Insight into where e-discovery, information governance cybersecurity, and digital transformation are heading – who is doing what now or in the future, what works and what doesn’t, and what people wish they could do but can’t – gleaned from recent publications
Comments on the EDRM and Exterro survey of Federal judges:
- 6 E-Discovery Steps You Should Take to Meet Judges’ Expectations, from Tim Rollins (Exterro) – (1) understand your client’s preservation strategy; (2) know what the judge expects; (3) involve clients’ IT experts early and often; (4) educate your judge when necessary; (5) take “meet and confers” seriously; and (6) cooperate with opposing counsel.
- Federal Judges Feel They’re Still Too Involved In Your Discovery Process, from Joe Patrice (Above the Law) – “Come on, people! Can’t we at least get eDiscovery right?”
- Judges’ E-Discovery Sanctions Due to Bad Faith, Poor Communication: Report, from Victoria Hudgins (Legaltech News) – “The top causes of sanctions related to e-discovery are bad faith and poor communication….”
Mandatory initial disclosures report – In case you missed it, last May the Advisory Committee to the Northern District of Illinois Mandatory Initial Discovery Pilot Program (MIDP) issued a report on the results of a survey it conducted of MIDP participants. The bottom line, according to one judge: “No like!”
Emoji go to court – According to a report in The Verge, research from Santa Clara University law professor Eric Goldman has found an exponential rise in references to emoji and emoticons in US court opinions since 2004, and 30% of those opinions were in 2018. Read more about Professor Goldman’s research and thoughts about emoji and the law at What’s New With Emoji Law? An Interview.
CYBERSECURITY & DATA PRIVACY
Security breach notification laws – The National Conference of State Legislatures maintains a list of security breach notification laws, with links, for all 50 states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands.
CCPA public forums takeaways – Sidley lawyers Christopher Fonzone and Sheri Porath Rockwell discuss their takaways from public forums being held by the California Attorney General. These forums are intended to collect input about the California Consumer Privacy Act.
CCPA summary – King & Spalding has published a client alert, Start Aiming Now: The California Consumer Privacy Act (CCPA) Is A Moving Target, And GDPR Compliance Isn’t Enough, that discusses the scope and implications of the California Consumer Privacy Act.
Michigan adopts NAIC Insurance Data Security Model Law – Sidley lawyers Thomas Cunningham and Shay Banerjee report that Michigan has become the third state to adopt the National Association of Insurance Commissioners’ (NAIC) Insurance Data Security Model Law.
More adoption: EDPR, CTR, and GDPR – Sidley lawyers William RM Long, Francesca Blythe, and Jasmine Agyekum write about the implications of the adoption by the European Data Protection Board (EDPB) of an opinion on the interplay between the EU Clinical Trials Regulation (CTR) and the EU General Data Protection Regulation (GDPR).
Privacy Shield review – Sidley lawyers William RM Long and Francesca Blythe report both that in December the European Commission announced publication of its report on the second annual review of the EU-US Privacy Shield, and that last month the White House announced its intent to nominate Keith Krack as undersecretary of state for economic growth, energy, and the environment, in which role he will function as the ombudsperson for the Privacy Shield.
GDRP, CCPA, and court records – Discussing the conflict between individuals’ right to be forgotten and the public’s right to know, the author suggests that the CCPA’s Safe Harbor Provision is a better path than the GDPR’s approach.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
Predicting lawsuit outcomes – The law firm of Herbert Smith Freehills has completed the first stage of its development partnership with Solomonic and has agreed to a deal to roll out Solomonic’s litigation analytics platform across the firm’s UK dispute teams, reports Solomonic.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
2/7/2019 – FRCP 37(e) – U.S. Magistrate Judge denied plaintiff’s motion for spoliation sanctions on two grounds. First, the Court found that plaintiff failed to meet the third of three requirements of FRCP 37(e). Defendant had a duty to preserve the surveillance video in question. Defendant did not take any steps to preserve the video. Plaintiff did not, however, prove to the Court’s satisfaction that the video could not be replaced or restored. Second, the Court found that even if plaintiff had met all three requirements, plaintiff had not proven defendant’s failure to preserve the video was the result of bad faith. Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019).
Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading