Blog – The E-Discovery Stage

Authored by attorneys in the firm’s E-Discovery Practice, this blog provides updates and details on recent court cases of note and rule changes relating to electronic discovery issues that may affect litigation.

Recent Blog Posts

  • How Companies Can Plan Ahead and Minimize the Burdens of E-Discovery It can be an enormous challenge for companies to institute a litigation hold and preserve or collect Electronically Stored Information in response to a discovery request in a legal matter. From a business perspective, new technology can be a wonderful thing, offering flexibility, mobility and convenience. However, from a legal and IT (not to mention security) perspective, more devices, more software and apps, and more repositories for ESI can create headaches because it usually means that more data is being generated... More
  • Back it Up: The Importance of Managing E-Discovery Throughout the Litigation The importance of flagging e-discovery issues before and at the outset of litigation has been the subject of much commentary. However, even for the lawyer and client who properly issue a litigation hold or make an e-discovery plan early on, following through on that plan and ensuring the plan complies with the federal rules are just as important. The motto, “set it and forget it,” may sell on Saturday morning infomercials, but it will not satisfy every federal court. In Bruner... More
  • Fox’s Matthew Adams and Jordan Kaplan Author “High-Stakes Digital CSI” for New Jersey Law Journal’s Special E-Discovery and Complex Litigation Supplement Fox Rothschild LLP’s Matthew S. Adams, Esq. and Jordan B. Kaplan, Esq. have authored the New Jersey Law Journal article “High-Stakes Digital CSI” for the special E-Discovery and Complex Litigation supplement that ran in the May 23, 2016 edition of the Garden State’s preeminent legal periodical.  A full text version of the article, discussing key components of digital evidence collection, is located here: “High-Stakes Digital CSI.” ... More
  • E-Discovery in Cross-Border Litigation: The “Blocking Statute Defense” Foreign parties litigating cases in the United States do not always play by the same discovery rules as their domestic counterparts. Sometimes, they invoke their country’s so-called blocking statute—designed to frustrate American discovery—to resist a discovery request for data stored outside of the United States. Turning foreign data over in the normal course, foreign parties’ arguments go, violates the blocking statute, exposing them to criminal and civil penalties in their home country. And because ESI is typically voluminous and permanent, the... More
  • For Now, Residential Funding and “Inherent Authority” Doctrine for Spoliation Sanctions Live On As noted in the Advisory Committee’s commentary to the recently amended Federal Rule of Civil Procedure 37(e), two goals of the amendments were:  (1) to create uniformity among the Federal courts in imposing sanctions for the spoliation of electronically stored information, and (2) to prevent the imposition of harsh sanctions – such as an adverse inference instruction — for the merely negligent, or even grossly negligent, spoliation of ESI. More specifically, the Committee’s comment to amended Rule 37(e) points out that... More
  • Section 1920 Costs for ESI: First Be Careful, Then Be Precise “Loser pays” reforms have gained little traction in the United States, but prevailing parties in federal civil litigation take modest comfort in 28 U.S.C. § 1920.  Under that statute, losers pay the “costs of making copies” of all materials necessary “for use in the case.”  28 U.S.C. § 1920(4).  Courts are increasingly called upon to decide which activities necessary to produce electronically-stored information (ESI) are the functional equivalents of making copies, and which are mere processing tasks leading up to... More
  • Who Bears the Burden of Proving Prejudice for the Unintentional Spoliation of ESI? The new Federal Rule of Civil Procedure 37(e)(1) allows courts to order relief for the unintentional spoliation of Electronically Stored Information in the form of “measures no greater than necessary to cure the prejudice” to the innocent party.  But who bears the burden of proving or disproving “prejudice” and – if the burden of proof falls on the moving party – how can one demonstrate the significance of information that was never in its possession? In Living Color Enterprises, Inc. v. New Era... More
  • Adverse Inference Not Available Under Rule 37(e)(1) As Remedy for Unintentional Spoliation The recently amended Federal Rule of Civil Procedure 37(e) establishes two categories of conduct that can support an order of relief for the spoliation of Electronically Stored Information.  First, where spoliation of ESI was “intentional” (i.e., meant to deprive the other party of the use of the information), the court may award sanctions under Rule 37(e)(2).  Second, where spoliation was not intentional but still resulted in prejudice to the innocent party, the request for relief is governed by Rule 37(e)(1). Rule 37(e)(2) clearly identifies... More
  • Gizmodo Article Brings Interesting Perspective on Justice Scalia’s Technology Legacy This week, a mainstay of the United States Supreme Court for nearly three decades passed away.  Often a lightening rod for progressives, and a hero of ultra-conservative originalists, Justice Antonin Scalia was known for his at times biting rhetoric and unwillingness to reach beyond the literal meaning of words.  Less ink, however, is spilled about Justice Scalia’s positions with respect to the technological matters near and dear to our readers.  Because originalism dominates his legacy, it may be hard to believe... More
  • Chief Justice Roberts on the 2015 Civil Rules Amendments: A “Big Deal” Federal court litigation, Chief Justice John Roberts suggested in his year-end report, can resemble the obsolete practice of dueling: “petty squabbling” that leaves “nothing but scars.” And although the federal courts are “fundamentally sound,” he observed, civil litigation has routinely become “too expensive, time-consuming, and contentious, inhibiting effective access to the courts.” As the Chief Justice admitted, he is hardly the first to lament these problems and to call for change. But he finds potential for that change in the 2015... More