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Be Cautious When Trying to Apply a Proportionality Test to Nullify Preservation Requests

Created on October 27, 2011


Vice President, E-Discovery

Most attorneys know that a proportionality test (cost-benefit analysis) will be applied when judging the fairness of a production request. But does this test apply to preservation requests too? In Pippins v. KPMG LLP, No. 11 Civ. 0377 (S.D.N.Y. Oct. 7, 2011), the court ruled that the answer is no. In this case, cost shifting or a limitation of the scope of the preservation request could not be applied.In Pippins, the defendants, KPMG, motioned for a protective order to limit the scope of the preservation request or shift preservation costs to the... Read More

The Challenge Continues: Protecting Privileged Information

Created on October 21, 2011


Vice President, E-Discovery

A frequent theme of e-discovery case law in 2011 is protecting attorney-client privilege in the e-discovery realm. Primarily due to mistakes and ignorance in dealing with electronically stored information (ESI), parties have inadvertently produced and subsequently waived their attorney-client privilege, disclosing to opposing counsel valuable private information. Not only does this impact case outcomes, but it can also bring about negative publicity and adversely affect brand reputation for the law firms and corporate clients they represent. Case in point: MSP Real Estate, Inc. v. City of New Berlin (E.D. Wis. July 22... Read More

Resources to Learn E-Discovery in a Straightforward and Simple Manner

Created on July 28, 2011


Vice President, E-Discovery

Every now and again as I read through blog, magazine, and vendor articles I come across an e-discovery news source that offers unique, easy to comprehend, and useful content. Since mid May, I really haven't found a better e-discovery educational source than the E-Discovery Basics series, published by the national law firm, Gibson Dunn. For the past three months Gibson Dunn has showcased its expertise and superb writing skill in this informative set of articles on how e-discovery impacts both the legal and IT world.Gibson Dunn's latest publication, 2011 Mid-Year E-Discovery Update... Read More

Issuing a Legal Hold: Some still don't know when to do it

Created on July 13, 2011


Vice President, E-Discovery

For five years, the 2006 amendments to the Federal Rules of Civil Procedure (FRCP) have been in effect, which in part extended the scope of litigation holds to electronically stored information. By now corporations, especially those dealing in interstate commerce should know and be familiar with these federal rules and what practices are needed to stay compliant. In 2008, the federal court set a judicial precedent that…“A party has a duty to preserve evidence when it knows, or should have know, that litigation was imminent."This standard seems pretty straightforward and simple. When... Read More

E-Discovery Malpractice: Major Law Firm Sued for Failure to Supervise Contract Attorneys

Created on June 16, 2011


Vice President, E-Discovery

J-M Manufacturing Company, Inc. v. McDermott Will & EmeryTake note law firms and in-house legal departments: outsourcing legal work may not transfer liability in electronic document review from the supervising party to the contracted party. On June 2, J-M Manufacturing (JM) sued its former representing legal counsel, McDermott Will & Emery for e-discovery legal malpractice, on the grounds that they produced 3,900 privileged documents in a pending lawsuit. JM's opposing counsel now refuses to return or destroy JM's privileged documents based on them waiving the attorney-client privilege by twice producing privileged documents... Read More

Meet and Confer: Facebook Must Go

Created on May 19, 2011


Vice President, E-Discovery

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011) E-Discovery rules apply to everyone, but apparently social media giant, Facebook did not receive the message. In a recent ruling, the defendant, Facebook, was instructed by the United States District Court (N.D. California) to participate in specific e-discovery procedures including participation in meet and confer conferences. Plaintiffs, RootZoo, Inc., Fox Test Prep, Steven Price, filed motions to compel production from Facebook. In these motions there were two major e-discovery disputes: (1) Facebook refusing... Read More