A big welcome to Clearwell, customers, partners and employees!  Today, Clearwell Systems, a leader in eDiscovery, is now part of Symantec.  This means our two teams are officially working together to provide both Clearwell and Symantec customers exceptional end-to-end information management solutions spanning archiving, backup and eDiscovery.

We have already begun work on more robust integration between Clearwell and Enterprise Vault.  Our goal is to provide Symantec customers access to enhanced eDiscovery functionality and Clearwell customers access to a broader set of integrated information management solutions from one vendor – Symantec. Together we will help customers:

• Reduce costs across all phases represented in the Electronic Discovery Reference Model, from information management through review and production
• Reduce risk by improving the defensibility and repeatability of their archiving and eDiscovery processes
• ...

The landmark sanctions order in Phillip M. Adams & Associates v. Dell, 621 F.Supp.2d 1173 (D. Utah 2009) has been adopted by U.S. District Judge Ted Stewart.  Finally made available to the public last week after a nine-month delay (http://1.usa.gov/lz5Ekj), Judge Stewart’s order (http://bit.ly/iT5ciG- PACER, sign-up req’d) fully embraced the magistrate’s holding that organizations have an obligation to preserve relevant evidence after the duty to preserve attaches.  The court thus imposed a negative inference jury instruction against defendants Asustek Computer and Asus Computer Intl. for their evidence spoliation.  It should come as no surprise that the jury then returned a verdict against those defendants.

With the Adams sanction order finally in the books, it is worth reviewing why that decision was so noteworthy.

1.  ...

Judge Scheindlin has withdrawn her landmark opinions ordering the federal government to produce several categories of metadata in response to a FOIA request.  See National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency (S.D.N.Y. June 17, 2011).  Judge Scheindlin issued her order in connection with the parties' resolution of "their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit."

The court reasoned as follows:

"In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7,2011 (Docket # 41). I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record."

Significantly, the court indicated that her withdrawn opinions should have no precedential value:  "By withdrawing the...

The eDiscovery frenzy that has gripped the American legal system over the past decade has largely eluded our European counterparts.  This is due in large part to the broad and fastidious protections of European privacy laws.  Another reason is found in Europe’s narrower discovery rules, which forbid categorical document requests authorized by the Federal Rules of Civil Procedure.  The result is that many companies that operate in Europe may feel insulated from the need to implement eDiscovery-related information governance procedures.

Having a laissez-faire attitude toward information governance is troubling enough.  But taking no action to prepare for eDiscovery is worse.  That is especially the case for companies operating in Europe that maintain offices in the United States.  They may unwittingly fall into an “American style” discovery trap for unsuspecting litigants in foreign proceedings.  That discovery trap is 28 U....