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pfavro | 09 Jul 2013 | 1 comment

You have probably heard the news. Changes are in the works for the Federal Rules of Civil Procedure that govern the discovery process. Approved for public comment last month by the Standing Committee on Rules of Practice and Procedure, the proposed amendments are generally designed to streamline discovery, encourage cooperative advocacy among litigants and eliminate gamesmanship. The amendments also try to tackle the continuing problems associated with the preservation of electronically stored information (ESI). As a result, a...

pfavro | 10 May 2013 | 0 comments

Apple obtained a narrow discovery victory yesterday in its long running legal battle against fellow technology titan Samsung. In Apple Inc. v. Samsung Electronics Co. Ltd, the court ordered non-party Google to turn over the search terms and custodians that it used to produce documents in response to an Apple subpoena.

According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search...

pfavro | 14 Dec 2012 | 3 comments

With the New Year quickly approaching, it is worth reflecting on some of the key eDiscovery developments that have occurred during 2012. While legislative, regulatory and rulemaking bodies have undoubtedly impacted eDiscovery, the judiciary has once again played the most dramatic role.  There are several lessons from the top 2012 court cases that, if followed, will likely help organizations reduce the costs and risks associated with eDiscovery. These cases also spotlight the expectations that courts will likely have for organizations in 2013 and beyond.

Implementing a Defensible Deletion Strategy

Case: ...

AlliWalt | 18 Oct 2012 | 0 comments

The eagerly awaited Directive from The Office of Management and Budget (OMB) and The National Archives and Records Administration (NARA) was released at the end of August. In an attempt to go behind the scenes, we’ve asked the Project Management Office (PMO) and the Chief Records Officer for the NARA to respond to a few key questions. 

We know that the Presidential Mandate was the impetus for the agency self-assessments that were submitted to NARA. Now that NARA...

pfavro | 18 Sep 2012 | 2 comments

The eDiscovery craze that has gripped the U.S. legal system over the past decade has been ignored in much of Europe. This is due in large part to Europe’s discovery rules, which generally forbid categorical document requests and other broad discovery procedures authorized in the U.S. by the Federal Rules of Civil Procedure (FRCP). Without the impetus created by eDiscovery demands, many companies operating in Europe may feel insulated from the need to implement an eDiscovery-oriented defensible deletion strategy. Yet the need for such a strategy – focused on reducing the costs...

pfavro | 27 Aug 2012 | 0 comments

Electronic discovery has been called many names over the years. “Expensive,” “burdensome” and “endless” are just a few of the adjectives that, rightly or wrongly, characterize this relatively new process. Yet a more fitting description may be that of a glass house since the rights and responsibilities of eDiscovery inure to all parties involved in litigation. Indeed, like those who live in glass houses, organizations must be prepared for eDiscovery stones that will undoubtedly be thrown their way during litigation. This potential reciprocity is especially...

Matthew Nelson | 24 Aug 2012 | 8 comments

The tears of sadness shed by those in the eDiscovery community lamenting the end of the predictive coding debate in Kleen Products may turn to tears of joy when they realize that the debate could resurface next year. Despite early reports, the Plaintiffs in Kleen did not completely roll over on their argument that defendants should be required to use what they characterize as “Content Based Advanced Analytics” (“CBAA”). To the contrary, Plaintiffs preserved their right to meet and confer with Defendants about future document productions after October 1, 2013. Not surprisingly, future document productions could rekindle the fiery...

pfavro | 17 Aug 2012 | 0 comments

One of the more troubling eDiscovery issues that globalization has inadvertently imposed on organizations is compliance with a complex set of international data protection and privacy laws. These laws present a significant challenge to U.S. companies, which enjoy fewer domestic restraints on collecting and storing personal data of its employees and consumers.

It’s not that these laws are unfamiliar concepts to U.S. corporations. Contrary to popular belief, statutes and regulations do exist in the U.S. to help protect certain personal and financial information from unauthorized disclosure. Nevertheless, the U.S. approach to data protection is mostly patchwork and is unmatched by the comprehensive...

Dean Gonsowski | 14 Aug 2012 | 2 comments

In the 1999 Academy Award-winning movie, Being John Malkovich, there’s a scene where the eponymous character is transported into his own body via a portal and everyone around him looks exactly like him.  All the characters can say is “Malkovich” as if this single word conveys everything to everyone.

In the eDiscovery world it seems lately like predictive coding has been Malkovich-ized, in the sense that it’s the start and end of every discussion. We here at eDiscovery 2.0 are similarly unable...

pfavro | 30 Jul 2012 | 2 comments

Samsung Electronics and its electronic information retention practices received a strong rebuke this week in Apple v. Samsung Electronics. In this hotly contested patent dispute involving smartphones and tablet computers, the court issued an adverse inference jury instruction to sanction Samsung for the “conscious disregard” of its obligation to retain relevant emails. In so doing, the court emphasized three “golden rules” of eDiscovery that Samsung failed to observe: 1) issue a timely and comprehensive...