Anyone who has been involved in moderately complex patent litigation is aware of the immense time and expense devoted to electronic discovery (“e-discovery”). The laborious process of negotiating with adversaries over search terms, custodians and metadata and then culling, producing and reviewing the many gigabytes of electronic data, particularly electronic communications, often yield little probative information. To reduce and streamline e-discovery costs, Chief Judge Randall R. Rader of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) introduced the Model Order on E-Discovery in Patent cases (“Model Order”) on September 27, 2011. This article describes the impetus for the Model Order, its key aspects and its implementation by district courts. It further discusses whether and how litigants and potential litigants should modify their strategy in complying with ediscovery including collecting, reviewing and producing documents for litigation, preparing discovery requests, negotiating with opposing counsel, drafting litigation holds and preserving electronically stored information (“ESI”). Finally, this article addresses whether the approach taken under the Model Order is conducive to non-patent complex civil litigations.
Should the Federal Circuit’s Model E-Discovery Order Change the Way You Conduct E-Discovery for Patent Litigation?, Contributed by Sapna Walter Palla, Kaye Scholer LLP « Bloomberg Law (Sapna Walter Palla)
E-Discovery For Defendants Cheat Sheet | Dechert LLP – JDSupra
After getting the latest favorable Facebook discovery decision in Largent v. Reed, and seeing that Largent cited to a recent New York case that we didn’t know about, we’ve come to the (probably belated) conclusion that the fast-developing area of e-discovery for defendants with respect to social media maintained by plaintiffs is worthy of a cheat sheet to keep up with the cases as they’ve come down. So here it is – a compilation of all the favorable opinions we’re aware of concerning the right of defendants to take the offensive on e-discovery in personal injury cases, rather than merely having to grin and bear it on the receiving end. As with our other posts of this nature, it’s in purely chronological order, and we’ll update it whenever we learn of additional case law, so if you on the right side of the “v.” win something, feel free to pass it along to us.
By the way, we’ve cited some Canadian cases as well, because, particularly early on, they’ve been cited several times on this side of the border. The citation forms may look unusual to American lawyers, but we’ve tried them out. This is how they appear on WL.
continued @ E-Discovery For Defendants Cheat Sheet | Dechert LLP – JDSupra.
Law360 Ranks Global 20 Law Firms — PRNewswire
1. DLA Piper
2. Baker & McKenzie LLP
3. Norton Rose Group
4. Clifford Chance LLP
5. White & Case LLP
6. Hogan Lovells
7. Linklaters LLP
8. Freshfields Bruckhaus Deringer LLP
9. Dewey & LeBoeuf LLP
10. Shearman & Sterling LLP
11. Jones Day
12. Mayer Brown LLP
13. Cleary Gottlieb Steen & Hamilton LLP
14. Latham & Watkins LLP
15. Orrick Herrington & Sutcliffe LLP
16. Weil Gotshal & Manges LLP
17. Skadden Arps Slate Meagher & Flom LLP
18. K&L Gates LLP
19. Paul Hastings Janofsky & Walker LLP
20. Reed Smith LLP
via Law360 Ranks Global 20 Law Firms — NEW YORK, May 17, 2011 /PRNewswire/ –.
EU Commission will revise data retention laws after critical report | Pinsent Masons LLP
The European Commission will update its Data Retention Directive after conceding that it does not always adequately protect privacy or personal data.
The Commission has said that it will review its data retention rules after adopting a report that criticises the effectiveness of the current law. The report was commissioned to provide feedback on the impact the Directive was having on businesses and consumers, and how it was being implemented in EU countries.
The evaluation report (44-page / 226KB PDF) said that data retention limits a person’s right to privacy and that protection safeguards were required to prevent breaches of security.
The Article 29 Working Party, which consists of the EU’s 27 national privacy watchdogs, and the European Data Protection Supervisor Peter Hustinx have recently both criticised data retention laws saying that they are disproportionate to the terrorist threat they are designed to protect against.
On Monday the UK Open Rights Group called the report on the Directive a ‘whitewash’, while the European Digital Rights organisation published a spoof evaluation report (27-page / 295KB PDF) claiming that the Directive was an “unprecedented violation of the fundamental rights of 500 million Europeans.”
The Commission said it would consider strengthening regulations of the storage, access to and use of retained data to improve the protection of personal data.
“The Commission will ensure that any future data retention proposal respects the principles of proportionality and is appropriate for attaining the objective of combating serious crime and terrorism and does not go beyond what is necessary to achieve this,” the report said.
“It will recognise that any exemptions or limitations in relation to the protection of personal data should only apply insofar as they are necessary,” the report said.
The report emphasised that, despite concerns over the use of personal data, data retention laws had been pivotal to preventing and solving crime.
“These data provide valuable leads and evidence in the prevention and prosecution of crime and ensuring criminal justice. Their use has resulted in convictions for criminal offences which, without data retention, may never have been solved,” the report said.
The Directive was established in 2006 to make it a requirement for telecoms companies to retain personal data for a period determined by national governments of between six months and two years.
The Commission decided to regulate following terrorist attacks in Madrid in 2004 and London in 2005.
via EU Commission will revise data retention laws after critical report | Pinsent Masons LLP.
Foreign Corrupt Practices Act: Aggressive Use of New Enforcement Tools By The Administration | Venable LLP – JDSupra
Enacted hastily in the post-Watergate Era’s ethical fever, the Foreign Corrupt Practices Act (FCPA) was designed to eliminate bribery of foreign officials by American companies doing business abroad. The FCPA does so by broadly prohibiting American companies from making corrupt payments to foreign officials and requiring companies to maintain books and records and accounting systems sufficient to ensure that a company’s outside auditors will discover corrupt payments.
The past 18 months have seen an unprecedented number of criminal and civil proceedings and settlements involving American companies, and in many cases, individual company officials for FCPA violations. Almost as remarkable as the recent law enforcement efforts of the U.S. Department of Justice’s Criminal Division (DOJ) and the U.S. Securities and Exchange Commission (SEC) are the unprecedented sword rattling of both agencies. Senior officials have made themselves available and spoke candidly not just on their considerable enforcement record, but also about personnel staffing details and enforcement policy initiatives usually not discussed publicly.
2010: Another Record-Breaking Year for FCPA Enforcement, Confirming “New Era” | Morrison & Foerster LLP – JDSupra
Since 2007, regulators and commentators alike have touted each passing year as a record-breaking year for FCPA enforcement. 2010 was no exception. Last year saw an explosion in the number of cases brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). The last 12 months also brought the imposition of record-breaking corporate fines and prison terms for individual defendants.
In November of last year, Assistant Attorney General Lanny Breuer, Criminal Division, DOJ, announced that “[W]e are in a new era of FCPA enforcement.”1 A look back at 2010 confirms Mr. Breuer’s statement—in the history of FCPA enforcement, there has never been a year quite like 2010.
International Law Firm Foley & Lardner LLP Switches to NetDocuments for Global Document Management – American Banking News
NetDocuments, a leading Software-as-a-Service (SaaS) content management service provider, announced today that the international law firm Foley & Lardner LLP (http://www.foley.com) has selected NetDocuments as its new document management service for its nearly 1,000 attorneys and 21 offices worldwide.
Foley was recognized in 2010 by CIO Magazine (http://www.cio.com) as one of the CIO 100 honorees, given annually to honor the top 100 companies worldwide that demonstrate strategic excellence in developing innovative information technology (IT). In fact, the firm has achieved this prestigious award seven of the past ten years. The firm also was named to the InformationWeek 500 list for five consecutive years for its client-focused technology.
NetDocuments offers global law firms, with their tens of millions of documents, a single, globally-accessible platform for its documents, emails and records, thus eliminating the capital-intensive model of maintaining client and server software, hardware, databases and other system software scattered across offices. Additionally, the NetDocuments service provides firms a very simple, yet secure way to collaborate and share with their clients.
E-Discovery: Why It Can Impact Your Law Suit | Vann & Sheridan, LLP
This issue of parties destroying or withholding e-discovery was most notably seen in the case, Victor Stanley, Inc. v. Creative Pipe, Inc. The Court found that the defendant did in fact destroy and withhold requested e-discovery, which resulted in Magistrate Judge Paul Grimm entering a default judgment in favor of the plaintiff. Additionally, Judge Grimm stated that the defendant’s actions constituted contempt of court and he ordered the defendant to be imprisoned for up to two years unless and until he paid the plaintiff’s attorney fees and costs.
The lessons to be learned from this are:
- businesses should prepare ahead of time to make sure all emails and electronic documents are backed up at the business/server level and not rely on individuals to do so on their computers;
- businesses should be prepared if they become involved in litigation and work earnestly with their attorneys to follow all the proper e-discovery protocol.
Such collaborative efforts will greatly improve your ability to furnish all the necessary electronic information.
via E-Discovery: Why It Can Impact Your Law Suit | Vann & Sheridan, LLP.
E-Discovery in Cross-Border Litigation: Taking International Comity Seriously | Venable LLP – JDSupra
With the possible exception of civil jury trials, no feature of the U.S. legal system is treated with as much apprehension abroad as pretrial document discovery. Most other national legal systems do not permit the kind of party-conducted and intrusive pretrial document discovery that U.S. litigators believe is essential to a full and fair settlement of disputes. Other countries restrict or prohibit parties from obtaining documents and often place pretrial investigation in the hands of judges. Differing fundamental views on the nature of state sovereignty and the proper balance of competing values in dispute resolution account for these differences in practice. The divergent value judgments have long been apparent in cases involving foreign litigants or witnesses in U.S. courts and have led foreign states to object to executing requests for documentary evidence for use in U.S. proceedings, sometimes frustrating the effective functioning of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.1 But the gulf between the United States and other countries when it comes to discovery practices has further widened with the rapid expansion of e-discovery in the United States.
This article discusses the ways in which the discovery of electronically stored information (“ESI”) poses special challenges to foreign litigants (both parties and nonparty witnesses) in U.S. courts – who are often stuck between conflicting legal obligations – and strains the channels of international judicial cooperation. We suggest that international comity, which the Supreme Court has explained should play a prominent role in district courts’ regulation of international discovery and should have heightened application when it comes to requests for ESI because unfettered e-discovery is so offensive to many foreign legal systems’ concepts of fairness, privacy, and sovereignty.
