Discovery Advocate

Discovery Advocate

News, Developments and Practical Advice on eDiscovery in the trenches of Litigation

Developing or Enhancing “Bring Your Own Device” Programs – Your First Five Questions . . .

Posted in Employment, Information Governance, Privacy, Your First Five Questions

magnifyingglass_000001973994_First Five Questions

This is the second blog post in Discovery Advocate’s new series, “Your First Five Questions,” in which we identify a question commonly (or sometimes not so commonly) seen in practice followed by the first five questions you might ask and why. Have a scenario you’d like us to address? Contact us.

Your client, a multinational whose business involves regular cross-border data transfers, solicits your help with the development and implementation of an effective and compliant “bring your own device” (BYOD) program to address employee use of personal mobile devices for work purposes. What are your first five questions? Continue Reading

Preservation by Backup Tape – Your First Five Questions . . .

Posted in E-Discovery Rules, Preservation, Your First Five Questions

magnifyingglass_000001973994_First Five QuestionsThis is the inaugural post in Discovery Advocate’s new series, “Your First Five Questions,” in which we identify a question commonly (or sometimes not so commonly) seen in practice followed by the first five questions you might ask and why. Have a scenario you’d like us to address? Contact us.

Your new client, a Fortune 500 company with a significant litigation portfolio, has suggested that the easiest way to comply with legal hold obligations for 100 custodians potentially at issue in a new false advertising class action is to remove a set of disaster recovery backup tapes from rotation. What are your first five questions? Continue Reading

Preparing for the December 2015 Changes to the Federal Rules of Civil Procedure

Posted in E-Discovery Advocacy and Management, E-Discovery Rules

The package of changes to the Federal Rules of Civil Procedure presents a powerful opportunity to cut litigation discovery costs, risks and burdens – particularly for skilled legal advocates and businesses that are prepared. And, although the changes are not expected to take effect until December 1, 2015, some courts are already looking to them as the benchmark for discovery best practices.

Watch E-Discovery Advocacy and Management team leader Karin S. Jenson discuss the expected practical impact of the changes and how we are working with our attorneys, clients, and contacts to get ready.

To help companies prepare, BakerHostetler’s E-Discovery Advocacy and Management team is offering in-house or webcast clinics to fully brief legal, business, and IT teams on the intricacies and practical application of the changes. We customize the clinics to cover anything from just the basics – packaged by subject matter, such as how the changes collectively will affect a company’s duty to preserve evidence – to a more in-depth analysis of the disputes we anticipate under the new rules. Click here for our detailed program brochure.

To arrange for a clinic or to learn more about the anticipated rules changes, please contact Karin S. Jenson at kjenson@bakerlaw.com or 212.589.4266.

James Sherer Discusses Cross-border Bring Your Own Device (“BYOD”) eDiscovery and Data Privacy Issues

Posted in E-Discovery Rules, Privacy

Counsel James Sherer, co-leader of BakerHostetler’s Information Governance team, sat down with Kroll Ontrack’s Michele Lange and Eric Robinson for a Legal Talk Network ESI Report on 2015 Trade Shows and Trends in E-Discovery.  Sherer discussed trends associated with cross-border Bring Your Own Device (“BYOD”), related data privacy and eDiscovery considerations, and the upcoming amendments to the Federal Rules of Civil Procedure (“FRCP”) amendments.

Listen to the podcast on 2015 Trade Shows and Trends in E-Discovery here.

Sherer had previously joined Legal Talk Network for a podcast on 2015 resolutions in the field of eDiscovery, where he discussed trends in information governance and thoughts on the intersection between eDiscovery and data privacy in an age of growing connectivity.

Listen to the podcast on E-Discovery Goals and Resolutions for 2015 here.

Bring Your Own Device (Everywhere): Legal and Practical Considerations for International BYOD Programs

Posted in Employment, Information Governance, Privacy

The cross-use of mobile devices for personal and professional purposes, commonly referred to as “Bring Your Own Device” or “BYOD”, is a relatively recent phenomenon that has created a host of legal and practical challenges for organizations of all sizes. Implementing a BYOD program is especially complex for companies that have employees who regularly travel internationally, taking their devices (and corporate data) along with them when they cross borders.

In a recent article published by the Richmond Journal of Law & Technology, Wherever You Go, There You Are (With Your Mobile Device): Privacy Risks and Legal Complexities Associated with International “Bring Your Own Device” Programs, we provide in-depth analysis of a number of key BYOD considerations, including:

  • Current BYOD adoption rates and trends around the world;
  • The tension between organizational control of mobile devices and employee privacy;
  • Existing laws, regulatory guidance, and jurisprudence applicable to BYOD programs;
  • Concerns associated with BYOD in the eDiscovery context; and
  • Approaches to BYOD in France, Germany, Spain, and the United Kingdom.

The article also provides a detailed list of questions and issues for organizations to consider when developing or improving a BYOD program.  For example, would the organization be better served by a “corporate-owned, personally enabled (“COPE”)” or a “corporate-owned, business-only (“COBO”) strategy?  How will the organization address employee separation and device disposal procedures?  And if the organization has operations in the European Union, how may the forthcoming revisions to the EU Data Protection Regulation impact the company’s BYOD program?  Thoughtful consideration of these and the many other issues discussed in the article should help organizations avoid implementation and compliance problems down the road.

Download a PDF of the article.

Editor’s Note: This blog post is a joint submission with BakerHostetler’s Data Privacy Monitor blog.

Karin Scholz Jenson Discusses E-Discovery in Q&A for Recommind Blog Article

Posted in E-Discovery Advocacy and Management

Partner Karin Scholz Jenson, national leader of BakerHostetler’s E-Discovery Advocacy and Management team, participated in a question-and-answer session with Senior Discovery Counsel for Recommind, Inc., Philip Favro. Jenson’s responses appeared in a March 17, 2015, blog post on Recommind.com and addressed topics including predictive coding, FRCP amendments, the effects of mobile devices on ESI preservation and production, and lessons from her experience on a New York City jury in 2014.

Read the article.

Judge Peck’s Latest Decision on Technology Assisted Review (TAR): Our Past Blog Posts Revisited

Posted in Predictive Coding, TAR

Many who consider Magistrate Judge Peck’s recent opinion and order in Rio Tinto PLC v. Vale S.A., which he titled “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) – Da Silva Moore Revisited,” will focus on his declaration “that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” We’ll revisit that statement in a moment, but first note that it is also black letter law that important discovery decisions get revisited. See, e.g., The Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, subtitled “Zubulake Revisited: Six Years Later.”

That said, Judge Peck’s opinion in Rio Tinto is important and is required reading, and his analysis justified revisiting Da Silva Moore, which we have previously discussed.

Transparency – Holding TAR to a Higher Standard Continue Reading

From Sedona to Georgetown to New York—What’s Fashionable in eDiscovery This Year?

Posted in E-Discovery Advocacy and Management, E-Discovery Rules, LegalTech, TAR, The Sedona Conference

It’s that time of year, when bench, bar, vendors, and clients think big eDiscovery thoughts. They go to The Sedona Conference (which is not in Sedona), Georgetown Law’s Advanced eDiscovery Institute (which is not at Georgetown Law—but close!), and in a few short months, LegalTech New York (which, bucking the trend, is in New York).

The Sedona Conference All Voices Meeting

The 2014-15 eDiscovery conference season began in New Orleans with The Sedona Conference’s first “All Voices” meeting (“All Voices”), which brought all the current Sedona Working Groups together under one roof. In addition to Sedona-specific topics, such as proposed updates and revisions to the Sedona Principles and next steps for each Working Group, The Sedona Conference provided panels on a variety of eDiscovery-specific and ‑related topics.

Oriented across plenary and Working Group-specific sessions, All Voices provided insight into the proposed Federal Rule Amendments and their implications for eDiscovery practices, along with a panel discussion on professional responsibility. There were discussions of Privacy and Data Security Issues in eDiscovery for Law Firms and Third-Party Service Providers and related considerations for Bring Your Own Device, or “BYOD,” preservation and discovery; opinions on cross-border corporate investigations; and the application of proportionality in preservation and discovery.

Continue Reading

Predictive coding after keyword screening!? Don’t miss the point of Bridgestone Americas

Posted in Predictive Coding

Magistrate Judge Joe B. Brown’s recent order permitting predictive coding in Bridgestone Americas v. International Business Machines Corporation has received a lot of attention because it allowed the use of predictive coding on a population of documents that had already been screened using keywords pursuant to a case management order that did not provide for the use of predictive coding.

The question whether predictive coding should be deployed on a document population that has already been winnowed using keywords is a hot topic. Opponents say keywords can be a blunt instrument and are often developed and applied by those who don’t have a grasp of the range of claims and defenses at issue or the language used by the litigants and their key players. For example, is this a company that refers to the “business plan” as a “playbook”?

But where parties have already agreed to keywords and the use of a keyword screen, and the resulting document population is still sizable (in this case about two million documents), others say machine learning is a reasonable tool to separate the likely relevant from the likely irrelevant documents. In other words, advocates of this approach argue that the harm done – if any – through the use of a keyword screen will not be remedied by manual review of the resulting document population and a good predictive coding work flow should get at what matters more quickly. Continue Reading

Gil Keteltas Discusses E-Discovery in Q&A for Recommind Blog Article

Posted in E-Discovery Rules, E-Discovery Vendor, Predictive Coding

Partner Gil Keteltas, co-editor of BakerHostetler’s Discovery Advocate blog, participated in a question-and-answer session with Senior Discovery Counsel for Recommind, Inc., Philip Favro. Keteltas’ responses appeared in a July 22, 2014, blog post on Recommind.com and addressed topics including FCRP Rule 26, proposed amendments to FCRP, predictive coding, and e-discovery challenges facing companies in 2014.

Read the article.