Philip Favro
November 19, 2018
Parties who use technology-assisted review (TAR) must decide whether and how much of their process to disclose to the other side. Another key consideration is whether they should enter into a stipulated use protocol. A new case from Utah—Entrata, Inc. v. Yardi Systems, Inc. —offers insights on these issues, particularly on the role and significance of transparency and cooperation.
October 30, 2018
For nearly a decade, Federal Rule of Evidence 502(d) has provided a straightforward procedure for litigants to safeguard privileged information against waiver by inadvertent disclosure. Properly drafted Rule 502(d) orders eliminate the need for a party claiming the privilege to show that a disclosure of information protected by the lawyer-client privilege or work product doctrine was “inadvertent” as a matter of law. Instead, the party simply demands that adversaries return or destroy the mistakenly produced materials.
October 18, 2018
Great emphasis has been placed over the years on the importance of the Federal Rule of Civil Procedure 26(f) conference. This is because FRCP 26(f) offers parties a forum for addressing discovery issues such as the preservation of particular sources of electronically stored information (ESI). Courts expect parties to use the 26(f) conference to discuss issues regarding the preservation of obvious forms of relevant ESI (like email), as well as those that are not so obvious (like web browser history or messaging application data). Raising these preservation issues at the 26(f) may determine whether key evidence is actually retained for litigation.
September 6, 2018
The summer of 2018 has been a boon for eDiscovery case law, with several courts spotlighting any number of best practices for addressing discovery issues. One such best practice is the role effective custodian interviews play in establishing a defensible preservation strategy. Fulsome custodian interviews are essential for ensuring that relevant electronically stored information (ESI) is preserved. Such interviews are characterized by exhaustive questioning on any number of topics including traditional and newer sources of ESI.