Gibbons Law Alert

Gibbons Law Alert

Tagged: E-Data

Privacy Trumps Security as EU Court of Justice Invalidates Data Retention Directive

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Posted in E-Discovery: Legal Decisions and Court Rules

On April 9, 2014

In 2006, responding to terrorist attacks in London and Madrid, the European Commission impelemented a data retention directive (the “Directive”) seeking to harmonize EU member states’ retention of certain electronic data that is generated or processed by providers of electronic communications services or public communications networks. The Directive requires, among other things, that Internet service providers retain details of network user communications and information necessary to identify particular users for at least six months and, in some cases, up to two years.

Coming to a Close: Reflections on the Proposed Amendments to F.R.C.P. 37 Debate at the 2013 Georgetown Advanced eDiscovery Institute as the End of the Public Comment Period Nears

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 10, 2014

The proposed amendments to F.R.C.P. 37(e) would establish a single standard by which courts will assess culpability and issue sanctions for failure to preserve electronically stored information (“ESI”). Our previous blog post discusses the rule. The proposed amendments to F.R.C.P. 37(e) were recommended for adoption in 2010 and, on June 3, 2013, they were approved for public comment (as part of a package of amendments to several federal rules) by the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure. On August 15, 2013, the Committee officially published for public comment the full slate of proposed rule changes. Unsurprisingly, the proposed amendments have generated considerable feedback from the legal community and, indeed, the discussion took center stage at the 2013 Georgetown Advanced eDiscovery Institute on November 22, 2013. With little more than a week to go before the comment period expires, and with, to date, more than 600 comments already posted addressing various aspects of the proposed rule amendments, we thought it might be a good time to reflect upon the discussion at Georgetown, especially for those considering weighing in before the end of the public comment period.

Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 6, 2013

The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.

An International Standard for E-Discovery?

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Posted in Technology Developments and Issues

On March 18, 2013

The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.

Race to the High Court: Hoosier Racing Seeks High Court Review of Third Circuit’s Slashing of E-Discovery Cost Award

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 12, 2012

The skyrocketing costs of e-discovery in modern day litigation will now be getting at least some attention from the nation’s highest court. Not long ago we reported on a decision by the Third Circuit Court of Appeals to slash recovery of costs by a prevailing party under 28 U.S.C. §1920 in Race Tires America, Inc., et al. v. Hoosier Racing Tire Corporation et al., No. 11-2316 (3d Cir. Mar. 16, 2012). In Race Tires, the Third Circuit, while acknowledging a spilt in the circuits, held that costs sought and awarded under §1920 must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. Thus, certain e-discovery vendor activities — including conversion of the native files to TIFF images, the scanning of documents for the purpose of creating digital duplicates and the copying of the videos to DVD — could be reimbursed under the statute, while others, like consultant’s charges for data collection, preservation, searching, culling, conversion, and production, could not.

Not So Fast: Race Tires Court Gives a Flat to Momentum for Broad ESI Cost Shifting Under 28 U.S.C. §1920

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 27, 2012

A Third Circuit Court of Appeals panel, including the Hon. Thomas I. Vanaskie, one of the leading judicial authorities in e-discovery, has spoken — e-discovery-related cost recovery pursuant to 28 U.S.C. §1920 has limits; the costs must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. As the first United States Court of Appeals decision to directly address this closely watched issue, this opinion may disarm a potentially powerful weapon in the already limited arsenal of parties burdened with excessive e-discovery costs.

Not So Fast: 95 Million Reasons to Carefully Select and Limit Search Terms

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Posted in Litigation Preparedness and Strategies

On January 24, 2012

It has become commonplace for parties engaged in electronic discovery to discuss and agree upon “keyword” searches in an effort to limit the overall scope of discovery. A recent decision in the District of New Jersey, I-Med Pharma, Inc. v. Biomatrix, Civ. No. 03-3677 (DRD), (D.N.J. 2011), demonstrates the pitfalls that arise when the parties too eagerly agree to conduct a search for electronically stored information using an overly broad set of keywords. The case also demonstrates a court’s willingness to engage in proportionality analysis to cabin broad discovery.

Ineffective Privilege Review Leads to Inadvertent Waiver in Rolling Document Production

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Posted in Litigation Preparedness and Strategies

On December 9, 2011

Recently, a federal court in Illinois held in Thorncreek Apartments III, LLC v. Village or Park Forest that a defendant waived the attorney-client privilege when it inadvertently produced 159 documents that it later claimed were privileged. The defendant’s failure to take reasonably adequate measures to prevent such disclosure serves as a lesson for all attorneys, especially those who manage large, rolling document productions with the help of a vendor.

How Useful is Facebook’s “Download Your Information” Feature in E-Discovery?

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Posted in Litigation Preparedness and Strategies / Technology Developments and Issues

On May 11, 2011

In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you’ve ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.

The Rising Tide of Sanctions for E-Discovery Failures

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Posted in Litigation Preparedness and Strategies

On March 21, 2011

To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.

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