Technology

Dial-up was still the norm for Internet connections, with T1 lines for corporations. Not everybody had BlackBerrys. Forensics was still done in DOS, mostly by ex-law enforcement. All but a few attorneys ignored electronic evidence and agreed not to produce it, or produced it by printing it out and hand-stamping a BATES number on it. Most electronic discovery was continue…

1. There will be increased adoption of early case assessment. Early case assessment will include early evidence assessment focused on risk, budget and other factors.
2. The majority of service providers will embrace the ACC Value Challenge from the unit price perspective and cause issues on the service side (otherwise known as the race to the bottom).
3. Certification will start to be a prerequisite for an entry-level job in e-discovery services.
4. Data reduction validation affidavits will move toward the mainstream.
5. Cloud computing will be embraced without concern for jurisdiction and nexus issues, leading to surprises in taxation, intellectual property, privacy, continue…

Following were my predictions and what actually happened this past year:

1. White collar defendants will be sunk by criminal e-discovery evidence rules created by case law involving drug dealers and child pornographers. Although the first high-profile trial resulted in acquittal (Bear Sterns), the FBI conducted dawn raids and sweeps related to subprime lending, insider trading and other fraud. +1
2. The financial crisis will increase the volume of e-discovery in continue…

There was a rumbling anger beneath the usually calm demeanors of the employed counsel. This article will discuss the Value Challenge and Index as defined by ACC members. It will also give you a flavor of the divide between law firms and clients, with suggestions for what that divide means for those of us who are stewarding the electronic discovery process.

The ACC Value Challenge

Last year, the ACC released the ACC Value Challenge:

According to a recent issue continue…

The case involved a demoted police officer who wanted access to the metadata to prove notes were backdated.  Up until now, most cases have held that there must be a showing that metadata is necessary before ordering its production.  While this case may be applied narrowly for Arizona public records, it may impact other governmental entities and courts.

“It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as continue…

Some practitioners with experience crafted the provision.  Categories and sources can be identified, removing the potential requirement of indexing tapes to determine with continue…

The most significant changes are to Rule 6. Currently under Rule 6, intermediate weekends and holidays for some short time periods are excluded when counting deadlines…

The new Rule 6 adopts the “days-are-days” approach. When calculating a deadline, every day is counted, including intermediate weekends and holidays, for all time periods.

Docketing professionals will be quite busy figuring out the gift of time.

Other drastic changes to the FRCP are the new time periods in Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, continue…

Ashby Jones over at the WSJ law blog reports on the bellwether criminal trial in the financial meltdown. Along with other evidentiary motions, the judge, Frederic Block, was presented with motions regarding electronic discovery during the Bear Stearns hearing.

The judge also declined to rule on separate motions by the defense to preclude prosecutors from introducing evidence that a tablet PC used by Tannin and a trading notebook used by Cioffi have disappeared. During the Thursday hearings, prosecutors also said the government received a letter from Google in response to their inquiries indicating that Tannin’s gmail account was erased in March 2008 at a time when continue…

There are an amazing number of bills pending in Congress that would have implications litigation budgets and for ediscovery.  Some address motions to dismiss and fact pleading.  Others increase privilege protection during government investigations.  Others take away privilege protection in civil cases and open up confidential information.

There is another bill making plaintiff’s firms’ forwarded expenses deductible earlier than resolution of the case.

Most are in one house or the other.  The one negatively affecting privilege is in both.

Al Driver asked that I write about them for Metropolitan Corporate Counsel. The article contains bill numbers, sponsors and status as of Sept. 1, 2009.  Metropolitan Corporate Counsel continue…

Zubulake was the wake up call to the general bar because for the first time, very public consequences attached to not preserving or producing electronic data.

USENET and its progeny, open source communities, often work outside the normal legal and copyright conventions.  Here, a clear cultural issue emerged when technology was used to avoid consequences in the probable belief that the law was too slow and behind the times to do anything about it.

Dead wrong.  Not in NY, coincidentally, the same place Zubulake was decided.

One of the contributors to Carole Basri’s and my treatise, Ediscovery for Corporate Counsel, Chris Boehning continue…