April 29, 2016
One of the most critical issues that attorneys must address in litigation is the need to protect their work product. Despite the importance of this issue, some lawyers have forgotten the basic elements of the work product doctrine. They might remember Hickman v. Taylor from law school, together with Justice Jackson’s famous injunction against preparing a case “on wits borrowed from the adversary.” Probe more deeply into nuanced issues such as the discovery of fact or opinion work product, however, and the answers may not come so readily.
April 27, 2016
Those with an interest in civil discovery have been closely following the development of case law interpreting the recently enacted amendments to the Federal Rules of Civil Procedure. This attention is understandable given the apparent impact the rules amendments are having in discovery practice. From the focus on proportional discovery under FRCP 26(b)(1) to the modified sanctions framework created by FRCP 37(e), the amendments are causing counsel and clients to rethink existing litigation readiness practices so they are better prepared to discharge their discovery duties.
April 14, 2016
By now, most people are aware of the trending topic of cybersecurity. They have read about the Ashley Madison, Target, or Sony breaches that have occurred in recent years. These more widely publicized types of cybersecurity breaches involved personal identify information (“PII”) being hacked and either distributed to the public or possibly sold via the dark web. The idea is that this stolen information can be embarrassing or potentially used for identity theft purposes. What is Ransomware? In recent months, there has been a rise in activity of another form of cybersecurity breach using ransomware, a type of malware that infects a computer, shared drive, or piece of hardware.
April 6, 2016
Despite their well-earned reputation for being luddites, most lawyers know by now that information relevant to a particular lawsuit often resides in email, text messages, and traditional social networks like Facebook. While such a “small step” for lawyers is certainly a positive, it also obscures the fact that there are many other, less obvious sources holding relevant electronic data. Many of these sources – including global positioning system (GPS) devices and electronic toll transponders – are often overlooked in discovery even though lawyers use them daily in their personal lives or practices.
March 23, 2016
It has been fascinating to observe the rapid change in discovery rulings among the judiciary since the amendments to the Federal Rules of Civil Procedure were enacted late last year. Whereas courts used to intermittently reference proportionality standards in connection with discovery motions, they are now doing so with regularity. More significant, however, is that courts are routinely using the reinvigorated proportionality limitations found in amended FRCP 26 to temper unreasonable discovery demands.