W.D. Va. Explicitly Holds that Courts May Consider the Cost of Reviewing Electronically-Stored Information for Privilege in Assessing Burden of Production and May Shift Cost to Requesting Party Based on Burden; Encourages Cooperation in Developing Privilege Review Protocols By Bennett B. Borden, Monica McCarroll and Neil Magnuson In two nearly identical opinions, the U.S. District Court for the Western District of Virginia...

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The torrent of social media evidence continues to grow and X1 Discovery continues to monitor online legal databases of state and federal court decisions across the United States, where evidence from social networking sites played a significant role. Now, with 320 published cases in the first half of 2012 and more than 689 published cases from 2010 through 2011, not counting de minimis entries (defined as cases with...

Effective Aug. 1, 2012, the Pennsylvania Rules of Civil Procedure will include, for the first time, rules specifically relating to electronically stored information. The amendments differ from the corresponding Federal Rules, adopting a "proportionality" approach that empowers judges to craft relief that fits the circumstances. In this Emerging Issues Analysis, Maxwell S. Kennerly, a plaintiff's attorney...

Effective Aug. 1, 2012, the Pennsylvania Rules of Civil Procedure will include, for the first time, rules specifically relating to electronically stored information. The amendments differ from the corresponding Federal Rules, adopting a "proportionality" approach that empowers judges to craft relief that fits the circumstances. In this Emerging Issues Analysis, Maxwell S. Kennerly, a plaintiff's attorney...

Preservation and discovery sanctions rarely reach appellate courts, but the Second Circuit addressed both in its July 10 opinion in Chin v. Port Authority of New York & New Jersey , --- F.3d ---, 2012 WL 2760776, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2d Cir. July 10, 2012) [ enhanced version available to lexis.com subscribers ], an appeal (and cross-appeal) in an employment discrimination case. Most significantly,...

By William A. Ruskin On July 16-17, 2012, Executive Counsel Institute conducted a cutting edge meeting in New York titled, "E-Discovery for the Corporate Market." The theme of the two day meeting was "Controlling Your E-Discovery Destiny." The Colloquium Moderators, Brown E. Marean III from DLA Piper, David Kessler from Fulbright & Jaworski, and Paul Weiner from Littler Mendleson did an excellent...

In Trail v. Lesko (opinion here) , Allegheny County Judge Wettick provided a great resource for anyone researching social media discovery issues. Judge Wettick authored a 20-page opinion, running through nine Pennsylvania state court decisions addressing discovery of social media in litigation: [The Pennsylvania] Courts of Common Pleas that have considered discovery requests for Facebook information appear to follow...

As tempting as it may be to believe, judges don't always get it right. Every lawyer has seen an opinion that misapplies the law or applies the wrong law altogether. And maybe that's why we get so giddy when a court really nails it, particularly when the issue is complicated or novel or the law unsettled. Allegheny Court of Common Pleas Judge hit one of these legal homeruns in a 20-plus-page decision issued last...

By JAY BRUDZ and LAURENCE V. PARKER, JR. The Federal Rules of Civil Procedure were amended in 2006 to acknowledge the increasing significance of electronically stored information in litigation. These amendments and similar amendments to state rules have cemented the importance of electronic discovery or "eDiscovery" in the litigation discovery process. In addition to being complex and voluminous, eDiscovery...

Increasing Revenue and Reducing Overhead in the Era of Electronic Discovery By Kristin Branson E-discovery has grown from an atypical procedure required in special cases in the late 90s to one enveloping almost every litigation matter. It adds significant costs to almost every case. Without the experience or knowledge to better understand the processes involved in e-discovery, litigators and their teams have necessarily...

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Written by Nadine Weiskopf, Director Product Management at LexisNexis A slow but steady movement has been gaining ground in our judicial system as technology is embraced more and more by members of the bench. Judges are attending technology conferences, finding ways to leverage technology in their courtroom, and utilizing blogs and social media. Some Judges have moved beyond simply embracing technology and...

By Daryl Shetterly Whenever I hear people lamenting the many ways eDiscovery has ruined their day or their week, I try to dig a bit deeper and get to the root of the problem. Is the problem really an eDiscovery problem or is it a failure by the organization or law firm to properly plan and prepare for the inevitability of complying with eDiscovery obligations? More often than not the "eDiscovery problem"...

Gain control of your corporation's e-discovery In an effort to reduce cost and regain control of their data, more corporations are taking on the early challenges of e-discovery-a challenge that can be daunting if you don't have the right tools. Luckily, there are early data assessment solutions that can help. More and more, in an effort to reduce cost and regain control of discovery, corporations are the...

Companies could lower the high cost of large-scale electronic discovery in lawsuits by using a computer application known as predictive coding to reduce the number of documents requiring human review, according to a new study from the RAND Corporation. The study also calls for rule changes to address concerns about the scope and process of preserving information in anticipation of future litigation. Pretrial...

New York state courts are increasingly turning to federal Zubulake standards [ enhanced version available to lexis.com subscribers ] when confronted with spoliation of electronic evidence issues. However, in dealing with garden variety spoliation of evidence scenarios, not involving ESI, New York courts have generally engineered their own solutions without turning to federal common law for guidance. We previously addressed...

Many Unprepared to Manage Requests, Especially for Social Media, Cloud Computing MENLO PARK, Calif. -- Spending by organizations on electronic discovery-related services grew in 2011 and should continue to increase through 2013, new research from Robert Half Legal eDiscovery Services indicates. Nearly one-quarter ( 23 percent ) of lawyers interviewed said their law firms and corporate legal departments increased e...

By William A. Ruskin On February 28, 2012, the Appellate Division, First Department, issued its decision in U.S. Bank N.A. v. GreenPoint Mortgage Funding, Inc ., 2012 N.Y. App.Div. LEXIS 1487 [ enhanced version available to lexis.com subscribers ], which adopted the standards established in the SDNY's 2003 landmark decision in Zubulake v. UBS Warburg LLC , 220 F.R.D. 212 (SDNY 2003) [ enhanced version ]. In its...

By William A. Ruskin Connecticut state courts have not provided a rule to address electronic discovery that would give guidance to litigants in a manner similar to the federal rules. In a significant decision, issued on November 18, 2011, the Hon. Barbara Brazzel-Massaro, who sits in Complex Litigation in Stamford Superior Court, ruled in Innis Arden Golf Club, Inc. v. O'Brien & Gere Engineers Inc., et al....

By William A. Ruskin For those of us who work on document-intensive litigations, take note of Magistrate Judge Andrew J. Peck's (SDNY.) opinion released on February 24, 2012 in Monique Da Silva Moore, et al. v. Publicis Groupe and MSL Group , Case 11 Civ. 1279 (ALC)(AJP). Judge Peck's decision may be the first federal court opinion approving the use of computer-assisted review in place of "eyes on"...

B y Bennett B. Borden and Monica McCarroll Judge Payne's Opinion in ePlus Inc. v. Lawson Software, Inc. is a "must-read" for all attorneys practicing in the E.D. Va. and a cautionary tale for all litigators. Judge Payne provides a primer as to what privilege is, when it can be asserted, and how it should be logged in order to preserve the privilege. Protecting Privilege with Proper Claw-back Agreements...

By Jeffrey Ritter, Esq., CEO and Founder, the Ritter Academy Managing digital information as evidence now requires that corporate clients of law firms think differently about the terms of their engagement letter with a law firm. In today's digital business environment, a law firm is no longer merely offering its skills as a trial advocate. Instead, to differing degrees, the law firm is also offering its competency...

By Monica McCarroll and John B. Swingle Chief Judge Rader of the Federal Circuit caused quite a stir among both the patent and eDiscovery bars when he unveiled a new Model Order intended to curb perceived abuses of eDiscovery in patent cases. Chief Judge Rader unveiled the Model Order during his September 27, 2011 remarks at the Eastern District of Texas Judicial Conference. His speech highlighted six ways to improve...

Take advantage of this unique opportunity to hear George Socha, co-founder of the EDRM ® ( edrm.net ) and Apersee SM ( apersee.com ). This Webinar was held: February 14, 2012 10 a.m. PT/Noon CT/1 p.m. ET During this recording, you will get professional advice-complete with a practical hands-on demonstration. Industry expert George Socha provides a non-technical overview of the EDRM. Doug Deutermann...