap to persons who wish to sit for the certification examination. The Handbook covers everything from how to make a reservation to take the exam to a listing of the 15 major areas and 78 subtopics in e-discovery that are covered in the examination.
The pioneering ACEDS e-discovery certification is a reality. You can now earn the credential that validates your skill, advances your career, displays your knowledge and provides evidence of your competence.
Carefully developed according to rigorous psychometric standards, the proctored CEDS exam sets standards of excellence in this costly and risky field. Earn the CEDS certification and stand apart.
When you register for the exam, with payment, we immediately send you a comprehensive CEDS Exam Preparation Manual, which you can download.
Teams of e-discovery experts from around the US are putting the finishing touches on the first examination that will confer professional accreditation to specialists in the burgeoning new field of electronic discovery.
The testing experts are putting the proposed questions under a microscope to assure clarity, relevance, lack of ambiguity, and appropriateness before they are approved for inclusion in the landmark certification exam that will be released Nov. 1.
A case that won notoriety in 2008 after a federal magistrate in Baltimore ruled that turning over evidence to an adversary could waive both attorney-client and work-product privilege has achieved new prominence, thanks to e-discovery misconduct. In Victor Stanley v. Creative Pipe (now known as Victor Stanley II) the same judge has now recommended jail time for a series of discovery breaches he describes as the "single most egregious example of spoliation" he has seen in his 14 years on the bench.
When law firms and corporations face litigation involving large amounts of electronically stored information (ESI), they're increasingly seeking temporary help from legal staffing firms, including new hybrids that specialize in legal technology.
Each year in the United States, hundreds of thousands of disputes end up in arbitration, a system of conflict resolution that a number of industries have adopted as a less formal, more efficient and less costly alternative to lawsuits and litigation.
Increasingly, however, arbitration's advantage over the courthouse is being eroded by the availability of mountains of electronically stored information (ESI), which provide much the same evidentiary overabundance that often chokes the discovery process that precedes a formal trial.
Faced with the failure of SanDisk, a large data storage firm, to safeguard and preserve the data in the laptops of two former employees who had sued for breach of contract, a New York federal district judge has imposed a $150,000 sanction and told the company it will draw an "adverse inference" in the non-jury trial for spoliatio
The 2010 mid-year survey by the law firm Gibson Dunn finds a steady flow of federal cases where sanctions were imposed on clients and lawyers for e-discovery lapses, and broad disagreement among circuits on when the "adverse inference" jury instruction should be leveled for e-discovery infractions.
Last month the website WikiLeaks.org posted more than 90,000 classified US documents relating to the war in Afghanistan. Comprising everything from intelligence assessments to after-action reports, the information opened a window on previously unseen elements of the war, and exposed decision-making behind incidents that resulted in the deaths of both combatants and civilians.
Modern businesses rely on information technology to deal with a variety of challenges ranging from records management to regulatory compliance. As litigation requirements matured, these organizations deployed a variety of e-discovery applications.
Gibson Dunn's 2010 mid-year e-discovery report reveals a broad incursion of evidence from social networking sites in civil cases throughout the US. Criminal cases are not far behind. ACEDS analyzes the social networking portion of the firm's update in this report, followed by dissection of other parts of the broad report in coming days.
The global economic downturn of the last two years has challenged companies to develop more efficient modes of operation, including the management of their data. This pressure comes at a time when there is an already formidable and growing list of requirements, laws, and regulations with which business must comply. Many of these regulations—including SOX, HIPPA, HITECH, FISMA, PCI, H.R. 221, 44 individual U.S. state breach laws, and international privacy laws—address management, security, or privacy of data.
Little by little all forums where disputes are resolved are promulgating rules dealing with how electronically stored information will be treated in proceedings before them. This proliferation of e-discovery rules is simply recognition of the fact that few aspects of daily life are not permeated by electronically stored information.
The United States Congress has constitutional powers that litigators would envy. Its committees have virtually untrammeled freedom to request anything they feel is necessary to perform their legislative, oversight, investigative and appropriations functions.
Whether it is the transcripts of Richard Nixon's secretly-taped conversations with Watergate conspirators, or records of a government agency's deliberations before and during a national disaster, or the tens of thousands of emails Supreme Court nominee Elena Kagan exchanged while working in the Clinton and Obama administrations, there is little in the day-to-day workings -- and malfunctioning -- of the United States government that does not fall into the hands of the National Archives.
As with many things in the electronic discovery field, putting a litigation or legal hold on electronic information that is or may be relevant to a case is far more difficult than it sounds. When does it apply, to whom does it apply and what does it apply to are some of the questions that vex e-discovery practitioners in multiple disciplines.
There is no doubt that large, complex organizations must organize their electronically stored information (ESI) in a way that enables them to handle electronic discovery requests and disclosures. But electronic discovery experts in the federal government say a successful system for managing ESI can't exist in an e-discovery vacuum.
The United States federal court system has 13 appellate courts, including 11 regional circuits, the District of Columbia Circuit, and the Federal Circuit, which Congress created in 1982 to hear appeals from the U.S. Court of Claims and the U.S. Court of Customs and Patent Appeals.
Complying with electronic discovery requests and requirements is difficult enough for attorneys operating solely in the United States. But when they demand documents that are located overseas, the headaches — and the risks — intensify dramatically.
Federal Rule of Civil Procedure 26(f) requires parties in litigation to "…confer as soon as practicable … [and to]…state the parties’ views and proposals on …any issues about disclosure or discovery of electronically stored information….."
When a company embroiled in a lawsuit decides to hire outside professionals to help manage its electronic discovery needs, there is no shortage of "experts" bearing advice about how to vet potential e-discovery vendors.
Even a quick Internet search for papers outlining best practices for assessing e-discovery vendors produces too many results to count.
The problem is, the vast majority of that advice comes from people who themselves sell e-discovery products, making their counsel, at best, self-serving.
For years, insurers that offer business policies, including director and officer (D&O) coverage and liability insurance, have kept a careful eye on electronic discovery-related expenses incurred by companies whose litigation costs they cover.
"Insurance companies are paying for e-discovery costs as a result of the fact that under most liability policies they have to pay for defense costs, and a growing amount of those costs are e-discovery related," said Thomas Smith, a partner in the electronic discovery practice of K&L Gates in Seattle
It is a fundamental principle of any democracy that all citizens are guaranteed equal access to the courts. But many attorneys in the United States are expressing concern that the volume of electronically stored information, or ESI, and the proliferation of electronic discovery are pricing — or driving — litigants with meritorious claims or defenses out of court.
As jurisprudence related to electronic discovery evolves, the gap—whether real or perceived—between what is expected of private attorneys and what is expected of the government is narrowing.
Historically, the government has been less vulnerable than private parties to monetary sanctions, said Jennifer W. Freeman, a senior consultant at Kroll Ontrack in Chicago, a major vendor of services and software to the e-discovery market and an advisor to the U.S. Seventh Circuit's Pilot Electronic Discovery Program.
As the wreckage of the Deepwater Horizon drilling rig continues to spew British Petroleum's oil by the millions of gallons into the Gulf of Mexico, the only two things growing at a pace rivaling the massive oil spill are the pool of plaintiffs planning to sue the oil firm and others and the amount of electronically stored information (ESI) that will be relevant to prove or disprove the issues in contention.
Western lawyers have struggled for decades with the linguistic divide between English and Japanese, but in the modern age of electronic discovery, crossing that divide to track a defendant's negligent, embarrassing, malicious or outright dumb mistakes can be a daunting proposition for plaintiffs.
Managing electronic discovery is challenging enough when a corporate attorney works in the same building as her company's information technology staff and can simply walk down the hall to kick off the process of responding to a litigation hold instruction, a discovery demand from a litigant or an order of the court.
But what happens when the company's business records not only are not kept down the hall, but are not in the company's hands at all?
A sweeping effort to streamline e-discovery policies and practices throughout the federal courts is under way in Chicago, as a year-old pilot program issues a set of principles intended to bring consistency, fairness and efficiency to the way litigants handle the data deluge of 21st century justice.
A groundbreaking pilot program spearheaded by a senior federal district court judge and a federal magistrate judge in the Seventh U.S. Circuit Court released its first report on Monday.
It details the reaction from judges and attorneys to a new set of experimental principles for electronic discovery, including the innovative use of a designated "E-Discovery Liaison" in every case.
If there are any attorneys out there doubtful of the negative impact that e-discovery missteps can have on a legal career, the case of the so-called "Qualcomm Six" should serve as a vivid example that they can.
As a matter of practice in U.S. courts today, a defendant in a civil lawsuit brought by the government is entitled to discovery of electronically stored information (ESI) held by the government.
The Federal Rules of Civil Procedure place a clear and unambiguous obligation on all litigants, including the government, to turn over all relevant material responsive to the opposing side's request for production.
That is no doubt comforting to defendants faced with potentially major financial losses in a civil suit.
While electronic discovery issues reach into the work of virtually every legal and information technology professional involved in the management of litigation and electronically stored information, no single entity in the United States is more entangled in emerging questions and challenges about e-discovery than the federal government itself.
If the opening line of the physician's credo is "First, do no harm," the opening line of the attorney's credo might well be, "Take no case which you are not competent to handle."
Indeed, Rule 1.1 of the American Bar Association's Model Rules for Professional Conduct for attorneys says:
1. Follow the Golden Rule
Assume that your e-mail will be printed on the front page of the New York Times. If you would be embarrassed or concerned, don't send it
2. Don't e-mail if you can telephone or meet in person
E-mail is not a replacement for personal conversation. Comments and suggestions can be said in a conversation that suddenly and surprisingly become misinterpreted, embarrassing or harmful in an e-mail.
Today, Nov. 1, 2010, marks the birth of the first ever independent certification examination in the e-discovery field. This edition of Bits and Bytes is devoted to this landmark event.
On Thursday, Nov. 4, the Association of Certified E-Discovery Specialists will release to certification candidates an extensive CEDS Examination Preparation Manual as part of their examination fee. The Manual is designed to help the candidates prepare for the exam, along with other sources they may use in their studies.
When Congress weighs in on an issue, the Executive and Judicial branches listen closely for one simple reason. Congress is the branch that controls the purse strings, including their budgets. The 435 members of the House and 100 Senators determine federal agency budgets, the programs they pursue and the reforms they must make.
In re Online DVD Rental Antitrust Lit plntffs appeal CAND's 'broad construction of 1920 w/ respect to #ediscovery prod. costs' to 9th Crct 5 days 22 hours ago
