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The Effects of the Newly Published E-Discovery Protocol on Federal Criminal Cases

Created on April 26, 2012

Vice President, E-Discovery

When most people talk about e-discovery, it's discussed in the context of civil litigation. But with the creation of a new e-discovery protocol regulating e-discovery behavior in federal criminal legal matters, civil law's long-lost counterpart, criminal law, can no longer be neglected when it comes to e-discovery. Officially titled, “Recommendations for ESI Discovery Production in Federal Criminal Cases," the protocol is designed to address the emerging problem that electronically stored information (ESI) presents in criminal cases (e.g., social media, email, etc.).As the protocol states below there are numerous opportunities to streamline the... Read More

BREAKING NEWS! Spoliation of Evidence (e.g. Text Messages) Leads to the Arrest of a Former BP Engineer

Created on April 24, 2012

Vice President, E-Discovery

As reported back in late March (see Re-purpose Your E-Discovery Process for Effective Regulatory Inquiries), organizations and their employees are being presented with additional e-discovery challenges when responding to regulatory inquiries outside the civil context, like the risk of criminal charges for obstruction of justice. Kurt Mix, former BP engineer, has become the next e-discovery poster child for non-compliance.Tuesday, Mix was arrested by the Department of Justice (DOJ) for two counts of obstruction of justice on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater... Read More

E-Discovery Interview: Ralph Losey (Part 1)

Created on April 23, 2012

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... Read More

E-Discovery Spoliation Claims: Can you get past the threshold question?

Created on April 18, 2012

Vice President, E-Discovery

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... Read More

Eastern District of Texas Follows Federal Circuit Court's Lead with its own Model Order Regarding E-Discovery in Patent Cases

Created on April 16, 2012

Inside Counsel: Attorneys Rob McFarlane and Russ Peterson explain a new  e-discovery model order in the Eastern District of Texas hereThe eDiscovery Paradigm Shift: E-Discovery expert Charles Skamser looks at the future of e-discovery software hereeLessons 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 heree-Discovery Team: E-discovery attorney Ralph Losey has part two of his series on proportionality cases hereLaw Technology News: Attorney Mary Pat Gallagher reports that a New Jersey... Read More

Reflections from the 6th Annual Sedona Conference® Institute Program on Staying Ahead of the eDiscovery Curve

Created on April 10, 2012

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... Read More

Controlling E-Discovery Spending Sprees: Will the courts put a stop to the madness?!

Created on April 4, 2012

Vice President, E-Discovery

Electronic discovery is expensive. Identifying, collecting, processing, analyzing and finally producing electronically stored information (ESI) to opposing counsel is time consuming and resource intensive. Besides the costs of producing data, expenses are multiplied by the current adversarial nature of litigation. “In some cases discovery becomes a tool with which to bludgeon the other side into submission," wrote Judge Joe Brown in a recent ruling. “Rather than monitoring and moderating the process," parties are in many cases simply “throwing gasoline on the fire."Judge Brown's pointed rebuke was in response to Lubber, Inc. vs... Read More