Gibbons Law Alert

Gibbons Law Alert

Tagged: ESI

Pennsylvania Supreme Court Adopts E-Discovery Amendments to Pennsylvania Rules of Civil Procedure

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 9, 2012

Effective August 1, 2012, Pennsylvania became the most recent state to adopt amendments to its Rules of Civil Procedure addressing the scope of, and limitations on, discovery of electronically-stored information. The amendments to the Pennsylvania Rules of Civil Procedure come more than six years after the Federal Rules of Civil Procedure were amended to address e-discovery. In that time, federal courts have developed a complicated body of law that has often confounded practitioners and jurists alike. Eschewing that complexity, Pennsylvania has essentially rejected much of the federal approach and adopted a more streamlined and “proportional” approach to e-discovery practice.

Judge Peck Stays Defendant’s ESI Production in da Silva Moore Pending Resolution of Several Motions

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 5, 2012

If you’ve been following this blog, then you know that the Monique da Silva Moore, et al. v. Publicis Groupe SA and MSL Group case, in which Magistrate Judge Peck authored the first opinion approving the use of predictive coding, is very contentious. You can read our latest entries discussing this controversial case from March 2 and May 16. It appears there is no sign the tension will abate anytime soon.

Predictive Coding Upheld by District Court: Judge Carter Endorses Judge Peck’s Approval of Computer-Assisted ESI Review

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 16, 2012

On March 2, 2012, we reported on Magistrate Judge Andrew Peck’s February 24, 2012 decision in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), wherein Judge Peck issued the first judicial opinion approving the use of predictive coding “in appropriate cases.” On April 25, 2012, District Judge Andrew L. Carter, Jr. rejected plaintiffs’ bid to overturn that decision, and cleared the way for the use of computer-assisted ESI review in this case and others.

ESI Guidelines for the Bankruptcy Case: The ABA’s Electronic Discovery in Bankruptcy Working Group Issues Interim Report

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Posted in Technology Developments and Issues

On May 14, 2012

Although the Federal Rules of Civil Procedure were updated in 2006 specifically to deal with electronically stored information (“ESI”), Bankruptcy Courts and Bankruptcy practitioners have had little bankruptcy-specific guidelines for managing ESI and electronic discovery issues. As a result, the ABA commissioned the Electronic Discovery (ESI) in Bankruptcy Working Group “to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve [ESI] in bankruptcy cases.” On March 15, 2012, the Working Group published their interim report on ESI in bankruptcy cases in an effort to invite and stimulate comments from a wider audience regarding how ESI issues should be handled in (i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.

Taking the Plunge: Judge Peck Issues First Decision Endorsing Computer-Assisted ESI

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 2, 2012

Late last year, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York, one of the most prominent judicial thought leaders in e-discovery, wrote an article entitled Search, Forward in which he opined that computer-assisted ESI review “should be used where it will help ‘secure the just, speedy and inexpensive’ (Fed. R. Civ. P. 1) determination of cases”, but he forecast that lawyers awaiting a judicial opinion endorsing predictive coding might have “a long wait.” As it turns out, the wait wasn’t very long at all; on Friday, February 24, 2012, less than 6 months after the publication of his article, Judge Peck himself issued the first judicial opinion approving the use of predictive coding “in appropriate cases.”

Show Some Respect: International Privacy and Comity Concerns May Become More Important in Foreign E-Discovery Disputes

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 1, 2012

Twenty-five years ago in Aerospatiale v. District Court of Iowa the United States Supreme Court admonished lower courts that international comity compels them to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” And for the last twenty-five years, courts generally have not heeded that advice, giving short-shrift to the idea that foreign privacy or data protection laws must be enforced if the result is to limit discovery of relevant information. At the urging of lawyers and several influential organizations, that could finally be changing.

NYSBA Publishes Guidelines for “Best Practices In E-Discovery”

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Posted in Litigation Preparedness and Strategies

On December 14, 2011

The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued a Report entitled, “Best Practices in E-Discovery in New York State and Federal Courts.” The Report offers fourteen (14) “Guidelines” for the New York litigator dealing with ESI, and includes a helpful glossary and bibliography. The Report provides a brief and straightforward interpretation of the current state of e-discovery law and recommendations on how to “best” navigate that current landscape.

The Fifth Annual Gibbons E-Discovery Conference Closes With Helpful Guidance on Drafting Records Management Policies

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Posted in Corporate Information and Records Management Policies / Litigation Preparedness and Strategies

On December 12, 2011

An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions’ Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda.

Extended Access to Cell-Site Records Constitutes Fourth Amendment Search, Which Requires Showing of Probable Cause

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 17, 2011

Law enforcement must establish probable cause to obtain a suspect’s cell-site-location records according to a recent federal decision, In Re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information. In that case, Judge Nicholas G. Garaufis of the United States District Court for the Eastern District of New York ruled that a prosecutor’s application for access to a criminal defendant’s cell-site-location records pursuant to the Stored Communication Act (“SCA”) was insufficient to allow their release. Judge Garaufis determined that access to records revealing a criminal defendant’s movements over an extended period of time constitutes a “search” under the Fourth Amendment. Accordingly, such information can only be released upon a showing of probable cause and the issuance of a warrant.

SEC Document Destruction Policy Suspended

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Posted in Corporate Information and Records Management Policies

On October 17, 2011

The SEC recently admonished its enforcement staff attorneys to cease any efforts to purge documents from investigative files amidst criticism that the agency wrongfully destroyed thousands of documents related to high profile enforcement matters, including major fraud investigations involving Wall Street banks. The cease order was disclosed in a letter last month from the SEC’s general counsel. The order was precipitated by a whistleblower — long-time SEC enforcement attorney Darcy Flynn — who advised key congressional representatives that the agency had destroyed thousands of investigative files from preliminary enforcement investigations (internally referred to as “MUIs” — or matters under inquiry).

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