By Philip N. Yannella and Thomas J. Gallagher IV U.S. Magistrate Judge Paul S. Grewal of the Northern District of California recently issued an order in Venture Corp., Ltd. v. Barrett shedding light on the meaning of two Federal Rules of Civil Procedure governing document production. One rule requires that parties produce documents in the form in which they are “ordinarily maintained,” and the other requires...

The consensus among most commentators tracking annual developments in eDiscovery law seems to be a collective yawn when it comes to evaluating 2013. No earth-shattering edicts were pronounced; no bright lines were drawn to simplify preservation obligations; no definitive guidance was announced on what must be disclosed when predictive coding is deployed. But 2013 was still notable – new and amended rules continued...

A recent Pennsylvania State Court order granting a defendant’s motion to compel the production of one of the plaintiff’s Facebook log-in credentials found that social media accounts– even if set to private –are fair game in discovery. In Largent v. Reed , Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) , a personal injury case, the plaintiffs alleged serious and permanent physical and mental...

By Jessica Sykora | Pharmaceutical and medical device companies in the midst of costly e-discovery battles and high-dollar litigation have more than likely heard the buzzwords "predictive coding" and "computer-assisted review" at some point during strategy sessions over how to sort through the overwhelming mountains of e-data maintained in relation to a particular drug product. Given the ever...

By Philip N. Yannella and Arash Micaily | The Rules Advisory Committee has recommended proposed amendments to the Federal Rules of Civil Procedure that would set guidelines for courts to follow when evaluating a request for sanctions for spoliation of discovery information, both paper and electronic documents. If enacted, the proposed amendments to Federal Rule of Civil Procedure 37(e) (FRCP 37(e)) would become the...

By William A. Ruskin | In January 2013, GlaxoSmithKline (“GSK”) filed a complaint in New York state court alleging that its e-discovery vendor, Discovery Works Legal Inc., was “holding hostage over 20 terabytes of GSK’s most sensitive and confidential data, and threatened to withhold and destroy the data" unless GSK paid a ransom of more than $80,000. GSK is the second largest pharmaceutical...

By David J. Kessler , Keith Matthew Angle and Jami Mills Vibbert On August 15, 2013, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published the Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure for public comment. The proposed amendments would modify Rules 1, 16, 26, 30, 33, 34, 36, and 37, among others. The proposals...

Are you or your outside law firms using data analytics to identify profitability of individuals or specific matters? Or to support or refute claims and allegations? Or to spot and exploit trends and opportunities? While definitions may vary, these are some of the things made possible by "big data," according to legal and technical experts who shared their insights during a one-hour panel discussion hosted by...

By Amy Jane Longo and Usama Kahf [Editor's Note: Amy Longo is a partner at O'Melveny & Myers LLP and a member of the Firm's Financial Services and Electronic Discovery and Document Retention Practices. Usama Kahf is an associate and a member of the Firm's Labor and Employment Pratice. Both are resident in O'Melveny's Los Angeles office. The opinions expressed in this article do not necessarily...

By William A. Ruskin In an earlier article , we discussed the significance of Magistrate Judge Andrew J. Peck's (SDNY) opinion in Da Silva Moore v. Publicis Groupe [ enhanced version available to lexis.com subscribers ], a highly publicized decision that approved of the use of computer-assisted review in place of "eyes on" document review. Eric Seggebruch , the Regional Manager for eDiscovery at Recommind...

By P. Benjamin Duke and Mari K. Bonthuis, Attorneys, Covington & Burling LLP Almost a decade after the first groundbreaking court decisions on electronic discovery, no insurance litigator can claim to be unaware of his or her obligations with regard to the collection and production of electronically stored information ("ESI"). In addition to the voluminous case law that has developed on electronic...

The attorney-client and work product privileges are some of the oldest and most important evidentiary privileges in our legal system. The attorney-client privilege, in particular, is regarded by some as almost "sacred." Given their importance, you would think that these privileges would be closely safeguarded by attorneys and litigants - and, generally, they are. However, safeguarding these privileges is not...

Other improvements include new user audit log for better monitoring of workflow, faster exporting of files and improved OCR tool NEW YORK, November 13, 2012 - LexisNexis® Legal & Professional ( www.lexisnexis.com ), a leading global provider of content and technology solutions, today announced the release of LexisNexis ® Early Data Analyzer 1.2, an enhanced version of its electronic discovery software...

By Brian Ingram, LexisNexis According to a recent survey by eweek.com, "cost control" is now the biggest concern of Chief Legal Officers (CLOs), beating "compliance" by more than two to one. Almost one half of all CLOs participating in the survey say they plan to expand their in-house legal departments in the next year, and more than a quarter of them also plan to decrease their use of outside counsel...

Enhanced version of application twice as fast, now includes "OCR on the Fly" capability for converting document images to text NEW YORK, October 18, 2012 - LexisNexis® Legal & Professional ( www.lexisnexis.com ), a leading global provider of content and technology solutions, today released a new version of its Concordance ® Native Viewer application that allows litigation support teams to process...

By William A. Ruskin In an earlier article on January 5, 2012 , we discussed how New York practitioners should stay abreast of important new rules and proposed rules governing e-discovery in both the state and federal courts in New York. At that time, the New York State Bar Association had just released a report titled, " Best Practices in E-Discovery in New York State and Federal Courts ," which contains...

By Troutman Sanders LLP If you are ever responsible for responding to discovery in a lawsuit, by now you may have heard of something known as "predictive coding." Touted by many as a "game changer" in the realm of electronic discovery, predictive coding combines people and technology in a way that proponents say allows for faster, more cost-effective, and maybe even more accurate and reliable document...

We all know that litigants or potential litigants have an obligation to preserve potentially relevant and discoverable evidence, under certain circumstances, when litigation is reasonably forseeable. But what are your obligations when a third-party controls your documents? And what are your preservation obligations if you are a non-party to the suit? Preservation is a very fact-specific obligation that requires analysis...

By Philip N. Yannella and Maura E. McKenna In a move likely to be greeted as much with criticism as relief, the Pennsylvania Supreme Court recently adopted a very limited set of amendments to the Pennsylvania Rules of Civil Procedure that are expressly designed to make the eDiscovery process less complicated than in the federal system. The amendments , which take effect on August 1, 2012, affect rules relating to...

A Florida federal court judge imposed sanctions against TD Bank and its law firm, Greenberg Traurig, for "willfully" hindering and obfuscating the production of evidence that painted a much more culpable role of TD Bank in Scott Rothstein's $1.2 billion Ponzi scheme. The order by United States District Judge Martha G. Cooke comes after the successful attempt by a Rothstein investor, Coquina Investments,...

Hosted option for Concordance Evolution software offers speed and performance for e-discovery and review management August 13, 2012 - NEW YORK - LexisNexis® Legal & Professional ( www.lexisnexis.com ), a leading global provider of content and technology solutions, today announced the release of Hosted Concordance® Evolution from LexisNexis - a fully hosted service that delivers electronic discovery review...

By Philip N. Yannella and Christopher Corsi In a decision that will surprise some, the U. S. Court of Appeals for the Second Circuit recently held in Chin v. Port Authority [ enhanced version available to lexis.com subscribers ] that the failure to issue a litigation hold is not gross negligence per se . This decision runs directly counter to Judge Shira A. Scheindlin's controversial ruling in Pension Committee...

In a classic understatement, Judge Gale said in a North Carolina Business Court opinion last Thursday that " North Carolina case law addressing problems inherent in electronic discovery. . .is not yet well developed ." Op. ¶50. But in Blythe v. Bell , 2012 NCBC 42 [ enhanced version available to lexis.com subscribers ], the Judge went ahead and posted some road signs along that undeveloped and difficult...

Under the Federal Rules of Civil Procedure, and many state court rules, parties to litigation have an affirmative duty to cooperate with respect to discovery. Complying with this obligation often involves the disclosure of information related to preserving, collecting, filtering, and producing electronically stored information. Recent cases have found too much disclosure in the name of defending one's e-discovery...

The digital era has brought about changes to all forms of business communication, including voicemail. Historically, voicemail messages were stored on analog tapes, but, in the past decade, companies have increasingly utilized digital technology for their voicemail systems. Now, many companies have implemented or are considering "unified" systems - systems in which a company's telephone and computer systems...