Brexit: Through the Eyes of a US Legal Team

Brexit

The headlines are nearly ubiquitous at this point: this summer, the people of the United Kingdom voted to leave the European Union. The reasons cited for leaving are varied and complicated, with many commentators still debating what caused a niche political movement be adopted by 52% of the electorate. However, most agree that the following broad factors led to the vote to leave (aka “Brexit”):

  • A belief that the EU wields too much power over UK legislation and a subsequent desire to restore sovereignty
  • Dissatisfaction over the costs of EU membership and a feeling that the UK paid too much and received too little in return in comparison to other countries
  • Concern over EU immigration policy and a desire to have full control over UK borders
  • Anger over the UK government’s austerity regime, particularly in areas that have suffered a decline in manufacturing and industrial jobs

Technically speaking, the controversial referendum was not an official notice to the EU that the UK will leave the EU. As soon as the formal notice is given to the EU, a ticking clock begins which is set for a two year exit phase to organize the finer points of Brexit. UK Prime Minister Theresa May said she understands the need for certainty but has indicated that she does not intend to give the formal notice this year. At the earliest, Brexit could become official in 2019.

But what does this referendum mean for US businesses with global operations? Specifically, what is the full impact of Brexit on data transfers in corporate litigation and investigations? How should US in-house counsel and their law firms be preparing for future data protection and privacy changes as a result of Brexit? What will be the impact on global ediscovery practices?

Data Protection: New Horizons or Business As Usual?

The UK currently operates under the Data Protection Act 1998 (DPA), which was enacted to bring British law in line with the EU Data Protection Directive (DPD). Since Britain voted to leave the EU, it is likely that the DPA will remain unchanged at least during the Brexit transition period.

The future state of the law is partly dependent on whether or not Britain becomes part of the European Economic Area (EEA) or the European Free Trade Association. If the UK becomes part of the EEA and the EU finds the UK’s data protection safeguards to be appropriate, this would make transferring data outside of the UK easier. However, it is likely that businesses will still have to comply with the new requirements to be implemented under the forthcoming General Data Protection Regulation, when transferring data across borders to comply with legal obligations in other countries.  If Britain does not become part of the EEA, the situation is more complicated, and it is likely that an arrangement similar to the EU-US Privacy Shield would need to be agreed to. This would likely provide a safe passage for the transfer of data between the UK and other countries in Europe.

Ediscovery: Knowledge and Technology are Power

The crux of the situation is that the international data protection landscape is changing regardless of the outcome of the Brexit referendum and US businesses with global operations need to be prepared for the differences. Until the UK finalizes its data protection regime and comes to an agreement with the EU, companies need to think carefully about the risks of transferring data across UK borders. But, business does not have to come to a standstill; law firms and companies can rely on Kroll Ontrack’s mobile ediscovery solution and network of European data centers to continue processing and transferring data in Europe in a compliant and cost-effective manner.

Kroll Ontrack is here to help you and your business thrive and adapt in a changing ediscovery world. Subscribe to our email newsletters, follow us on Twitter and connect with us on LinkedIn, and read up on ediscovery all around the world.

August 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Grants $3,000,000 in Punitive Damages for ESI Spoliation
GN Netcom, Inc. v. Plantronics, Inc., 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)

Court Clarifies the Obligation to Utilize Rule 26(b)(1) Proportionality Factors
Rowan v. Sunflower, 2016 U.S. Dist. LEXIS 72254 (D. Kan. June 2, 2016)

Court Denies U.S. Government’s Warrant to Obtain Overseas Data
Microsoft Corp. v. United States (In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 2016 U.S. App. LEXIS 12926 (2d Cir. N.Y. July 14, 2016)

Attorney Sanctioned for Failing to Address Proportionality in Brief
Fulton v. Livingston Fin. LLC, 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)

“Caveat Emptor” Applies to ESI Requests
P.R. Med. Emergency Grp., Inc. v. Iglesia Episcopal Puertorriqueña, Inc., 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

FRCP case law digest

A Tale of Two Rules

The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.

To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.

Missed the webinar? Listen here.

Rule 26(b)(1): The Age of Proportionality

In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.

As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.

In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.

Rule 37(e): Preservation Under the Shadow of Inherent Power

In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.

Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.

In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.

With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape. Download the full webinar here!

Global Predictive Coding: Gold, Silver & Bronze

medals

This week, athletes from around the globe will gather in Rio to compete for gold medals and present years of hard work and dedication. With the Games as a backdrop, there is no better time than to explore our own global phenomenon in ediscovery – predictive coding technology.

Recently, Kroll Ontrack’s Michele Lange and Tracy Stretton co-authored an article for Bloomberg BNA’s Digital Discovery & e-Evidence in which they discussed the way predictive coding is taking the globe by storm.

A Global Predictive Coding Case Law Primer

Taking the gold medal for the first predictive coding judicial opinion, several years ago American courts approved the use of predictive coding technology in discovery, making it widely recognized and respected. In March 2015, Ireland earned the silver medal with its approval of the use of predictive coding in the discovery process in Irish Bank Resolution Corporation Ltd. & Ors v. Quinn & Ors. In February 2016, Master Matthews helped Britain win the bronze when he issued the first British opinion, known as Pyrrho Investments Ltd. v. MWB Property Ltd., which approved the use of predictive coding in High Court proceedings, partly relying on Magistrate Judge Peck’s opinion in Da Silva Moore v. Publicis Groupe. Even more recently in May 2016, Britain had its first contested case regarding predictive coding, David Brown v. BCA Trading. These opinions are just the start of what we will see on the issue of predictive coding in years to come. Case law will continue to develop as many of the same concerns are being raised globally.

What’s Next on the Horizon?

As discussed by Lange and Stretton in their article, in the US and UK, judges will continue to interpret the nuances of parties’ predictive coding practices and it will not be long until other European and Asian countries formally join the predictive coding games. In the meantime, technology is evolving so legal professionals must stay vigilant to meet the expectations of demanding international clients when producing electronic documents in global litigations or investigations.

Relativity Certifications—Helping You Learn the Lingo

53RCAs-9Experts-1Master

For Relativity gurus, making sense of kCura’s certification system is likely no sweat. However, for ediscovery outsiders or legal/IT professionals new to Relativity, all of the classes, tests and designations are a bit overwhelming. While kCura’s certification system is not overly complicated, it takes some time to learn the lingo. To speed up your learning curve, take five minutes to familiarize yourself with the Relativity certification structure.

PREPARING FOR A RELATIVITY EXAM? WATCH THIS VIDEO from Kroll Ontrack.

Why Get a Relativity Certification?

If you work for a corporation, law firm or service provider utilizing Relativity for ediscovery, there is no better way to learn new Relativity features and provide more value to your organization than to get certified. The Relativity certification programs are for individuals looking to validate their knowledge and expertise in the software.

What Relativity Certifications Are Available?

kCura offers eight certifications for Relativity:

  • Relativity Certified Administrator (RCA) – The keystone certification, targeted at case administrators working day-to-day in Relativity.
  • Relativity Analytics Specialist – For individuals working extensively with Relativity Analytics.
  • Relativity Infrastructure Specialist – For individuals responsible for setting up, running and troubleshooting a Relativity environment.
  • Relativity Certified User – For individuals conducting document review within Relativity.
  • Relativity Assisted Review Specialist – For individuals with expertise in predictive coding within Relativity.
  • Relativity Processing Specialist – For individuals operating the processing engine in Relativity.
  • Relativity Project Management Specialist – For individuals troubleshooting case workflows using Relativity.
  • Relativity Certified Sales Professional (RCSP) – For individuals demonstrating Relativity in a sales setting.
  • Expert – For RCAs who hold two or three specialist certifications concurrently.
  • Master – For RCAs who hold four or more specialist certifications concurrently.

How Does the Certification Process Work?

Don’t expect these certifications to come easy. It is generally known that kCura’s exams are not a stroll through the park. Expect to invest plenty of time studying to prepare yourself. Further, in order to sit for one of the exams, candidates have to possess specific experience as a prerequisite. After you pass, you have to keep your certification up to date by earning Relativity Continuing Education (RCE) credits.

Hear What Some RCAs Have to Say

At Kroll Ontrack, many of our team members are ramping up their Relativity expertise. In fact, currently 53 colleagues hold the RCA designation, with several also certified in one or more specialist areas. Of those certified, nine in Kroll Ontrack’s crew have reached the Relativity Expert designation and one hard-working individual at Kroll Ontrack is certified as a Relativity Master.

If you are thinking about earning a Relativity certification, watch this short video to hear how some of Kroll Ontrack’s folks prepared themselves and achieved these important Relativity designations. Then, if you are intrigued to pursue such a certification, set aside time to read the wealth of information available on kCura’s website. As anyone working in ediscovery knows, given the amount of change in the law and technology, continued professional development goes a long way to a prosperous career in ediscovery.

Soaking up the Ediscovery Sun: Ing3nious NorCal 2016

Ediscovery Ethics

This past week, I had the opportunity to attend the Ing3nious NorCal Retreat on Ediscovery and Information Governance in the beautiful Pacific coast town of Half Moon Bay, California. This event signified the fifth anniversary since Ing3nious launched its initial retreat. As typical for Ing3nious conferences, the retreat featured many knowledgeable speakers and informative presentations.

Ediscovery Ethics: Calm, Cool and Competent

At the retreat, I had the chance to present the session on ediscovery ethics, along with attorney Brendan Kenny of Blackwell Burke. The focus of our presentation was on The State Bar of California Formal Opinion No. 2015-193 on Ediscovery Ethics and its applicability to the Model Rules of Professional Conduct. We discussed the importance of the nine skills highlighted in the California opinion:

  • Initially assess ediscovery needs and issues
  • Implement/cause to implement appropriate ESI preservation procedures
  • Analyze and understand a client’s ESI systems and storage
  • Advise the client on available options for collection and preservation of ESI
  • Identify custodians of potentially relevant ESI
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an ediscovery plan
  • Perform data searches
  • Collect responsive ESI in a manner that preserves the integrity of that ESI
  • Produce responsive non-privileged ESI in a recognized and appropriate manner

Brendan live-streamed the presentation via Periscope and it is available for you to watch as a recording here. The slides from the presentation are also available for you on SlideShare.

Destination 2020, Social Media and Ediscovery Trends

One session that I found particularly interesting was “Destination 2020: The Changes, Opportunities and Challenges of the Next Four Years” presented by Chris Surdak. Chris has been at the forefront of the application of information technology and gave us a glimpse of his new book: Jerk, Twelve Steps to Rule the World. In his presentation, Chris discussed the formula for causing jerk in any industry and what existing companies must do to respond to these jerks while there is still time.

Other sessions I enjoyed include, “Through the Looking Glass: On the Other Side of the FRCP Amendments,” “It’s a Social World After All,” and “Top Trends in Discovery for 2016.” Specifically, I had the pleasure of listening to my Kroll Ontrack colleague, computer forensics expert Steve Komos, discuss social media in the “It’s a Social World After All” panel discussion.

To learn more about Ing3nious or the retreat, visit the website here. Additionally, keep an eye out for the Ing3nious East Coast 2016 retreat that is set for late September at which Kroll Ontrack will be a participant.

July 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Says Prolonged Discovery Periods Are Not “Marvelous”
Wai Feng Trading Co. v. Quick Fitting, Inc., 2016 U.S. Dist. LEXIS 77672 (D.R.I. June 14, 2016)

Cost Alone Is Not Sufficient to Evade Native File Production
Mitchell v. Reliable Sec., LLC, 2016 U.S. Dist. LEXIS 76128 (N.D. Ga. May 23, 2016)

Court Holds Rule 26(b)(1) Cannot be Used for Unpled Claims or Defenses
Lifeguard Licensing Corp. v. Kozak, 2016 U.S. Dist. LEXIS 68724 (S.D.N.Y. May 23, 2016)

Ignorance Is No Grounds to Avoid Production
FDIC v. Ark-La-Tex Fin. Servs., LLC, 2016 U.S. Dist. LEXIS 82444 (N.D. Ohio June 24, 2016)

Court Holds Personal Data Discoverable for a Work-Related Claim
Sunderland v. Suffolk Cty., 2016 U.S. Dist. LEXIS 77212 (E.D.N.Y. June 14, 2016)

Antitrust Video Series: Part 2

Antitrust videos

Stars & Stripes, Fireworks and United States Antitrust Law

The Fourth of July provides an opportunity for Americans to focus on matters close to home and it is no different with antitrust law. Even though there are enticing global antitrust issues – which we discussed in Part One of this video series, antitrust law in the United States remains intriguing as new questions and inclinations emerge.

In Part Two of our antitrust video series, Kroll Ontrack shares the remaining videos created at the 2016 Annual Spring Meeting of the ABA Section of Antitrust Law, made in collaboration with The Capitol Forum. These videos, each focusing on an analysis of antitrust issues facing the United States, are conveniently organized by relevant themes: from basketball cartels to a shortage of FTC commissioners, U.S. antitrust law remains an ever evolving challenge.

Merger Remedies are Scrutinized More than Ever

One of the most contentious issues currently facing antitrust law is merger remedies. In order to ensure that merger remedies are capable of meeting their intended purpose, agencies are scrutinizing divestiture packages like never before, presenting additional issues for practitioners.

Elaine Ewing

Elaine Ewing

 

Watch: Merger Remedies featuring Elaine Ewing, a partner at Cleary Gottlieb Steen & Hamilton, as she discusses merger remedies and recent trends of regulatory agencies.

 

 

 

Mike Cowie

Mike Cowie

 

Watch: Merger Reviews featuring Mike Cowie, a partner at Dechert LLP, as he discusses the increasing time of merger reviews and the growing divestiture challenges.

 

 

 

Antitrust Law Continues to Rapidly Evolve

Antitrust law is developing at a brisk pace, and understanding its developing facets is crucial to a merger’s success. From understanding old theories to mastering new ones, practitioners need to be aware of the legal issues dominating the field.

Joe Farrell

Joe Farrell

 

Watch: Vertical Restraints featuring Joe Farrell, a Professor at University of California Berkeley, as he discusses vertical restraint and its utilization to protect monopolies.

 

 

 

Melissa Maxman

Melissa Maxman

 

Watch: Theory of Harm featuring Melissa Maxman a partner at Cohen & Gresser LLP, as she discusses antitrust theory of harm in the O’Bannon v. NCAA case.

 

 

 

Barry Nigro

Barry Nigro

 

Watch: Cross Ownership in Concentrated Markets featuring Barry Nigro, a partner at Fried Frank, as he discusses the concerns raised by cross-ownership in concentrated markets.

 

 

 

Lisl Dunlop

Lisl Dunlop

 

Watch: Inconsistent State Approaches featuring Lisl Dunlop, a partner at Manatt, Phelps & Phillips, as she discusses the varying conclusions reached by the states on healthcare antitrust issues and current trends.

Inaccurate Assumptions Plague Antitrust Cases

Jonathan Baker

Jonathan Baker

Inaccurate assumptions abound in antitrust law, either on the part of the practitioner or the agencies. In both cases, making inaccurate assumptions has costs.

Watch: Erroneous Assumptions featuring Professor Jonathan Baker of the American University Washington College of Law, as he discusses the impact of making erroneous assumptions when using “error cost” analysis in monopolization cases.

Short-staffing at the FTC

Carla Hine

Carla Hine

In an unusual situation that is unlikely to be remedied in the foreseeable future, the Federal Trade Commission has only three commissioners. This has created concerns among practitioners about its impact on antitrust cases.

Watch: FTC Formation featuring Carla Hine, a partner at McDermott Will & Emery, as she discusses the unusual situation of the FTC having only three commissioners and the impact that this has on merger review.

Predictive Coding Technology: A Summer Blockbuster You Won’t Want to Miss

Predictive Coding Patent

What’s better than a summer blockbuster? Few things beat the heat better than an air-conditioned theater and a bucket of buttery popcorn while watching an engaging film.

Predictive Coding Patent Blockbuster:  Technology You Don’t Want to Miss

Kroll Ontrack has come out with its own “blockbuster” this summer: a predictive coding patent. Obtaining patents, like making blockbuster movies, takes years and ours was more than four years in the making. To accompany our patent, we have another mega-hit that deserves a second screening: Kroll Ontrack’s predictive coding guide. Our newly-patented technology, paired with our ever-relevant predictive coding guide, is a superhero team that the up-to-date ediscovery practitioner cannot do without.

2016 Summer Blockbusters: Movies You Don’t Want to Miss

Of course, there are other highly anticipated blockbusters arriving this summer. To start, the smart mouth turtles-turned-mutants of our youth are back in Teenage Mutant Ninja Turtles: Out of the Shadows. In Independence Day: Resurgence the people of earth once again are in critical struggle against an alien invader (hopefully with a better spaceship design). The daffy ghost hunters have returned in revival of the ’80’s classic movie Ghostbusters, this time with an all-female cast and the same catchy theme song. Star Trek Beyond continues the story of the USS Enterprise crew in the newest installment in one of popular culture’s longest-running franchises. Finally, the list would not be complete without the newest villain-themed movie from the Batman franchise: Suicide Squad.

Live Long and TAR!

ICYMI: Ediscovery in China [Webinar]

Ediscovery in China

Kroll Ontrack recently presented the Ediscovery in China: Traditions, Rules and Customs You Need to Know webinar. In the webinar, which is now available on-demand, Kate Chan, Kroll Ontrack’s Regional Managing Director in APAC, discussed the following barriers and best practices for ediscovery projects with data in China.

Watch the webinar to learn more about ediscovery in China.

The Implications of China’s Regulatory Framework

Unlike the United States, China does not have formal discovery practices in civil litigation, which presents initial contentions between these legal systems on opposite sides of the world. The Chinese government has several regulations that impose possible restrictions on gathering data in China for an investigation or litigation. The most impactful regulation is the State Secrets law. State secrets are broadly and vaguely defined by the Chinese government as “matters that have a vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.” Individuals are prohibited from sharing and transferring such secrets, complicating data collection, review and production practices, should any of such information be classified as a State Secret in an investigation or litigation.

Language and Cultural Challenges

Other ediscovery barriers in China revolve around language and culture: English is not the primary language in China, the Chinese are very formal in their communication style and there are many regional dialects in China, making searches and early data assessment difficult for English-speaking litigation professionals.

Work culture in China is very family-oriented, with the entire family prioritized above the needs of individual members, also known as familism. Because of this, many managers tend to hire their relatives and many businesses tend to be family-owned.

Further, litigation teams working in China need to understand the Chinese cultural phenomenon known as guanxi, which refers to personalized networks of influence and reciprocity between individuals and businesses. All of this makes examining data related to ediscovery challenging and unique.

Developing Economy

In addition to the regulations, language and cultural challenges, the Chinese economy is still developing. China’s legal system and corporate governance practices are less developed when compared to other countries, resulting in much reluctance toward, and unfamiliarity with, data collection and analysis activities associated with litigation. Manufacturing and production plants tend to be located in remote locations rather than in big cities, which means that litigation teams often have only one chance to obtain the needed data. Lastly, China still uses a great deal of paper documents with employees often mixing data between their personal and business computers.

Best Practices

With all the challenges that litigation teams may face when an ediscovery project crosses borders to China, these are some of helpful tips to keep in mind:

  • Get an expert well-versed with different Chinese-language dialects
  • Consider diverse data sources
  • Use local resources for collection
  • Consider a mobile ediscovery solution

Want to learn more? Download the webinar today!

 
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