E-Discovery Interview: Ralph Losey (Part 1)
By: Andrew Bartholomew
Few lawyers are more respected in the area of e-discovery than Ralph Losey. In addition to working as a partner at Jackson Lewis, he is a frequent blogger, writer and presenter on a host of e-discovery issues. Losey also teaches e-discovery courses at the University Of Florida College of Law. I recently had the privilege to speak with him as part of Exterro’s e-discovery podcast series. We covered a wide range of e-discovery topics and issues. This first recap (Part 1) focused on Losey’s passion for blogging, e-discovery education and proportionality as follows:
Bartholomew: How did you become so involved in this niche area of the law?
Losey: I went full-time e-discovery in 2006. I’m fortunate that my law firm went along with my crazy idea that I practice just in that area. I’ve been an avid computer user from the very beginning and have always been oriented towards technology. At the same, I’ve been a lawyer since 1980. For me, law and technology have always gone together. I know there are other lawyers out there who have been focusing on e-discovery since the late 90s, so I don’t consider myself one of the first. But I do consider myself the guy that writes a lot. That’s just what I enjoy to do. I write most every weekend a 3,000 or 4,000 word essay related to one of the many subjects in e-discovery and technology that interest me.
Click the arrow to listen to the full interview nowHow to Prepare for E-Discovery Supplementation Obligations and More
Law Technology News: Attorney Ross Cunningham provides best practices for supplementing e-discovery requests here
eDiscovery Journal: Consultant Chuck Rothman concludes his series on data processing here
Inside Counsel: Attorney Sophie Ross addresses different methodologies for managing the e-discovery process here
e-Discovery Team: E-discovery attorney Ralph Losey analyzes a recent report by the Rand Corporation that looks at e-discovery expenditures here
Electronic Discovery Law: K&L Gates bloggers look at a recent case in which the court ordered mirror imaging of personal computers here
eDiscovery Journal: E-discovery analyst Charles Skamser looks at the most requested features for early case assessment (ECA) tools here
E-Discovery Spoliation Claims: Can you get past the threshold question?
By Mike Hamilton, J.D.
The complexities that come with identifying and producing electronically stored information (ESI) in e-discovery has made the issue of spoliation a common battleground for parties to argue for sanctions or adverse inference instructions. But before one can prove that ESI was destroyed, they must first address the spoliation threshold question, “Did relevant evidence ever even exist”?
Kullman v. New York (N.D.N.Y. Apr. 4, 2012) provides an excellent illustration of this point.
In this employment litigation case, the U.S. District Court for the Northern District of New York rejected the plaintiff’s appeal for an adverse inference instruction due to the defendant’s alleged destruction of relevant evidence. The court’s reasoning was simple: the plaintiff did not prove that any relevant evidence was lost or even existed, leading Judge Gary Sharpe to state, “such unsupported conjecture and speculation do not justify the issuance of an adverse inference instruction.” Read more
U.S. Data Privacy Laws Challenge the E-Discovery Process
By: Andrew Bartholomew
If e-discovery wasn’t already difficult enough, U.S. data privacy laws are adding yet another challenge for corporate legal teams. Attorneys David Sorensen and John Rosenthal discussed the topic on a recent Exterro webcast U.S. Privacy Laws and E-Discovery: Navigating a Brave New World. “There historically have not been that many laws on the books to protect individuals’ privacy,” said Rosenthal during the presentation. “That all is in a fundamental shift. We are seeing both at the federal and the state level not just the adoption of new laws but the interpretation of existing laws, statutes and provisions to provide for greater privacy over individuals’ information.”
This represents a major paradigm shift for corporations. Traditionally, information stored on a company server has been, under most conditions, the sole property of the company. The situation has become far more nebulous in the digital age. According to Rosenthal, there are now approximately 25 federal laws and regulations that assert privacy either over employee or customer information. These include overarching federal laws, such as the 4th amendment of the constitution, as well as industry specific regulations, such as the Health Insurance Portability and Accountability Act (HIPAA) that governs patient privacy.
Eastern District of Texas Follows Federal Circuit Court’s Lead with its own Model Order Regarding E-Discovery in Patent Cases
Inside Counsel: Attorneys Rob McFarlane and Russ Peterson explain a new e-discovery model order in the Eastern District of Texas here
The eDiscovery Paradigm Shift: E-Discovery expert Charles Skamser looks at the future of e-discovery software here
eLessons Learned: Seton Hall law student Lauren Winchester reports on a recent criminal case in which the government was not required to produce ESI in the manner requested by the defendants here
e-Discovery Team: E-discovery attorney Ralph Losey has part two of his series on proportionality cases here
Law Technology News: Attorney Mary Pat Gallagher reports that a New Jersey supreme court committee is proposing sweeping changes to criminal-case discovery here
eDiscovery Journal: Part two of e-discovery consultant Chuck Rothman’s series on data processing here
On Demand Webcast – U.S. Privacy Laws & E-Discovery: Navigating a Brave New World
Aired Date: 4/12/12
In the age of the Internet, social media and other sophisticated forms of technological communication, the lines have been blurred as to what constitutes private information, adding a new challenge in managing electronically stored information (ESI). Typically thought of as an international e-discovery issue, this is one of the critical challenges lawyers face – understanding what can and cannot be produced in U.S. courts.
In this webcast, e-discovery privacy experts, David Sorensen and John Rosenthal, explored the challenges of managing e-discovery while accounting for U.S. privacy laws, including:
• The specifics and application of the Stored Communications Act, U.S.C. 18 §§ USC 2701-12
• Recent case law surrounding U.S. data privacy practices during discovery
• Best practices for managing e-discovery requests involving potentially privileged data, including accessing ESI on social media sites
Speakers:
Robinson v. City of Arkansas: A Refresher on How to Respond, Object to Discovery Requests
By Mike Hamilton, J.D.
It has become a common practice in e-discovery for responding parties to object to discovery requests as overly broad and burdensome without providing much in the way of support. Maybe because parties think courts lack the knowledge and expertise to discern what constitutes undue burden, they think they can get away with making frivolous proportionality claims. An example of this was recently displayed in Robinson v. City of Arkansas City, Kansas (D.Kan. Feb. 24, 2012). In this civil rights/employment law case, the plaintiff, Trence Robinson, served the defendant, Arkansas City, with production requests that the defendant claimed were “grossly overbroad” and “seeking irrelevant information.”
This case originated out of a claim by the plaintiff that the defendant, his former employer, did not give him a promotion or a pay raise based on his race. The court granted and denied, in part, both motions from the defendant (protective order) and the plaintiff (motion to compel). Most notable from the ruling, Judge Gerald Rushfelt found that on top of the numerous production gaps by the defendant in responding to the plaintiff’s discovery request, the defendant failed to produce information collected from the most obvious custodian of all – the plaintiff. “It is inexcusable, furthermore, to respond to a request for production without reviewing the computer of a primary actor in the sequence of events leading to litigation,” stated Judge Rushfelt. The defendant was then ordered by the court to produce a “mirror image” of the plaintiff’s missing hard drives from the production response. Read more
Reflections from the 6th Annual Sedona Conference® Institute Program on Staying Ahead of the eDiscovery Curve
By: Andrew Bartholomew
The Sedona Conference® Institute held its 6th Annual Program on Staying Ahead of the eDiscovery Curve at the end of March. As one of the event’s corporate sponsors, Exterro’s e-discovery counsel, Bob Rohlf attended and participated in the strategic discussions. I had a chance to speak with Bob about some of his key takeaways from the conference. Following is an excerpt from our conversation:
BARTHOLOMEW: For those who aren’t familiar with the Sedona Conference Institute or the annual Program on Staying Ahead of the eDiscovery Curve program, can you briefly describe the event and talk about some of the experts who presented this year?
ROHLF: The Sedona Conference Institute is the continuing legal education arm of The Sedona Conference Working Group Series, which was established in 2002 to confront challenges faced by the legal system, including, of course, e-discovery. The “Staying Ahead of the E-Discovery Curve” conference is a program that began in 2007. It’s an annual, two-day conference dedicated to the exploration of everything e-discovery, including case law, rules, key trends and best practices. The program is highly educational and distinguishes itself from other events by really promoting interaction between panels and attendees to foster a true dialogue around these important issues. Leading those discussions this year was a bevy of e-discovery luminaries, from judges, like Hon. David Waxse and Hon. Nan Nolan, to prominent attorneys and e-discovery experts, such as Ralph Losey, Jonathan Redgrave, Sherry Harris and Sedona’s own Ken Withers . I was pleased to see Jerone English from Intel and Jonathan Palmer from Microsoft, as well as other thought leaders from the corporate legal side, who were able to relay some of the unique challenges that come along with managing e-discovery operations in-house.
