Total Articles: 22
Recovering E-Discovery Costs: A Potential Trend
As data volumes in discovery increase and the cost of handling electronic evidence rises, there may be a silver lining developing: some courts have awarded costs to prevailing parties related to e-discovery. While opinions are fact-driven and vary by jurisdiction, e-discovery-related costs may be recoverable in some instances if they are found to be necessary and reasonable.
11 Employer FAQs (No. 3): When do I have to start saving electronic evidence?
You should start preserving electronic documents (emails, Word and Excel files, Power Point shows, etc.), as well as text messages, voice mail, and any other relevant evidence, as soon as the first of the following occurs
E-discovery at First Byte
Evidence preservation - especially electronic evidence preservation - can be complicated. Indeed, if you think about it, navigating the e-discovery preservation process is much like navigating a relationship. These two seemingly distinct concepts just may have more in common at the fundamental level than you might initially think.
Building An Effective Discovery Response Team
These days discovery is haunted by the twin specters of high compliance costs and sanctions for failure to meet compliance obligations. Nowhere are these more evident than in the class or collective action context, since the scope of discovery in such actions is generally substantially broader than in an individual claim.
Five Common Mistakes Lawyers Make in Electronic Discovery
No. 1: Failing to understand what electronically stored information (ESI) your client or the opposing party has.
Top Ten Things to Know About the Federal Rules of Civil Procedure Addressing Electronically Stored Information
The 12/1/06 rule changes make explicit the duties that already existed. Electronically stored information (ESI) has been discoverable for a long time.
Court Urges Practical Approach to Document Preservation Duties
Complying with the duty to preserve potentially relevant information remains one of the most daunting practical challenges in modern litigation. Recently, in an 89-page decision, Chief Magistrate Judge Grimm of the District of Maryland analyzed the nuances of the duty to preserve electronically-stored information and provided guidance on what must be proved in a motion for sanctions for spoliation. He also summarized the multiple and sometimes inconsistent standards between jurisdictions that litigants must navigate. Victor Stanley, Inc. v. Creative Pipe, Inc., Civil No. MJG-06-2662, Dkt. No. 377 (D. Md. Sept. 9, 2010 ) ("Victor Stanley II").1 Victor Stanley II includes language about the importance of considering the proportionality and "reasonableness" of efforts to preserve, injecting some realm of practicality to the overwhelming preservation obligation with which litigants must comply.
Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile
Kathleen Romano sued Steelcase, Inc. for personal injuries she allegedly sustained when she fell from her office chair. Romano alleged that, as a result of the fall, she suffered restricted movement of her neck and back and “pain and progressive deterioration with consequential loss of enjoyment of life.”
Social Networking Discovery: Get Used To It
Russell Burke authored an article entitled "Social Networking Discovery: Get Used To It." It appeared in Strictly Speaking a publication of DRI - The Voice of the Defense Bar.
E-Mails, Memos, and Other Smoking Guns.
Hopefully, nothing in this article about the dangers of e-mails, memorandums, etc. will be news to you. You may even say to yourself "Who didn't know that?" Well, apparently some folks "forget" from time to time that information in e-mails, memorandums, and other documents is discoverable in litigation and may be the basis for large amounts of money changing hands. The information in them may or may not convey the author's actual beliefs or motivations – but it may be a jury who decides.
Recognizing the Risks and Avoiding the Pitfalls of eDiscovery (pdf).
As companies increasingly, and sometimes
needlessly, store excessive volumes of
electronically stored information (ESI), preparing
for litigation has become more complex and
particularly diffi cult for the IT personnel charged
with executing legal hold directives. The 2006
amendments to the Federal Rules of Civil
Procedure (the “Amended Federal Rules”) codifi ed
the view that ESI is discoverable and subject to
various retention requirements. The Amended
Federal Rules require that, early in the litigation,
litigants assess their data and confer about issues
relating to the discovery of ESI.1 Because of the
breadth of information stored in corporate
technology environments and because of potential
pitfalls involved in preserving ESI, in-house legal
and technology departments must work together
and communicate well in order to develop policies
that will help them prepare for a Rule 16 “econference,”
as well as admissibility issues that
may arise during the litigation.
IMs As ESI: When To Save Instant Messages And How To Properly Authenticate Retained IMs (pdf).
Reading through the many eDiscovery
vendor whitepapers on the topic, one
would think that instant message (“IM”)
retention and archiving should be the focus
of every good eDiscovery preparedness
initiative. In a thinly veiled effort to boost
demand for their products, these vendors
have made the blanket assertion that all
companies must retain IM for discovery
purposes as a result of the amendments to
the Federal Rules of Civil Procedure (the
“Amended Federal Rules”), which went
into effect on December 1, 2006. According
to these vendors, this is so because IM
falls within the definition of electronically
stored information (“ESI”) as set forth in
the Amended Federal Rules. While organizations
must account for the Amended
Federal Rules in their eDiscovery undertakings,
the impact of IM on information
management policies is debatable.
eDiscovery Update (pdf).
Most Organizations Have Not Taken Appropriate Steps to Manage Risks Posed by E-mails; Employers May Be at Risk for Employees' Internet Usage; Liability for Data Security Breaches Expanding.
Less Paper, More Danger? (pdf).
The U.S. Supreme Court
approved amendments to the Federal
Rules of Civil Procedure pertaining to
discovery of electronically stored
information (ESI) that took effect on
December 1, 2006. The new rules
substantially alter prior practice by
requiring litigants to, among other
things, exchange, during the initial
Rule 26(f) conference, detailed information
about ESI, including how it is
stored, whether it is being preserved
and whether the information is reasonably
accessible.
Electronic Data: New Rules, New Risks.
In recent years, far too many employers who are not sure how to protect their electronic information have allowed departing employees to take their most valuable trade secrets, degrade the value of their electronic data for litigation purposes, or have seen critical electronic evidence completely destroyed, exposing their organizations to serious civil and criminal liability.
How The New Electronic Discovery Rules Affect Your Business.
Recent changes in the Federal Rules of Civil Procedure will have an enormous impact on employment litigation over the next several years. The changes, which went into effect December 1, 2006, are designed to focus more attention on “e-discovery,” the production of electronic documents in court proceedings. These new rules will be a significant challenge for every employer who faces a lawsuit from now on.
Employment Law Update: New Rules on Electronic Discovery Now in Effect (pdf).
Amendments to Rule 26 of the Federal Rules of Civil Procedure pertaining to the exchange of electronic data during course of litigation went into effect on December 1, 2006.
New Rules Tighten Requirements For Electronic Document Discovery (pdf).
Employers must prepare in advance to satisfy duty to preserve documents.
Court Dismisses Case for Failure to Preserve Electronic Evidence.
In a case that demonstrates the importance of complying with court orders regarding electronic discovery and the depth of information that can be obtained from computer files, a federal court in Illinois dismissed a former employee’s breach of contract case against his ex-employer because the former employee deleted, altered or modified thousands of files on a laptop computer after receiving notice that the computer’s contents were the subject of litigation.
Top Ten Mistakes Clients Make In Electronic Discovery (pdf).
"Top Ten Mistakes Clients Make In Electronic Discovery" was published on the web site of the Commercial and Business Litigation Committee of the Litigation Section of the American Bar Association.
Five Common Mistakes Lawyers Make In Electronic Discovery (pdf).
"Five Common Mistakes Lawyers Make In Electronic Discovery" was published on the web site of the Commercial and Business Litigation Committee of the Litigation Section of the American Bar Association.
Nuts and Bolts of Creating a Records Retention Schedule (pdf).
There is no cookie-cutter approach to creating an effective document retention program.
