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An Inconvenient Forum - Reining In E-Discovery In The United States

An Inconvenient Forum - Reining In E-Discovery In The United States

"The costs of litigation, particularly for large companies, has continued to skyrocket as electronic discovery moves from the fringe of litigation to center stage. Long, protracted e-discovery disputes have become more common, and occur in an environment where pitfalls are questionably defined and liability can be daunting. In fact, a recent survey of attorneys conducted by the ABA demonstrated that a substantial majority of the interviewed attorneys agreed that e-discovery is not only overly burdensome, but has also disproportionately increased the cost of litigation. Cases are settled because of anticipated cost rather than on the merits of the action, and many lawsuits are simply not brought from fear of the cost of litigation. To preserve the function of the civil justice system, something must be changed.

Cooperation is the cornerstone to discovery, and e-discovery is no exception. However, in many cases the parties cannot agree on all aspects of e-discovery, and courts have been forced to intervene. The results are not always consistent, and litigants may find themselves in trouble, despite their best efforts to meet their obligations. Worse still, litigants may find themselves targeted by unscrupulous e-discovery practices by an opponent that are designed solely to drive up costs or convince the court to issue sanctions."

E-Discovery Takes A Turn - Charting The Course To Discovery From Social Networks

E-Discovery Takes A Turn - Charting The Course To Discovery From Social Networks

"Social networks are a relatively untapped discovery source that can contain a wealth of useful information. Because unsophisticated users of social networks will likely have difficulty preserving such data, the best source for discovery is to seek the production directly from the SNPs subscribed to by the user. For compliance with the SCA, counsel will be required to secure consent from the user, which can be compelled by a court. With the service of a subpoena and authorization from the user, counsel can begin the process of obtaining production from the SNPs.

Although some users have successfully argued that the privacy settings should dictate what information is discoverable, such an analysis defies the historically broad scope of discoverable information. For example, the fact that a party sends written correspondence to another in a sealed envelope, even marked confidential, does not render it undiscoverable. The same is arguably true for ESI, whether it is email or communications through social networks, regardless of whether the user designated the information as private."

Legal-IT Collaboration: An Oxymoron No Longer?

Legal-IT Collaboration: An Oxymoron No Longer?

"At a recent corporate client meeting held to determine whether an in-house legal e-discovery tool would be a good fit, the first item on the agenda was the cost. Before getting started, however, we had to stop the meeting so the IT and legal personnel charged with e-discovery compliance could introduce themselves to each other. Here it was, a meeting in 2011 about e-discovery, and the key players on both sides had never met.

This is not an atypical situation. In fact, findings from the recent benchmark study from the Compliance Governance and Oversight Council illustrate that corporate legal departments and the chief information officer's office still have a long way to go in establishing the necessary linkage and collaboration to tackle information governance (records & information management or RIM for purposes of this article) and specifically, to be ready for e-discovery. According to the study, "50% of companies had executive committees in place, yet only 17% felt that the right stakeholders were at the table.'"

Compliance in the Cloud and the Implications on eDiscovery

Compliance in the Cloud and the Implications on eDiscovery

"Today, nearly every corporation is required to preserve and produce electronically stored information (ESI), such as e-mails and other electronic documents, as part of their response to litigation, regulatory inquiries and subpoenas.

When the subject ESI happens to be stored in the cloud, there are a handful of potential obstacles that serve to complicate the electronic discovery process. For some this leads to sanctions and increased compliance risks.

In order to navigate these treacherous waters, companies need to be proactive and follow a "measure twice, cut once" approach. This article will point out ways to minimize compliance headaches when migrating significant data stores to the cloud."