Hot Off the Presses: The 2012 Black Letter Book

February 2, 2012 - By Jon Resnick, Esq.
This week at LegalTech, we were proud to announce the publication of the fifth edition of our essential e-discovery resource for practitioners: the Applied Discovery Black Letter Book. Below, I touch on just some of the content we've updated in the 2012 edition. The Black Letter Book profiles the hottest e-discovery issues from 2011, including the perils of self-collection and the ethics of cloud computing. We've also added a chapter focusing on court involvement in drafting rules to bridge the gap be...
 
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Fail-Safe Privilege Protection: The Clawback Agreement

February 2, 2012 - By Chris Marzetti, Esq.
When you meet with opposing counsel to confer over your discovery obligations, do you discuss how to handle the inadvertent production of privileged information? If you're in federal court, Rule 26(b)(5) of the Federal Rules of Civil Procedure allows a party that inadvertently produces information protected by the attorney-client privilege or work product doctrine to assert the protection and request its return; the opposing party must comply. For further protection, you can—and should—also negotiate ...
 
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New Rules for a New Year: Part III

January 26, 2012 - By Jon Resnick, Esq.
Over the last two weeks, I have been focusing on important changes in federal and state court rules and procedures that affect e-discovery. In the final blog of this series, I focus on developments in the District of Delaware. On December 8, 2011, the District of Delaware adopted a revised Default Standard for Discovery, Including Discovery of Electronically Stored Information. The court encourages parties to come up with a discovery plan that suits their needs; however, where they fail to cooperate, ...
 
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A New Road Map for International Discovery

January 26, 2012 - By Michael R. Pontrelli, Esq.
In litigation, U.S. companies with multinational operations often must straddle the discovery rules that apply in American courts and the data protection laws of other nations. Complying with these conflicting requirements can be challenging, particularly where American courts require a party to preserve or collect information in a jurisdiction where data protection laws limit the party's ability to do so. This is especially difficult in Europe, where members of the European Union are subject to the 1995...
 
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New Rules for a New Year: Part II

January 19, 2012 - By Jon Resnick, Esq.
Last week, I highlighted some recent changes in state court rules that affect e-discovery. This week, I turn to developments in several federal courts that may signal things to come as revisions to the Federal Rules of Civil Procedure remain hotly contested. Southern District of New York On November 1, 2011, the Southern District of New York implemented a new Pilot Program for Complex Cases in "response to the federal bar's concerns about the high costs of litigating complex civil cases." The program...
 
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Taming the E-mail Monster

January 19, 2012 - By Larry W. Conner, Esq. (Bud)
Though many companies are aware of the problems and risks associated with retaining e-mail, many still have not incorporated e-mail in their records management programs. The 2011 AIIM State of the Industry Survey revealed evidence of this stark gap between knowledge and practice, including that 15% of respondents delete all e-mail over a certain age, but 16% keep e-mail indefinitely; 27% of respondents have no policy governing e-mail, and 39% are still filing important e-mail in personal Outlook folders....
 
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Dear Federal Government, Welcome to the Digital Age

January 12, 2012 - By Bill Mariano, Esq.
Recent initiatives and litigation have brought the federal government's recordkeeping system under scrutiny. For example, the National Archives and Records Administration's 2010 Records Management Self-Report revealed serious deficiencies in federal agencies' retention of e-mail and a host of other problems. And in a recent case, United States v. Honeywell International, Inc., the defendant accused the government of "recklessness and gross mismanagement" in its failure to preserve documents and its erran...
 
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New Rules for a New Year: Part I

January 12, 2012 - By Jon Resnick, Esq.
As the new year begins and we continue to look forward to the next Civil Rules Advisory Committee meeting in March, I wanted to highlight some recent changes in state e-discovery rules that might serve as a model for revisions to the Federal Rules of Civil Procedure (FRCP). Next week, I'll cover changes in the federal courts. North Carolina In October 2011, amendments to the state's Rules of Civil Procedure went into effect that incorporate electronically stored information (ESI) within the scope o...
 
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Will 2012 Be a Breakout Year for E-Discovery Special Masters?

January 5, 2012 - By Ignatius A. Grande
Though the idea of appointing a special master in litigation involving e-discovery has recently received a lot of attention, it is not a new concept. In 2009, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York and lawyer Jonathan M. Redgrave reviewed the use of special masters in e-discovery under revised Rule 53 of the Federal Rules of Civil Procedure, which permits the use of special masters on an as-needed basis with the parties' consent or by court ord...
 
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Patience Is a Virtue, But So Is Cooperation

January 5, 2012 - By Jon Resnick, Esq.
Over the last few years, a significant number of cases have addressed parties' failure to cooperate during the federal courts' Rule 26(f) meet and confer process. This has particularly been a problem where parties fail to agree on reasonable search methodologies. In 2011, many judges showed no reluctance to intervene where parties could not agree upon search terms to use to locate responsive ESI. Perhaps judges are losing their patience with parties that fail to reach such an agreement: more judges seem ...
 
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