Notable Articles in E-Discovery 3/6/13

A Bad "Day" for a Company Whose In-House Attorney Failed to Properly Preserve Relevant Documents (Susan Nardone, E-Discovery Law Alert)

"An Arizona federal court has determined that default judgment, an adverse instruction and monetary damages are proper remedies for in-house counsel’s failure to take the proper steps to preserve potentially relevant evidence after receiving notice of potential litigation. In Day v. LSI Corporation, Docket No. CIV-11-186-TUC-CKJ, the United States District Court for the District of Arizona granted, in part, the plaintiff-employee’s motion for entry of a default judgment and imposed additional sanctions against the defendant-employer, concluding that the employer’s in-house attorney had a “culpable mind” and acted willfully in failing to carry out the company’s preservation obligations."

Five Steps to Regaining E-Discovery Control in the Era of Big Data (Scott Giordano, KM World)

"The vast majority of e-discovery-related judicial sanctions occur as a result of poor coordination among e-discovery team members and incomplete hand-offs from one application program to another. In the era of Big Data, the risks of sanctions correspond to the growing volume and nature of ESI and the speed at which it arrives in an enterprise. Enterprises can no longer risk a reactive approach to e-discovery. Taking a proactive approach through automation, workflows and the application of advanced technology holds the key for addressing Big Data challenges for all knowledge workers."

Reducing Legal Department Budgets May Be Short-Sighted (Al Driver, The Metropolitan Corporate Counsel)

"Given today’s economic climate, most companies are asking their legal departments to find ways to reduce their budgets. While this may simply be a knee-jerk reaction, general counsel need to be prepared to address the issue, such as by demonstrating that budget reductions would result in limiting the legal department’s ability to positively affect their company’s P&L, or by showing that the legal department’s expenditures are justified to avoid specific risks that would result in much greater losses than the small savings justified."

The Many Types of Legal Search Software in the CAR Market Today (Ralph Losey, E-Discovery Team)

"How many different types of Computer Assisted Review (“CAR”) software are there? How do their secret black boxsearch engines work? What are the most effective types of search software available today? I need to shed some light on these questions as a predicate for a discussion of the next stage of the predictive coding debate. As I said in New Developments in Advanced Legal Search: the emergence of the “Multimodal Single-SME” approach, the next stage of the debate is not whether to use a CAR, or how much disclosure you should make, but which CAR, and, most important of all, how to drive the CAR."

Notable Articles in E-Discovery 2/20/13

Florida Legal Ethics Opinion Clears Way for Cloud Computing (Bob Ambrogi, E-Discovery Search Blog)

"Florida has become the latest state to weigh in on the legal ethics of cloud computing, joining other states that have done so in concluding that lawyers may ethically use cloud computing, provided they exercise due diligence to ensure that the cloud provider maintains adequate safeguards to protect the confidentiality and security of client information."

Facebook Posts and Twitter Invites Don't Violate Non-Solicitation Clause -- Pre-Paid Legal v. Cahill (Eric Goldman, Technology & Marketing Law Blog)

"Employers understandably want to restrict the post-employment activities of their employees and prevent ex-employees from targeting customers and current employees. Although there have only been a few decisions in this arena, courts do not appear willing to restrict social interactions between ex-employees and customers or current employees. And this makes sense. Employers can probably restrict some additional activity around the edges (e.g., posting opportunities that are targeted at customers or employees) but this would probably require very precise contractual language. This would still not result in restricting informal interactions and networking between ex and current employees and customers."

Directors and Information Technology Oversight (Mary Ann Cloyd, PricewaterhouseCoopers on Harvard Law School Forum on Corporate Governance and Financial Regulation)

"Overseeing a company’s information technology activities is a significant challenge for directors. The pace of change in this area is rapid, the subject matter is complicated, and the highly technical language used to describe emerging technologies and evolving risks makes this a challenging area. And many companies are relying more and more on technology to get ahead, often prompting substantial changes in how they operate. All of these factors can make the board’s IT oversight responsibility appear harder than it is."

Adam Losey on Young Lawyers and EDD (video, Law.com)

Adam Losey, an associate at Foley & Lardner and founder of not-for-profit IT-Lex , discusses how electronic data discovery is a value-add for young lawyers seeking to differentiate themselves in a tight job market.

To Tweet Or Not To Tweet: FFIEC Issues Proposed Guidance On Social Media (Stradley Ronon Stevens & Young, LLP, The Metropolitan Corporate Counsel)

"Financial institutions have significantly increased their online presence and suite of services in recent years, and, in response to that trend, on January 17, 2013, the Federal Financial Institutions Examination Council (FFIEC) issued proposed guidance on risk management for financial institutions impacted by social media. The guidance seeks public comment and addresses the application of laws, regulations and policies to the social media activities of banks, savings associations, credit unions and other nonbank entities supervised by the Consumer Financial Protection Bureau. While it does not impose additional obligations on financial institutions, the guidance assists financial institutions in efforts to ensure that internal risk management practices adequately address the compliance and legal risks, reputation risks, and operational risks posed by social media. The guidance seeks to promote institutional awareness of responsibilities to identify, measure, monitor and control such risks within overall risk management programs."