As debates about data privacy rage in the United States—the Wikileaks Twitter case is a recent and prominent example—it is important for multinational corporations and other potential litigants (both plaintiffs and defendants) not only to understand the nuances of the markedly different privacy definitions and security standards in the European Union (“EU”), but also to master this legal landscape with the indispensable help of expert local counsel in foreign jurisdictions. These differences are especially important given that U.S. courts engaged in the litigation discovery process routinely expect litigants to be able to produce relevant data through cross-border discovery according to the same standards and restrictions that apply at home. A highly informative webinar hosted by RenewData, a provider of services for the discovery, archiving, and governance of electronically stored information (“ESI”), and featuring Ken Rashbaum of the law firm Rashbaum Associates, discussed these issues and others vital to corporate counsel.
How To Make Sure Your Company’s Data Doesn’t Get Stuck In Europe – Ben Kerschberg – Law & Technology – Forbes
How To Make Sure Your Company’s Data Doesn’t Get Stuck In Europe – Ben Kerschberg – Law & Technology – Forbes
As debates about data privacy rage in the United States—the Wikileaks Twitter case is a recent and prominent example—it is important for multinational corporations and other potential litigants (both plaintiffs and defendants) not only to understand the nuances of the markedly different privacy definitions and security standards in the European Union (“EU”), but also to master this legal landscape with the indispensable help of expert local counsel in foreign jurisdictions. These differences are especially important given that U.S. courts engaged in the litigation discovery process routinely expect litigants to be able to produce relevant data through cross-border discovery according to the same standards and restrictions that apply at home. A highly informative webinar hosted by RenewData, a provider of services for the discovery, archiving, and governance of electronically stored information (“ESI”), and featuring Ken Rashbaum of the law firm Rashbaum Associates, discussed these issues and others vital to corporate counsel.
Do you know? Ten tips for effective litigation holds
The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.
The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:
- Describe the pending claim.
- Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.
- Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.
- Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.
Compliance Week: First Half Trends in Electronic Discovery Sanctions
It’s been a busy year already in the world of electronic discovery. Among other things, the first half of 2010 brought a number of new rulings related to e-discovery sanctions.
So far, litigants are seeking sanctions in fewer cases than in 2009, but sanctions are being awarded at almost the same rate, according to a mid-year update on e-discovery developments and trends by Gibson Dunn & Crutcher.
Of 103 e-discovery opinions issued from Jan. 1 – June 17 that were analyzed by GDC, litigants sought sanctions in 30 percent, or 31 cases, compared to 42 percent in all of 2009. They received sanctions in 68 percent (21) of those cases, compared to 70 percent in all of 2009.
Costs and fees associated with the discovery dispute itself were the most frequently awarded sanctions, imposed in 14 of the 21 cases in which courts imposed some kind of sanction. Adverse inference instructions were imposed in 4 cases, while other monetary sanctions were imposed in three cases.
via Compliance Week: The Filing Cabinet – » First Half Trends in Electronic Discovery Sanctions.
Delaware courts evolve to meet litigants’ needs | delawareonline.com
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Last week, the state’s Superior Court system — which handles civil and criminal cases along with business lawsuits — established a division designed specifically to give corporate litigants a more focused, predictable forum.
The stakes of upholding — and when possible, improving — the nation’s perceptions of Delaware courts are huge. Yet there is some evidence that big corporate lawsuits are already going elsewhere, and that Delaware’s dominant status is slowly slipping away — possibly for good.
Without that reputation, the state is at risk of losing the big firms that incorporate here and help fuel the economy with millions in tax revenue, observers say. Others doubt Delaware is in any real peril, and have faith that the high standards of its judges and the depth of its case law will continue to outclass any other jurisdiction.
But that doesn’t mean the people who operate Delaware’s system never question the status quo.
Over the years, Delaware has repeatedly tweaked its system to keep pace with the needs of litigants — with more success in some cases than in others.
There’s a recognition here that when they’re able, big companies will “shop” for jurisdictions that offer advantages — litigants want a court that is knowledgeable, reliable, and efficient enough to avoid long, expensive proceedings.
via Delaware courts evolve to meet litigants’ needs | delawareonline.com | The News Journal.
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Step 1 for Legal Holds: Trigger Events | Law.com
This series of articles provides an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the ”Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009). The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds. Although this series was conceived months ago, written litigation holds are now more important than ever in light of U.S. District Court Judge Shira Scheindlin’s Opinion and Order in The Pension Committee v. Banc of America, Case No. 05-cv-9016 (SDNY Jan. 11, 2010, as amended Jan. 15, 2010). Her introduction is a fitting opening to the series:
In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy.
Our focus is on helping organizations discharge their duty to preserve electronically stored information and other documents. Absent an effective litigation hold process, an organization will be unable to meet its duty to preserve ESI and other documents. As articulated by various courts (including The Pension Committee v. Banc of America) the failure to implement a written litigation hold is gross negligence. A finding of gross negligence at the onset of a spoliation analysis is a surefire way to be sanctioned. The only question that follows is how much is the sanction.
