Category Archives: E-Discovery

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GUEST BLOG: eDiscovery Update including AI for Technology Assisted Review

My Guest Blogger Melinda F. Levitt is a partner and litigation lawyer with Foley & Lardner LLP. Melinda’s practice focuses on complex commercial litigation, and has developed in-depth experience in complex electronic discovery matters and regularly publishes and speaks on a variety of eDiscovery developments and recommended best practices. She also is a member of the firm’s eDiscovery & … Continue reading this entry

Supreme Court Rules on Internet Privacy - Access to cell phone data requires court warrants!

The NY Times reported that the Supreme Court ruled in a “5-to-4 decision has implications for all kinds of personal information held by third parties, including email and text messages, internet searches, and bank and credit card records.”  The June 22, 2018 ruling in the case of  Carpenter v. US was reported in the June … Continue reading this entry

GUEST BLOG: Bad Behavior in eDiscovery is still very costly!

  My Guest Blogger Melinda F. Levitt is a partner and litigation lawyer with Foley & Lardner LLP. Melinda’s practice focuses on complex commercial litigation, and has developed in-depth experience in complex electronic discovery matters and regularly publishes and speaks on a variety of eDiscovery developments and recommended best practices. She also is a member … Continue reading this entry

CLOUD Act dramatically changes international privacy laws (and eDiscovery)!

Without any public hearings, review, or public comment Congress created the CLOUD Act which was signed into law as part of the $1.3 trillion government spending bill which changed the 1986 Stored Communications Act (SCA).  The SCA was created to protect privacy in telephone records and with the advent of the Internet has been used … Continue reading this entry

Cybersecurity Software: Kaspersky Lab filed a lawsuit against US government to enjoin federal ban!

Darkreading reported that Kaspersky Lab’s filed a motion for injunctive relief against the Department of Homeland Security’s ban which has “caused considerable reputational damage and loss of sales to the company in North America. The debarment has precluded Kaspersky Lab from doing business with the US federal government, while hurting its consumer and commercial business … Continue reading this entry

Here’s a good idea - don’t agree to cloud Click Agreements because the cloud is such a huge target for cybercriminals!

More businesses should use lawyers that understand how to negotiation cloud agreements because the Click Agreement don’t provide all necessary legal requirements given Cisco’s report that “The cloud is a whole new frontier for hackers, and they are exploring its potential as an attack vector in earnest…They also recognize that they can infiltrate connected systems … Continue reading this entry

GUEST BLOG: Attorney Client Privilege Lost in the Cloud!

My Guest Blogger Eddie Block (CISSP, CIPM, CIPP/G, CISA, CEH) is a senior attorney in Gardere’s Litigation Group and member of the Cybersecurity and Privacy Legal Services Team who focuses on all aspects of information cyber security, including credentialing functions, firewall and IDS deployment and monitoring, and penetration testing, and related complex litigation.  Eddie blogs at JurisHacker. Attorney Client Privilege … Continue reading this entry

Sure there are a kazillion eMails, but eMails are not automatically admitted as evidence!

A recent case made it clear that under Federal Rule of Evidence 803(6) there was no “absolute right to admission of emails under the business records exception.” In Roberts Technology Group, Inc. v. Curwood, Inc., No. 14-5677, 2016 U.S. Dist. LEXIS 64538 (E.D. Pa. May 17, 2016) the court found that: …the plaintiff had failed … Continue reading this entry

Microsoft contempt ruling overturned for failing to produce emails in Ireland!

In 1986 Congress passed the Stored Communications Act (SCA) to control telephone records long before the Internet we know today, but the SCA is the main law that Internet companies rely to protect users’ content and in 1986 in passing the SCA “Congress focused on providing basic safeguards for the privacy of domestic users.” Nonetheless … Continue reading this entry

Spoliation or Privacy “Right to be Forgotten”? – Google’s new service “My Activity” allows you to delete your history!

People should be thoughtful of using My Activity because destroying your Google history in litigation may lead to a claim of spoliation (destruction of evidence) when using Google’s recently launched My Activity which “is a central place to view and manage activity like searches you’ve done, websites you’ve visited, and videos you’ve watched.”  My Activity … Continue reading this entry

eDiscovery Advice to IT – be on high alert to protect electronic evidence under “Legal Hold”!

The concept of “Legal Hold” is not new in the least and long before anyone ever thought about electronic evidence (Electronically Stored Information- ESI) once a party became aware of potential litigation it had a duty to protect all relevant evidence, like paper documents.  So it comes as no surprise that an in recent IT … Continue reading this entry

Supreme Court thinks proportionality will help eDiscovery, but not everyone agrees

In support of the 2015 Amendments to the Federal Rules of Civil Procedure Chief Justice John Roberts said that “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”  On December 31, 2015 the Supreme Court released the “2015 Year-End Report on the Federal Judiciary” in … Continue reading this entry

eDiscovery Update - Lawyers Need to Embrace Business Intelligence (BI)

A recent IBM eBook points how that “in today’s competitive global marketplace, leading organizations are complementing their current approaches to business intelligence (BI) and analytics.”  IBM’s eBook is entitled “Forward Looking Business Intelligence” and given the scope and volume of Electronically Stored Information (ESI) in litigation today the use of BI seems pretty logical given … Continue reading this entry

Surprise! Cyberintrusions are Directed at eDiscovery Evidence

eDiscovery is the monster that ate Cleveland as everyone knows, but storing the ESI (Electronically Stored Information) is at risk to cyberintrusions since the ESI includes “highly sensitive information” as reported by my good friend Monica Bay in Legaltech News.  Monica’s August 18, 2015 story is entitled “Cybersecurity Infiltrates E-Discovery Managed Services” should be a … Continue reading this entry

7 Reasons for You to Worry About eMail eDiscovery

eDiscovery is the monster that ate Cleveland and email is the most significant volume of ESI in eDiscovery, and IDC “estimates that as much as 60% of this business-critical information is stored in email and other electronic messaging tools” and as result “email archives as they not only work to protect organizations from compliance and … Continue reading this entry

You Can’t Trust Crowdfunding Promises After Confession to the FTC

Immediately after filing a lawsuit  the defendant confessed that he spent monies on personal expenses even though he “raised more than $122,000 from 1,246 backers, most of whom pledged $75 or more in the hopes of getting the highly prized figurines” after he “launched a crowdfunding campaign to raise money from consumers purportedly to produce … Continue reading this entry

eDiscovery in Arbitrations

The American College of e-Neutrals (ACESIN) and the American Arbitration Association will conduct a training program entitled “Arbitrating in a Digital World – An eDiscovery Course for AAA® Neutrals” in 2015 in Los Angeles on February 19 & 20, Chicago on April 9 & 10, New York on June 11 & 12, and Washington, DC … Continue reading this entry

Special Masters Have an Important Role in Litigation

I am honored to be a member of the Academy of Court-Appointed Masters (ACAM) which provides the advantages that Special Masters “…can monitor discovery and resolve time-consuming disputes; they can help with the growing burden on courts caused by electronically stored information (ESI) discovery problems; they can be assigned trial duties…; they can administer settlement … Continue reading this entry

After Winning Jury Verdict of +$24 Million, Plaintiff Admits it Forged Evidence & Sent Fictitious Emails

A plaintiff confessed to his attorney “that the “Cerner contract” was not authentic…. that although there had been an actual contract with Cerner Corporation, that contract had been altered and had certain schedules attached to it that were forgeries.” In the case of LBDS Holding Company, LLC v. ISOL Technology Inc., et al in the … Continue reading this entry

Court Limits eMail Search Warrants

Search warrants were rejected because they required “…each Provider to disclose all email communications in their entirety and all information about the account without restriction.” On August 27, 2013 US Magistrate Judge David J. Waxse denied the government’s request under the 1986 Stored Communication Act to require Google, GoDaddy, Verizon, Yahoo!, and Skype regarding an … Continue reading this entry

eMails Costly to Samsung in Apple's $1 Billion Jury Verdict

Behind Apple’s huge verdict in the Samsung trial it’s likely that eMails may have caused the most damage to Samsung on two levels: first, Samsung destroyed eMails which led the Judge to instruct the jury that they should assume the destroyed emails were adverse to Samsung (the legal term is an “Adverse Inference”); and second, … Continue reading this entry

Litigation Hold for eDiscovery - Gross Negligence Standard Rejected

A recent ruling overturned the 2010 case where Judge Shira Scheindlin concluded that failing to issue a litigation hold was per se gross negligence. The Second Circuit Court of Appeals on July 10, 2012 ruled in Chin v. Port Authority of New York New Jersey that failure to issue a litigation hold is not per se gross … Continue reading this entry

New Law Course on eDiscovery & eEvidence

eDiscovery has transformed litigation and required that all lawyers understand Information Technology since more than 95% of all information is now electronic. I am happy to report that staring January 9, 2012 I will begin teaching a brand new course on eDiscovery & eEvidence at the SMU Dedman School of Law in Dallas. The SMU … Continue reading this entry