Spears Legal Technology


This blog is a resource guide for informational purposes only, and not the delivery of legal, technical or other professional advice. Using the information provided on this blog does not constitute an attorney-client relationship. If you need legal advice, please consult your lawyer.

FRCP E-Discovery Amendments Expected To Go Into Effect 12/1/2015

Kroll Ontrack’s E-Discovery blog rounds up some of the Federal Rules of Civil Procedure changes related to e-discovery. While the rules package contains several important amendments, the most controversial proposal relates to the “failure to preserve” section in Rule 37(e). This language was the most hotly contested area throughout the public comment period.

The revised rule is designed to ensure a more uniform response from Federal Courts regarding the loss of Electronically Stored Information (ESI). The rule, broken into two sections, gives courts power to undertake “measures” – AKA sanctions and other similar procedures – when a party loses ESI because they failed to take “reasonable steps” to preserve it during the anticipation of impending litigation.

The first section, Section 37(e)(1), allows a court to take measures when a party is prejudiced by the opposing party’s loss of ESI. The court is permitted to take reasonable action that sufficiently cures the party’s prejudice even though the loss of the ESI may not have been the opposing party’s fault.

Similarly, the second section, Section 37(e)(2), authorizes a court to take measures when a party intentionally loses ESI.  However, it does not require a showing of prejudice to the adverse party. The court can assume that the ESI was unfavorable, instruct the jury that the ESI was unfavorable, or grant default judgment or dismiss the case.



Have a Reasonable Document Retention Policy? Then Follow it!

And if you don’t have a reasonable document retention policy, create one and follow it.

After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa’s development. The Court even noted that “[t]here is no question that [the employee’s] custodial file would have included documents relevant to the instant litigation.

However, BIPI contended that because they followed their document retention policy, which was deemed reasonable, they should be able to escape fault. As it turns out, BIPI was correct. In an opinion dated September 25, 2013, the Southern District of Illinois held that because BIPI had a reasonable document retention policy, which they fully complied with, sanctions were not warranted. BIPI’s document retention policy called for leaving “all of the employee’s email, user share and hard drive documents in place until 30 days after the employee’s final day with BIPI. After those 30 days, the documents are deleted…Further, when a litigation hold is released, the document retention policy is to delete all documents maintained exclusively under the hold within 24 hours.”



E-Discovery: The Sedona Conference "JumpStart Outline"

Electronic Discovery is new enough to be foreign to practicing attorneys, and technical enough to be intimidating. Preparing to meet obligations related to data preservation, requests for production, court conferences, and FRCP Rule 26 can be a daunting process.

The Sedona Conference Jumpstart Outline (download here) provides a solid starting point for attorneys who wish to instruct clients about their preservation and production obligations, understand the opposing party's preservation efforts, or tailor discovery requests addressed to the opposing party.

Topics discussed within the outline include:
  • Relevant Document Retention Policies
  • Identifying Ke Custodians of Potentially Relevant Information
  • Data Stored on Network Servers
  • Emails and Instant Messages
  • Hard Drives
  • Data on Non-Company Computers
Check out the Sedona Conference website for additional publications detailing current best practices in e-discovery.


E-Discovery: Did you know?

This video was first posted in February, 2010 by e-discovery guru Ralph Losey and electronic archivist Jason R. Baron. It might be a little outdated by now because in technology 15 months is a lifetime, but I didn't have a blog then or I'd have been all over it.

Regardless, it is a terrific piece from two of the experts in their field. You can learn more about the origins of the video here:


Social Media Law Enforcement Guides

Family law attorneys and prosecutors may find this information particularly useful, but I think it's a fascinating read on its own.

EFF, along with students from the Samuelson Clinic at UC Berkeley, filed suit against a half-dozen government agencies seeking their policies for using social networking sites for investigations, data-collection, and surveillance.

Here are the results of the EFF's efforts.

Image Credit: julosstock at stock.xchng