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

ABOVE THE FOLD

E-Discovery Day events – Dec. 4 will be the fifth annual E-Discovery Day. So far there are 13 webinars and 11 in-person events listed on the E-Discovery Day website.

• At 9 am ET, join my colleague Will Lucina at the ACEDS DC Education Symposium for a panel about business development, Maximizing Your Business Development Partner Relationships. Also speaking on the panel will be Candace Berardi of Trustpoint.One, Amanda Strassner of Merrill, Hunton, Andrews, Kurth, and Lana Pellegrino of Casepoint.
• At 3 pm CT, join Derek Miller, Ryan Joyce, and Sarai Schubert, all with Ipro, and me for a E-Discovery Day webinar, 30 Years of eDiscovery – Industry Veterans Discuss Where We’ve Been and What the Future Holds.

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

Mary Mack’s and Kaylee Walstad’s plans for EDRM – Chris Dale published a video interview of Mary Mack and Kaylee Walstad, in which they discuss EDRM and their plans for it.

New e-discovery benchmarking report – Exterro, ACEDS, and In The House have published their 2019 In-House Benchmarking Report, in which they discuss conclusions drawn from a survey of in-house legal personnel about e-discovery, legal services, information governance, and data privacy.

Amendments to New Jersey’s evidence rules – Abigail Luhn and Kaitlyn Stone of Drinker Biddle wrote that as a result of the increasing use of electronic discovery in litigation and the attendant high risk of inadvertent disclosures, the New Jersey Supreme Court has adopted proposed amendments to the New Jersey Rules of Evidence. The amendments change the substance of N.J.R.E. 530 (Waiver of Privilege by Contract or Previous Disclosure; Limitations); the substance of N.J.R.E. 608 (Evidence of Character for Truthfulness or Untruthfulness and Evidence of a Prior False Accusation); and the styling of 46 other Rules of Evidence. These amendments take effect on July 1, 2020.

On text messages – Melinda F. Levitt of Foley & Lardner prepared a detailed article on the discovery of text messages and the attendant threat to privacy.

On sanctions – Matthew Verga of XDD has put together a set of five articles on spoliation decisions since the Dec. 2015 amendments to the Federal Rules of Civil Procedure:

• When the Bough Breaks, Spoliation Sanctions Part 1
• Reasonable Steps to Preserve ESI, Spoliation Sanctions Part 2
• Intent to Deprive, Spoliation Sanctions Part 3
• Courts’ Inherent Authority to Sanction, Spoliation Sanctions Part 4
• Other Limitations on Sanctions, Spoliation Sanctions Part 5

CYBERSECURITY & DATA PRIVACY

Online Privacy Act of 2019 introduced – Gretchen A. Ramos & Jonathan H. Becker of Greenberg Traurig reported that on Nov. 5, California Congresswomen Anna G. Eshoo and Zoe Lofgren introduced the Online Privacy Act of 2019, H.R. 4978. The bill’s summary states that it is “To provide for individual rights relating to privacy of personal information, to establish privacy and security requirements for covered entities relating to personal information, and to establish an agency to be known as the United States Digital Privacy Agency to enforce such rights and requirements, and for other purposes.”

E-DISCOVERY CASE LAW

Recent e-discovery decisions

9/16/2019 – In a case of crime and coverup, U.S. District Judge Gary Feinerman granted defendant’s motion for spoliation sanctions. Following an evidentiary hearing, the Court found that plaintiff destroyed files on his laptop computer by installing a new operating system and committed perjury in denying that he had done so. The overall story is long and convoluted, but here is the essence: The day after plaintiff notified defendant of his intent to sue, defendant sent plaintiff a preservation letter. Defendant subsequently requested that plaintiff return his company-issued laptop. Defendant attempted to gather files from the laptop but was unable to because a new operating system had been installed, a process that also deleted old files from the laptop. Meanwhile, in response to document requests plaintiff repeatedly stated that the requested documents could be found on the returned laptop. Plaintiff also repeatedly denied having installed a new operating system on the laptop before returning it to defendant. Taking into consideration the evidence before it, the Court found that defendant had shown by a preponderance of that evidence that plaintiff engaged in spoliation with the requisite intent. The Court next found that defendant had proved by preponderance of the evidence that defendant’s spoliation was willful. In addition, the Court found that plaintiff perjured himself when he repeatedly denied having reinstalled the operating system. After considering sanctions options, the Court dismissed plaintiff’s claims with prejudice and ordered him to pay attorney fees and costs. Williams v. American College of Education, Inc., 16 C 11746 (N.D. Ill. Sept. 16, 2019).

ANNOUNCEMENTS

ADDITIONAL ARTICLES

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

12/2/2018-12/27/2019 EVENTS