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!

6 Months of Case Law Under the New FRCP

FRCP case law digest

Six months have passed since the December 1, 2015 amendments to the Federal Rules of Civil Procedure (FRCP) took effect. What has been the impact of the new rules on civil litigation and discovery?

In particular, Rule 26(b)(1) and Rule 37(e) have attracted a sizeable amount of jurisprudence, as both courts and parties grapple with the applications of these new rules. To aid today’s practitioner, Kroll Ontrack analyzed the most significant judicial opinions of the last six months relating to Rule 26(b)(1) and Rule 37(e).

How have the amendments impacted discovery? Download the FRCP case law digest.

Proportionality Reigns Supreme

In the first six months since the 2015 amendment to Rule 26(b)(1), courts have struggled with the removal of the “reasonably calculated” language, and the additional emphasis on proportionality. Pioneering lawsuits have fleshed out the most pressing questions such as what factors matter the most when arguing proportionality? In what way should a party object to discovery under the new rules? Looking at the totality of the case law, one new theme has emerged—there is no substitute for specificity. Both parties are required to state with specificity why they are requesting or objecting to discovery.

Safe Harbors for “Reasonable Steps”

In the past, organizations have been pressured to preserve massive amounts of ESI at tremendous expense. The 2015 amendments have attempted to require only “reasonable steps” be taken to preserve the information. But is it actually advancing adequate data preservation causes? What constitutes “reasonable steps” under the new FRCP amendments? If evidence was preserved and then lost, what level of intent is needed before a court will impose sanctions?

Each of these questions are addressed in Kroll Ontrack’s case summary digest, with the most relevant case law opinions highlighting the expectations from the courts in the first six months since the 2015 FRCP amendments. Download a copy of the FRCP case law digest by Kroll Ontrack, which not only summarizes key findings but also contains a circuit-by-circuit list of judicial opinions referencing FRCP amendments to Rule 26(b)(1) and Rule 37(e).

Still catching up on the 2015 amendments? Download a copy of Kroll Ontrack’s 2015 FRCP Amendments guidebook, which contains each of the December 1, 2015 amendments and full text of the Advisory Committee notes.

June 2016 Ediscovery Case Summaries

ediscovery case summaries

Sanctions Implemented After Party Fails to Preserve Emails
Mathew Enter. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 U.S. Dist. LEXIS 67561 (N.D. Cal. May 23, 2016)

Court Rides on Relevancy, Allowing Party to be Railed by Requests
Amtrak v. Guy M. Turner, Inc., NO. 4:15-CV-68-BO, 2016 U.S. Dist. LEXIS 61073 (E.D.N.C. May 9, 2016)

Discovery Request Found Not Proportional; Department Store Relieved from Production
Douglas v. Kohl’s Dep’t Stores, Inc., 2016 U.S. Dist. LEXIS 54782 (M.D. Fla. Apr. 25, 2016)

Party’s Failure to Produce Some Facebook Data Results in Compelled Discovery of All Social Media Data
Rhone v. Schneider Nat’l Carriers, Inc., 2016 U.S. Dist. LEXIS 53346 (E.D. Mo. Apr. 21, 2016)

Party’s Failure to Specify Objection in Refusing Discovery Request Results in Compelled Discovery
Heller’s Gas, Inc. v. Int’l Ins. Co. of Hannover Ltd., 2016 U.S. Dist. LEXIS 71069 (M.D. Pa. June 1, 2016)

Antitrust Video Series: Part 1

Antitrust videos

Navigating the Seas of Global Antitrust and the Expanding Internet Frontier

Every year, the leading practitioners in antitrust law congregate in Washington, DC for more than just the cherry blossoms: they gather for the Annual Spring Meeting of the ABA Section of Antitrust Law. This year, the Spring Meeting focused on global antitrust law, highlighting that now, more than ever before, the legal antitrust professional needs to contend with the global market.

Not everyone is lucky enough to attend the Spring Meeting, so at this year’s meeting Kroll Ontrack was honored to partner with The Capitol Forum to bring you a glimpse of the exciting new topics that were discussed. Nationally renowned experts on antitrust law shared their insights and opinions with us over a dozen short, exclusive antitrust videos, which are available here for you. Part One of our video series focuses on antitrust issues involving either international jurisdictions or Internet companies, with each video each highlighting a unique facet of the current antitrust environment. Each video is organized with a short description to make is easier for you to decide which of these compelling videos to view first.

Internet Markets are Different

Scott Sher

Scott Sher

The unique follower devotion, the speed of buildup and the customer base consisting of both users and advertisers are just a few ways that Internet markets are different and are proving to be a challenge for regulatory schemes both in the United States and abroad.

Watch: Internet Monopolies featuring Scott Sher, a partner at Wilson Sonsini Goodrich & Rosati, as he discusses the unique antitrust issues facing Internet platform monopolies.

 

Diversity in Regulatory Regimes Brings Improvement Along with Headaches

William Kovacic

William Kovacic

The United States is no longer the only major jurisdiction with antitrust filing, and this has resulted in increased time and expense. Is there a unified system of regulatory filings on the horizon, and if so, should there be?

Watch: Global Antitrust Regimes featuring Professor William Kovacic of George Washington University, as he discusses the global establishment of antitrust regimes around the world, the complications and possible solutions to remedy these problems.

 

Antitrust Law Continues to Build on What Came Before

Antitrust videos

Jonathan Kanter

Antitrust law originated to prevent railroad companies from exploiting the market. Today, antitrust law is struggling to grapple with the challenges presented by Internet companies.

Watch: Mechanisms of Antitrust Law featuring Jonathan Kanter, a partner at Cadwalader, Wickersham & Taft, as he discusses the history and mechanisms of antitrust law and its emergence as a public issue.

 

 

Be sure to keep watch for next month’s arrival of Part Two of our video series, which will feature the remaining videos and focus exclusively on antitrust issues currently at play in the United States.

Ediscovery in China: Traditions, Rules and Customs You Need to Know

Ediscovery in China

On June 22, Kroll Ontrack managing director and APAC ediscovery expert Kate Chan will discuss the Chinese ediscovery landscape, so you will be prepared when you need to know the traditions, rules and customs when faced with a regulatory investigation or cross-border litigation.

Register today to learn about Ediscovery in China!

Ediscovery in China: Traditions, Rules and Customs You Don’t Know

The Chinese legal landscape is often seen as daunting and secretive; a laborious task for an American legal professional to master. Specifically, Chinese data protection and privacy laws in particular provide a challenge to any international ediscovery project. Because of the substantial economic growth resulting in higher volumes of data in China, as well as the expanding complexities of ediscovery law, a practitioner that is not familiar with Chinese law can find themselves at a significant disadvantage, especially when faced with a regulatory investigation or cross-border litigation.

To help you meet these unique challenges head on, we’ve enlisted seasoned APAC ediscovery expert Kate Chan to offer the information and strategies you need to manage Chinese ediscovery.

Specifically, this webinar will cover:

  • The implication of China’s regulatory framework on ediscovery
  • Recent developments in Chinese ediscovery practices
  • Tips for managing the unique issues related to managing ESI in China
  • Ways Chinese ediscovery differs from ediscovery practices in other APAC countries

Click here to get more information about this webinar and to register.

Kate Chan is a New York attorney who started practicing on Wall Street. She is a native of Hong Kong and is fluent in both Mandarin and Cantonese. She is the Regional Managing Director of Kroll Ontrack’s Legal Technologies unit in Asia Pacific.

May 2016 Ediscovery Case Summaries

ediscovery case summaries

Ignorance Not Bliss When Destroying Digital Evidence
NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 (2nd Cir. Apr. 25, 2016)

Electronic Data Too Difficult to Assemble?  Too Bad.
Labrier v. State Farm Fire & Cas. Co., 2016 U.S. Dist. LEXIS 61246 (W.D. Mo. May 9, 2016)

You Can’t Delete and You Can’t “Hide”
Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016)

Court Holds High Bar for Imposing Sanctions under Rule 37(e)
Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016)

Litigants Need to Prove Existence of Missing Data for FRCP 37(e) Sanctions
FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016)

 
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