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October 29, 2014

Mediation in eDiscovery


See below for developments in the rapidly evolving law of eDiscovery. If you have any suggestions for content to be included in our updates, please email Craig Brown, the Chair of the Ediscovery Blog Subcommittee, at cbrown@b3legal.com.

Steven C. Bennett, a partner with Park Jensen Bennett LLP and a leading legal authority on eDiscovery, has penned a thoughtful article on the "Potential Uses for Mediation in eDiscovery." Mr. Bennett explains that despite all the attempts to reform the eDiscovery process, the process remains inefficient and expensive. Mr. Bennett proposes the use of mediation to foster cooperation and, thus, facilitate lower-cost, higher-quality eDiscovery processes. While discussing the limits of mediation (power to compel is lacking and technical expertise of the mediator is required), Mr. Bennett advocates for the establishment of a court-sponsored eDiscovery mediation program. This insightful article is linked here.BennettRprtCorr.pdf


This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of B3 Legal, an international contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon. He has served as Subcommittee Chair on eDiscovery with the New York County Lawyers' Association.

Reproduced with permission from Digital
Discovery & e-Evidence, 14 DDEE 146 (Mar. 27, 2014).
Copyright 2014 by The Bureau of National Affairs,
Inc. (800-372-1033) www.bna.com


September 16, 2014

Upcoming CLE Program


An upcoming CLE Program, which is co-sponsored by the Commercial and Federal Litigation Section and the Law Practice Management Committee of NYSBA, is of vital interest to the eDiscovery community. New Horizons in EDiscovery is being kindly hosted by Nixon Peabody LLP (437 Madison Avenue) from 4 - 7 pm this Thursday, September 18th.

Topics include cybersecurity, the role of specialized eDiscovery counsel, and the impact of recent eDiscovery opinions. Esteemed panelists are Hon. Shira A. Scheindlin, Magistrate James Francis IV, Stacey E. Blaustein, Constance M. Boland (program chair), Adam I. Cohen (program chair), Joseph V. DeMarco, John Elbasan, Ian K. Hochman, John Bandler, Taylor M. Hoffman, and Steven C. Bennett.

If you've not yet registered, you can do by clicking "here".


Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

May 13, 2014

Archivists Round Table Event

There's an upcoming event of interest to the E-Discovery community. And it's FREE! On June 4, 2014, The Sedona Conference, E-Discovery Institute and The Archivists Round Table are co-sponsoring an all-day (8:30 a.m. to 4:00 p.m.) conference at Fordham Law School on electronic records, including their creation, use and public accessibility.

To see the agenda, please "click here"

To register for this event, please "click here" and choose the Judicial Records Forum.


Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.


March 18, 2014

Technology-Assisted Review Disputes: New York Pilot Rule Provides National Guidance

See below for developments in the rapidly evolving law of E-discovery. If you have suggestions for content to be included in our update, please email Craig Brown at cbrown@b3legal.com.

Technology-assisted review is a hot topic in the E-discovery world, and parties can address this topic in the SDNY via the Joint Electronic Discovery Submission and Order. This is explained further in the linked article "Technology-Assisted Review Disputes: New York Pilot Provides National Guidance," by Karl Schieneman and Mark Berman.


Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

September 13, 2013

E-discovery Update

See below for developments in the rapidly evolving law of E-discovery. If you have suggestions for content to be included in our update, please email
Craig Brown at cbrown@b3legal.com

Laura Zubulake's Book

Laura Zubulake reached out to the NYS Bar to review her book, Zubulake's e-Discovery, The Untold Story of my Quest for Justice, and the book found its way (thankfully) to me. I'm sure that most of this blog's audience know full well who Laura Zubulake is. For the uninitiated, Ms. Zubulake was the plaintiff in a case that lead to several seminal e-discovery decisions covering, among other things, a party's obligation to produce electronic data and cost-shifting principles.

While many know of the applicable case law, they may not know the story behind the case law, which is exactly what Ms. Zubulake reveals in her book. The book is a smashing success in this effort: we learn of the underlying lawsuit and how Ms. Zubulake's unyielding determination to unearth all relevant evidence, including emails, led to her victory at trial (although the case was settled prior to the appeals). We also learn of Ms. Zubulake's hopes, fears and insights as this case unfolds.

For all those in the e-discovery circles, whether you are attorneys, vendors, technologists, etc., this is a fascinating read, as you can see what helped jump-start this huge industry. The book, however, is by no means a legal thriller, but a factual dissertation of the case from a steadfast plaintiff's perspective.

All in all, this is an excellent read that shows how a "garden variety" employment case can actually come to be one of the most talked about and cited cases related to discovery.


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Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

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August 16, 2013

Cross-Border Discovery

Cross-Border Discovery has always had its own challenges, including dealing with robust European data protection regulations. Now, it appears that dealing with such regulations was made even more difficult, due to the alleged actions of Edward Snowden.

This is described below in an entry written by Foster Gibbons, Senior Director, Managed Review of Xerox Litigation Services. Foster can be reached at foster.gibbons@xls.xerox.com
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Craig Brown is President of B3 Legal, a national contract attorney and paralegal firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

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Cross-Border Discovery in the Aftermath of the Edward Snowden Affair

Amid the cacophony of expressions of 'shock' in European capitals and in Congress over revelations concerning the breadth of NSA surveillance of private communications -- reminiscent of Captain Louis Renault's famous line from Casablanca* -- and the deterioration of US-Russian relations brought on by Russian granting of temporary asylum to the [fugitive/whistleblower] [take your pick] Edward Snowden, an interesting understory of the affair may well be its likely tangible effect on US litigation discovery practice, as repercussions play out in European parliaments and commissions in coming weeks and months. For the litigator conducting discovery involving European data sources, navigating a safe course through the regulatory labyrinth governing the protection and privacy of personal data of European citizens (i.e., a variety of national interpretations of and enactments based on the EEA/EU Data Protection Directive 95/46/EC ) will become increasingly challenging. At same time meeting responsibilities under US pre-trial discovery rules - inherently demanding in the best of times - might become a nightmare as European rules are tightened in the aftermath of the Snowden affair.

US discovery rules generally require preservation and production of "all" potentially relevant electronically stored information, regardless of where situated. EEA/EU data protection regulations, on the other hand, restrict access to, transfer, and exchange of data, principally data containing any personal information. Litigation-based requests for document production under US procedural laws can easily run into conflict with European privacy and data protection requirements. In the worst case, the US client with operations and personnel in European offices might face a legal obligation to disclose potentially relevant records in a U.S. court, while simultaneously under a legal obligation in one or more European states not to access, review, transfer or disclose those same records. How do US companies comply with their e-discovery obligations -- which may involve exporting European data to the US -- yet stay within the letter of European privacy and data protection laws?

The easy answer is, there is no easy answer. And detailed practice recommendations are beyond the scope of this piece. An excellent start at understanding the landscape is provided in the Sedona Conference Working Group 6 paper, Framework For Analysis Of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and e-Discovery (August 2008). It can also be recommended, generally, that US counsel consider the following: (i) seeking the advice of privacy counsel in the relevant EU country to assist in directing the discovery process in compliance with local privacy rules; (ii) narrowly targeting data collection; (iii) where feasible, seeking employees' consent to access their data (principally meaning work emails) for review for potential relevance to the underlying litigation; and (iv) processing and reviewing the data within the EU (redacting personal information where found), leaving to be exported to the US only a reduced volume of material as to which it reasonably can be argued disclosure is required by court order and/or applicable discovery rules in order to preserve or exercise a client's legal claims.

When personal data is transferred outside the EU, counsel is obligated to ensure an adequate level of protection is provided, consistent with EU Directive 95/46/EC. To date, the challenge on this front has been made easier by reason of the US-EU Safe Harbor program, which creates a process by which US law firms and discovery providers hosting data in the US can self-certify as to the integrity and security of their data handling procedures, vouching that they comply with EU privacy principles.

Some or all of the ground rules governing data protection are set to change, in any event. Under debate by the European Commission since before this writing is an updated regulatory schema, the General Data Protection Regulation (GDPR), which is intended to update and strengthen existing protections dating from 1995, contained in the EU Data Protection Directive cited above. Among various proposals for inclusion, a number would significantly restrict data transfers to non-EU nations, including ending the Safe Harbor program. That said, with the benefit of some effective lobbying by US and European business interests and the Obama administration, it had been expected that the new regime of regulation would be watered down and not include the most restrictive provisions. And it had been expected that Safe Harbor would be continued.

The Snowden effect on the direction of the GDPR debate and the fate of the Safe Harbor program - ultimately, if incidentally, affecting e-discovery practice in the US - has been immediate and could be significant. Disclosure of NSA's telecommunications surveillance and, especially, its PRISM program, under which US companies were compelled to surrender private emails, have made data protection and privacy hot topics in Germany's election campaign, and prompted calls by the German Conference of Data Protection Commissioners and others to immediately revoke the US-EU Safe Harbor program and to strengthen controls over the granting of access to the personal data of EU citizens. US litigators might well shudder at the prospect of having an obligation to produce in a US action client data residing in Europe - data that cannot legally be transferred under a new regime of EU regulations. No easy answer, indeed. Stay tuned.

* It could be argued that Snowden did not expose anything that was not already known--or at least suspected - respecting NSA's capabilities to gather and analyze SIGINT from global, and even domestic, sources.


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i The term "personal data" is defined in EU directive 95/46/EC as follows,

Article 2a: 'personal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity . . .

By Foster Gibbons, Senior Director, Managed Review, Xerox Litigation Services, foster.gibbons@xls.xerox.com


July 15, 2013

E-Discovery Update

See below for developments in the rapidly evolving law of E-discovery. If you have suggestions for content to be included in our update, please email
Craig Brown at cbrown@b3legal.com

Duty to Preserve

By Craig Brown

The key question in ESI spoliation cases relates to whether the duty to preserve ESI (and related metadata)has been triggered.

Although the State Bar's "Best Practices in E-Discovery" guidelines stated that there are "no bright lines" related to the trigger, the developing case law continues to provide guidance.

This is explained in the article linked below by Mark Berman, the Secretary of our E-Discovery Committee and member of Ganfer & Shore.

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202609172816&Recent_Decisions_Focus_on_Duty_to_Preserve_ESI_and_Metadata&slreturn=20130615123557

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Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.
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July 9, 2013

E-Discovery Update

See below for developments in the rapidly evolving law of E-discovery. If you have suggestions for content to be included in our update, please email
Craig Brown at cbrown@b3legal.com

Technology-Assisted Review Case Law Summary

By Craig Brown

Technology-assisted review ("TAR") is a methodology touted to reduce the cost of the document review phase of the EDRM model, which is acknowledged as being the most expensive model. Since Magistrate Judge Peck's first decision regarding TAR as a viable piece of the document review puzzle, there have been several additional cases approving this methodology. The developing case law is summarized in the article linked below by Adam Cohen, the co-chair of our E-Discovery Subcommittee and Principal with Ernst & Young.

http://www.insidecounsel.com/2013/05/30/technology-assisted-review-case-law-summary

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Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

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June 12, 2013

The New Constants--Death, Taxes and... Social Media?

Social media presents new and challenging information management issues. Many companies not only permit their employees to use social media, but encourage it. Records managers now need to account for social media just as they need to account for any other means of communication. Litigation holds need to account for the increased use of social media by companies. Judges now treat social media like any other form of electronically stored information ("ESI") and will not tolerate any sort of spoliation of such information. Both plaintiffs and defendants need to know how to best take advantage of social media during the course of discovery and to collect and preserve it when necessary so that it can be preserved like any other form of ESI.

The implications of social media on the e-discovery world are explained fully in the linked article co-written by Ignatius Grande, Senior Discovery Attorney/Director of Practice Support at Hughes Hubbard & Reed LLP and member of our E-Discovery Committee.

http://about.bloomberglaw.com/practitioner-contributions/the-new-constants-death-taxes-and-social-media/


Ignatius Grande is Senior E-Discovery Attorney/Director of Practice Support at Hughes Hubbard & Reed LLP. In his role at Hughes Hubbard, Ignatius also advises case teams and clients on how to best leverage the latest technologies and e-discovery practices to efficiently guide matters from initial document preservation and collection through to review and production.

April 25, 2013

New York State Bar Association CLE program - Reasonable, Ethical and Defensible E-Discovery: A Practical Approach

The NYS Bar recently presented a program on "Reasonable, Ethical and Defensible E-Discovery: A Practical Approach." Our NYS Bar E-Discovery Committee sponsored this event, together with the CLE Committee and the Law Practice Management Committee. This program was organized by Connie Boland of Nixon Peabody, Adam Cohen of Ernst & Young, Sandra Rampersaud of Cravath Swaine & Moore and Jessica Perazzelli Ross of Latham & Watkins.

To a packed house graciously accommodated by Latham & Watkins, three panels comprised of the nation's E-Discovery gurus presented. The first group (Connie Boland of Nixon Peabody, Christopher Costello of Winston & Strawn, Jessica Ross of Latham & Watkins and Farrah Pepper, the GC of GE) spoke about "Model E-Discovery Orders." They introduced the audience to the model e-discovery rules in use in Federal Court (SDNY) and State Court (NY, Commercial Division) and explained how to use such rules in a practical manner in one's practice.

The second group of panelists (Steven C. Bennett of Jones Day, Judge Ira Warshawsky (now with Meyer Suozzi) and Professor Patrick Connors of Albany Law School) spoke about "Ethics in E-Discovery." The primary areas covered were lawyer competence ("get up-to-speed on e-discovery and tech issues, if relevant to your case"); inadvertent disclosure ("enter into a claw-back agreement"); and supervision of non-lawyers ("you're still responsible").

The third panel covered the "Role of E-Discovery Counsel - Perspectives from the Bench and Bar." The esteemed panelists were Adam Cohen of Ernst & Young, Sandra Rampersaud of Cravath, Swaine & Moore, Andrew Evan Roth of SNR Denton, Judge Frank Maas of the SDNY and Judge Ronald Ellis of the SDNY. The premise was that there's a crucial role for a new breed of attorney specialists for law firms and corporate legal departments, that of "E-Discovery Counsel" or the like, who can guide firms and companies through the quick-changing maze of E-Discovery law and compliance.

The above sheds just a ray of light on the incredible practical advice given to the Bar by these learned panelists. For a more fulsome explanation, feel free to contact the State Bar for the webinar information. Also, the course materials are linked here.


Craig Brown is President of B3 Legal, a national contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.