August 29, 2014

California BYOD May Get More Expensive

Earlier this month the California Court of Appeals issued an opinion that could weigh heavily on a company’s decision to have BYOD in California. In Cochran v. Schwan’s Home Service, the Court explained that “…when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them.
August 19, 2014

Bad e-Discovery Habit # 5: Failing to Kick the Tires

It would be inefficient if inside or outside counsel attempted to do all discovery tasks themselves. Yet, if something goes wrong, all counsel may be held accountable. As described in Bad Habit #4: Not Documenting the Whole Process, the standard for counsel’s own conduct and supervision of others is whether counsel made a reasonable inquiry into circumstances and reasonable efforts to comply with obligations. In other words, you must be able to show that you’ve kicked the tires.
August 11, 2014

4 Steps to a Legal Hold – Software Not Required

Do you need to issue and track the status of litigation holds, without specialized software to help with the task? Don’t fret! Legal holds can be done with email, hyperlinks and a spreadsheet. While the details may vary according to the litigation and organization, there are key elements of a legal hold that are universal.
July 31, 2014

Judge Creates the Ultimate Discovery Sanction: Humiliation

Judges have been using a wide variety of remedies and sanctions in discovery cases. Beyond the usual orders of attorney fees, fines, adverse inferences, and limitations on use of evidence, some judges have been especially creative. Educational remedies, for example, have included orders for payments to support e-discovery programs, and orders to attend such programs.
July 28, 2014

The Newest Predictive Coding Case Teaches Us Little About Predictive Coding and Everything About Stipulated ESI Protocols

The District of Nevada has held that a party improperly used predictive coding, and should produce all documents containing keyword hits, in Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL (July 18, 2014) (amending Order of May 19, 2014). Although the court rejected use of predictive coding in this case, the lesson for future litigants is simply this: Don’t agree to a discovery protocol if you have not made efforts to understand the potential burdens associated with it.