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e-Discovery Sanctions Update: The Lawyer’s Computer, the Iron Rooster, and Rule 37(e)

2017-05-26+0000| | Legal Update, In-house Counsel, Law Firm

051517-new-case-law-3.pngTwo technological events bring fear and loathing to many of us: trying to trade in a defective mobile phone, and walking up to our personal computer and finding it’s fried—in the words of Dickens, dead as a doornail.

In a significant week for e-discovery case law, we’ve had two decisions over the past few days where these hassles have landed litigants—including an attorney—in the hot water of e-discovery sanctions proceedings.

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Discovery Sanctions: US Supreme Court Limits ‘South Park’ Doctrine in Tire Fiasco

2017-05-26+0000| | Legal Update, In-house Counsel, Law Firm

042117-Goodyear-New-Case-Law.pngDuring the debates over the 2015 e-discovery amendments to the Federal Rules of Civil Procedure, one of the biggest points of contention was the change in the sanctions provisions of Fed. R. Civ. P. 37(e).

However, as we’ve discussed before, judges have methods other than Rule 37(e) to sanction bad behavior in discovery. In addition to tools such as Rule 37(b)(2), federal judges can sanction parties under their so-called “inherent authority.”

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Your Friday Diversion: The Law of March Madness

2017-05-26+0000| | Legal Update, Community

blog_friday-diversion-march-madness.pngMarch Madness has become an American tradition. Approximately 350 million people discuss it on social media during the month of March, and it generated a broadcasting rights deal of an estimated $8.8 billion in 2016.

But what exactly is March Madness?

If you said it’s the National Collegiate Athletic Association (NCAA) Men’s Division I Basketball Championship, most people would agree with you.

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e-Discovery Spoliation in Unusual Places: Preserve Your Pickup Truck

2017-05-26+0000| | Legal Update, Law Firm

blog_ediscovery-spoilation-in-unusual-places.pngIn the digital data world of 2017, the Internet of Things is nothing new. Whether it’s alleged Alexa commands from an Amazon Echo or German regulators banning the doll “My Friend Cayla” over concerns nefarious characters could endanger children with the data the alleged toy spy collects, the Internet of Things has become a legal issue.

The legal issue is usually data privacy and protection—but not always.

When Below v. Yokohama Tires Corp., goes to trial Monday, March 6, it should serve as a cautionary tale for e-discovery counsel and legal technology teams. When we think of collecting electronically stored information (ESI), email, texts, social media, or data centers often come to mind.

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At the Border and Beyond: e-Discovery Aspects of Criminal Matters and Investigations

2017-05-26+0000| | Legal Update, In-house Counsel, Law Firm

blog_at-the-border-and-beyond-ediscovery-aspects-of-criminal-matters.pngAs we discussed at Legalweek’s Legaltech 2017, e-discovery has been a crucial part of complex commercial litigation, but it hasn’t been a traditional priority in criminal matters.

Times are changing.

With the proliferation of digital data, e-discovery is not only becoming more of an issue in criminal matters—it’s sometimes becoming just as important as it is in civil litigation.

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TAR Around the World: Next Stop, Australia

2017-05-26+0000| | Analytics & Assisted Review, Legal Update, International, Law Firm, Litigation Support

blog_UK-approves-TAR-sansgavel-1.pngThere is little doubt that technology-assisted review (TAR) has made itself known throughout the world. With case law in the United States and Europe marking its defensibility, and headlines plastering industry media sources on a still-regular basis, there’s simply no way to avoid it. TAR is here to stay.

What’s more encouraging than continued success in these established regions, though, is the technology’s emerging success in other parts of the world. In the last few months, Australia has added its name to the roster of TAR-friendly nations. This week, a formal Practice Note issued by an Australian federal court further validates the technology’s use by case teams who are seeking smarter ways to tackle massive data sets.

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Murder, Data Privacy, and the Internet of Things

2017-05-26+0000| | Legal Update, Law Firm, Cybersecurity & Data Privacy

blog_amazon-echo-case.pngWhen James Bates, Owen McDonald, and Victor Collins began an evening of football, drinking, and hot tubbing on November 21, 2015, they probably had no idea they were on the verge of making new law in the expanding specialty of data discovery.

However, by the following morning, Collins was dead and Bates was in the crosshairs of a police investigation. The Bates home being somewhat typical in the era of the Internet of Things, it included a device known as an electronic home assistant. Thus, a fundamental legal question soon arose: is it lawful for police to seize and examine data from an Amazon Echo?

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e-Discovery Fishing Expeditions and the Mick Jagger Discovery Doctrine

2017-05-26+0000| | Legal Update, Law Firm

111716-mick-jagger-discovery-doctrine.pngDefinition of Discovery:

The pre-trial devices that can be used by one party to obtain facts and information about the case from another party in order to assist the party’s preparation for trial.

See also: Deposition; Fishing trip or expedition

—Black’s Law Dictionary (6th Ed.)

Although the editors of Black’s Law Dictionary have been more diplomatic in subsequent versions by deleting the reference to discovery being a fishing expedition, lawyers and their responding party clients have complained for years that many e-discovery requests amount to just that.

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Election Day and the ‘Impossible’ Feats of e-Discovery

2017-05-26+0000| | Legal Update, Community

110816-electoral-spoliation.pngWrestleMania 2016—you may know it as the 2016 United States presidential race—is coming to a close, and there have been dire predictions about the end of the nation, democracy, and society. These predictions are based, at least in part, on so-called “unprecedented” technology threats and legal threats.

As if this weren’t enough to bring the legal technology community to the ring, questions over the dissemination of government email have made e-discovery itself part of the presidential race. These questions have culminated in disbelief and doubt over what’s really possible in email and document review.

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How to Protect In-House Attorney-Client Privilege

2017-05-26+0000| | Legal Update, In-house Counsel

110316-protecting-inhouse-privilege.pngWhen properly applied and handled, attorney-client privilege protects certain communications from becoming discoverable in litigation by opposing or investigating parties. The underlying goal is to ensure lawyers can provide legal advice to their clients and that clients can be secure in the confidentiality of those communications.

Though more often associated with communications between a business and its outside law firm counsel, or an accused criminal and her defense attorney, privilege may also apply to certain communications between in-house counsel and business personnel in an organization. But it isn’t always simple. Business people and even generalist lawyers often misunderstand attorney-client privilege, especially for communications with in-house counsel.

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The Relativity Blog provides engaging e-discovery and legal technology lessons to a diverse audience of practitioners. Written by the team behind Relativity and the community that drives this industry, the blog is your go-to source for tangible takeaways, thought-provoking discussion, and expert insights into stories and technologies that can help you improve your day-to-day work.

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