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Friend or Foe: Implications for Preservation and Collection of Social Media and Cloud Evidence Under New Federal Rule of Evidence 902

Pending expected Congressional and U.S. Supreme Court approval, most litigators, e-discovery technology practitioners, and digital forensic experts seem to share the view that the proposed amendments to F.R.E. 902 otherwise set to go into effect December 1, 2017, will serve at least one of their intended purposes, by further promoting a “…just, speedy and inexpensive determination in each matter”, prescribed under Fed. R. Civ. Pro. 1.

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Legal Alert: Newly Enacted Federal Rules of Civil Procedure Affecting E-Discovery

Changes to the Federal Rules of Civil Procedure were approved by the U.S. Supreme Court in April of this year and became effective Dec 1, 2015.  While several rules outlining e-discovery compliance obligations were modified, the changes to Rules 26(b) and 37(e) are especially significant and will increasingly require inside and outside litigation counsel to better understand these rules and fundamentals, from a practice, technology and best practices standpoint. 

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Proportionality in E-Discovery: Tools for Efficiency and Cost Reduction

In our increasingly technological society, parties are encountering a greater demand for electronically stored information (“ESI”) in litigation. This demand has led to the adoption of a concept called proportionality. Proportionality evaluates the costs and benefits of e-discovery, to determine if discovery production is warranted.

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Cutting Outside Counsel Litigation Spend: Insourcing v. Outsourcing "aka" the Magic Behind E-Discovery Right-Sourcing

Most in-house counsel agree that reducing overall outside counsel spend, particularly when it comes to litigation spend, is a laudable goal. While the underlying needs and high-stakes antes of this objective have admittedly increased following the Global Financial Crisis of 2007-2008 and subsequent recession, foreclosures, and rarely seen historically high unemployment figures only recently finding relief, the need to reduce outside counsel litigation spend has always been present according to most, and, as such, is rather old news.   

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Use and Abuse of Attorney-Client Privilege and Work Product Doctrine in E-Discovery

Two  federal courts recently dealt with thorny issues stemming from defendant employers’ use of the attorney-client privilege and work product doctrine. These rulings should be heeded by those of us who develop or revise electronic data review protocols, particularly any  guidance for determining when to withhold documents under the attorney-client privilege or the work product doctrine.

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WELCOME TO THE NEWLY RE-LAUNCHED KMK MONTHLY E-DISCOVERY ROUND-UP

Richard G. Braman

This month has seen some extraordinary developments.  Probably the most noteworthy of which is the passing of Richard Braman, Founder and Executive Director Emeritus of The Sedona Conference.  And, although I never met him personally, his vision, leadership and influence on the world of e-Discovery have blazed an e-Discovery trail and served as a beacon of light for many of us in this industry, and as such, I am forever grateful.  If you are unfamiliar with Mr. Braman, a beautiful tribute to his life and work can be found on The Sedona Conference website.

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Can a Simple Form Reduce Disputes Over ESI?

Can a simple form make ESI discovery easier for us and reduce our clients’ expenses, inconvenience, and distrust of opposing counsel? Having studied a  two-page Order developed by Magistrate Judge Thomas Shields of the U. S. District Court for the Southern District of Iowa, I would answer in the affirmative.

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FURTHER REVISED RULE 37(e) PASSES STANDING RULES SUB-COMMITTEE – NEXT STOP, GENERAL DEBATE

"Let us go on perfecting the Constitution by adding, by way of amendment, those forms which time and trial show are still wanting." --Thomas Jefferson Letters; Letter to Wilson Nicholas, 1803.

Following a series of final revisions to the highly controversial proposed re-draft of Federal Rule of Civil Procedure 37(e), and after significant discussions and debate, the Standing Committee of the Federal Rules and Practice Procedure finally approved a revised rule on May 29, 2014. True to form, the most recent version of the rule as adopted by the Advisory Committee on Civil Rules on April 10 – 11, 2014 did manage to pass, but once again only after significant discussion and debate among the Rules Committee members.  While the Sub-Committee has yet to review two memoranda proposing changes to the Committee Notes for Rule 37(e), the revised rule now moves forward to be heard for general debate and comment by the larger Rules Committee. 

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BYOD [Bring Your Own Device] to Work Concerns

Introduction: Two Major Concerns

Being a seasoned litigation paralegal with approximately 27 years of experience, I foresee quite a few concerns with the concept of BYOD in the corporate and legal industry. As it seems to happen more times then I care to remember, technology is ahead of the curve and the solutions to “rein in” technology are lagging behind. Many of you may be too young to remember when the first sophisticated color copiers came out and there was a problem with checks being copied and pawned off as real. It only took the paper, ink and check manufacturing industries a few months to come up with the technology to work with the copier technology and develop the “copy” solution for checks. Once again there is a scramble to try to meet the solutions to the BYOD dilemma facing many industries today. 

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FROM LAW CLERK TO FIRST CHAIR: EFFECTIVE POSITIONING OF TAR

The selection of the actual TAR technology platform, while important, is not the most salient factor required for making optimal use of TAR.  Rather, identifying and seeking collaborative agreement as to the ultimate strategic use and objectives sought from TAR, and really understanding the what, when, why and how to use it, is the most salient factor required to inform your pragmatic decision regarding whether or not to employ a TAR methodology.

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