Gilbert S. Keteltas

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Key COVID-19 Considerations for U.S. Discovery and Information Governance

By Gilbert S. Keteltas and James A. Sherer on May 21, 2020 Posted in Information Governance

Many businesses have remote work and bring-your-own-device policies that cover access to company systems and information from personal devices. These policies may also state expectations or requirements for the management and security of company information. But these policies likely do not account for the rapid transition to virtual offices and remote work hastened by the … Continue Reading

COVID-19 and U.S. Statutes of Limitation

By Gilbert S. Keteltas and Justin Donoho on May 21, 2020 Posted in Statutes of Limitation

At the federal and state levels, there have been calls to suspend statutes of limitations during the COVID-19 outbreak. A number of states have already acted, but state approaches vary and are open to future changes as the challenges of the pandemic play out at the national, state and local levels. This uncertainty affects businesses … Continue Reading

Want to Get Primed for TAR? The Sedona Conference Has You Covered

By Gilbert S. Keteltas on February 1, 2017 Posted in TAR, The Sedona Conference

The Sedona Conference recently announced the release of its Technology Assisted Review (TAR) Case Law Primer. While this final version of the primer will be published in the Summer 2017 Sedona Conference Journal, the final/prepublication edition can be downloaded at no charge here. Why is this primer needed? As noted by The Sedona Conference’s deputy … Continue Reading

‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception

By Carey Busen and Gilbert S. Keteltas on January 17, 2017 Posted in E-Discovery Rules

Unbeknownst to many, changes to the Federal Rules of Evidence governing the hearsay exception for ancient documents (FRE 803(16)), and additional rules governing self-authentication of evidence generated by electronic processes or systems (FRE 902(13)) and self-authentication of data copied from electronic sources (902(14)), are slated to become effective in 2017. These proposals are intended to … Continue Reading

TAR Preferred, Keywords Acceptable – Focus on Defensible Process!

By Gilbert S. Keteltas on August 10, 2016 Posted in TAR

It’s hard not to feel a bit embarrassed for all the bloggers who await, and write about, nearly everything Magistrate Judge Andrew Peck (S.D.N.Y.) writes about the search for and production of electronically stored information (ESI). We’re far more guarded over here at Discovery Advocate, only commenting a few times (here, here, here, here, here … Continue Reading

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

By Gilbert S. Keteltas on July 13, 2015 Posted in E-Discovery Rules, Preservation, Your First Five Questions

This 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 … Continue Reading

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

By Gilbert S. Keteltas on March 9, 2015 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 … Continue Reading

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

By Gilbert S. Keteltas on August 21, 2014 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 … Continue Reading

Are You Facing the Prospect of a Merger Investigation?

By Jonathan Lewis, Gilbert S. Keteltas, Karin Scholz Jenson and James A. Sherer on May 12, 2014 Posted in TAR

Editor’s Note: This blog post is joint submission with BakerHostetler’s Antitrust Advocate blog. If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What is TAR? TAR, a relatively new entrant into the … Continue Reading

Dear Mr. Snowden: Is it reasonable to expect my attorney-client communications are confidential?

By Gilbert S. Keteltas on March 20, 2014 Posted in E-Discovery Rules, Privacy

Last month, Edward Snowden provided the press a document describing “how Australian intelligence conducted surveillance of trade talks between Indonesia and the United States and, in the process, monitored communications between Indonesian officials and an American law firm retained by Indonesia for help with the trade dispute.” Web-based email service providers may use automated processes … Continue Reading

Human or Technology Assisted: Imperfect Review Can Still be Defensible (SDNY)

By Gilbert S. Keteltas on February 20, 2014 Posted in E-Discovery Rules

It’s a common refrain that, while courts have allowed the use of technology assisted review, no court has yet blessed the outcome of an imperfect technology assisted review process over the objection of another party. But dicta in Judge Denise Cote’s recent decision in FHFA v. HSBC North America Holdings Inc. (SDNY) (“HSBC“) gets darn close. HSBC is one of a number of … Continue Reading

E-Discovery in 2013 – Waiting for Godot, Closing Kimonos, and Your World Doesn’t Just Seem Bigger

By James A. Sherer, Gilbert S. Keteltas and Karin Scholz Jenson on December 31, 2013 Posted in E-Discovery Advocacy and Management, E-Discovery Rules, Privacy

In some respects, 2013 seemed like a conversation between Vladimir and Estragon. Some commentators likened it to a simple, unified message that finally had E-Discovery practitioners, litigators in general, and affected clients speaking the same language; others feared that a continuation of the status quo meant simply that another year had passed without addressing the … Continue Reading

Bring Your Geek to the Supreme Court Day Cancelled for Lack of Interest

By Gilbert S. Keteltas on October 11, 2013 Posted in Predictive Coding, TAR

Magistrate Judge Andrew J. Peck has observed that judicial understanding and resolution of ediscovery disputes can benefit from “bring your geek to court day” — where those knowledgeable about ESI issues in a case participate in court conferences. As we predicted, the Supreme Court isn’t yet ready for Bring Your Geek to the Supreme Court Day. … Continue Reading

Letterman: Take the “e” out of eDiscovery!

By Gilbert S. Keteltas and Karin Scholz Jenson on January 29, 2013 Posted in E-Discovery Advocacy and Management, LegalTech

Those of a certain age may recall the television show The Electric Company’s leading superhero, Letterman. He could resolve nearly any crisis by deleting, adding, or changing a letter, all while grooving to funky 70s’ music. Maybe that’s how we ended up with “eDiscovery.” Troubled by the legal profession’s lack of attention to electronically stored … Continue Reading

A plea to LegalTech vendors and panelists talking technology-assisted review!

By Gilbert S. Keteltas on January 24, 2013 Posted in E-Discovery Advocacy and Management, TAR

LegalTech New York is right around the corner. And, much like the recent Georgetown Advanced Ediscovery Institute, there will be no shortage of discussion about predictive coding/technology-assisted review (“TAR”). The agenda includes fourteen program descriptions that directly reference TAR and another eight that clearly suggest TAR will be a major topic. As a user, student … Continue Reading

Marital Communications are “Essential to the Preservation of Marriage” – Unless Made from a Workplace Computer

By Gilbert S. Keteltas on December 14, 2012 Posted in Privacy, Privilege

Editor’s Note: This post is a joint submission to BakerHostetler’s Data Privacy Monitor blog. Communications between spouses are typically accorded a “marital communications privilege” because they are “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” But marital communications … Continue Reading

Judge Carter Refuses to Disqualify one of SDNY’s “Experts in E-Discovery” – Even More on Da Silva Moore

By Gilbert S. Keteltas on November 8, 2012 Posted in Predictive Coding

In prior posts, we’ve commented on the emerging judicial focus on the use of technology-assisted review/predictive coding as well as the twists and turns of Da Silva Moore, in which Magistrate Judge Peck permitted the use of predictive coding in a groundbreaking decision, only to have plaintiffs seek his recusal on the purported ground that … Continue Reading

Advocating Cooperation and Proportionality? Study the case law!

By Gilbert S. Keteltas on October 23, 2012 Posted in Proportionality

Co-authored by: Alberto Rodriguez In a prior post we noted that those seeking to achieve proportionality in the face of objection by an opponent, or a court’s lack of experience, should begin with the rules. The good news is that there is no shortage of case law doing just that. In other words, a party … Continue Reading

Advocating Proportionality? Start with the Rules!

By Gilbert S. Keteltas on October 18, 2012 Posted in Proportionality

You are preparing to advocate a proportional approach to discovery in your case, including informed limits on the information that will be preserved, collected, reviewed and produced. But your opponent and the court are new to e-discovery in major litigation, and your opponent has resisted a meaningful early discussion of the myriad issues that deserve … Continue Reading

Learning and Teaching About Predictive Coding Are Not Bases for Recusal – More on Da Silva Moore

By Gilbert S. Keteltas on June 20, 2012 Posted in Predictive Coding, TAR

Co-Authored by: Judy Selby and Jessica Nutt In prior posts, we’ve commented on the emerging judicial focus on the use of technology-assisted review/predictive coding, as well as the twists and turns of Da Silva Moore, in which Magistrate Judge Peck permitted the use of predictive coding in a groundbreaking decision, only to face demands for … Continue Reading

DOJ Arrests Former BP Engineer on Charges of Deleting Text Messages in Violation of Multiple Legal Hold Instructions

By Gilbert S. Keteltas on April 24, 2012 Posted in Criminal, Spoliation

Today, the U.S. Department of Justice announced the arrest of a former BP engineer, Kurt Mix, on “charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater Horizon disaster.” Mix worked on BP’s efforts to stop the flow of oil at Deepwater Horizon and, according to DOJ, in that … Continue Reading

Preservation and Cost Shifting: Recent New York Appeals Court Opinions Clarify State Discovery Rules

By Gilbert S. Keteltas on April 23, 2012 Posted in E-Discovery Rules

The New York state Appeals Court has been active in the e-discovery space over the past few months. In Voom HD Holdings LLC v. EchoStar Satellite LLC the court discusses when the duty to preserve information in advance of actual litigation arises. And in U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc., the court considers … Continue Reading

Sedona Conference Issues Draft Guidance on Ethics and Metadata

By Gilbert S. Keteltas on March 20, 2012 Posted in Ethics, Metadata, The Sedona Conference

The Sedona Conference’s recently published draft Commentary on Ethics & Metadata is a practical guide to the different and sometimes conflicting duties a lawyer faces in two very different contexts: every day communications with third parties and discovery. In short – context is everything when it comes to metadata. The Commentary begins with a brief … Continue Reading