Blog

  • Wiretapping
    Legal Updates

    PLAY IT AGAIN, SAM . . . BUT WAIT – WHAT IS HE PLAYING, AND WHO IS SAM?: Website Session Replay Software and Wiretapping

    The trend of class action cases alleging wiretap statute violations against website operators for the use of session replay software to collect information of website users continues to be a concern for companies in 2024.  While many of these cases have turned on whether website operators disclosed and obtained consent from website users prior to deploying any session replay software, a recent decision in a pending class action brought under the Pennsylvania Wiretap Act indicates that consent alone may not be the end of the story in these cases.

  • Creative thinking
    Legal Updates

    Utilizing E-Discovery Tools in Innovative Ways

    As part of the e-discovery process, we use digital means to identify relevant information for use in a legal proceeding. The proceeding may be a large-scale medical malpractice lawsuit, a patent infringement case, a government investigation, or countless other legal actions. However, the skills and resources used in those types of matters can also be used in other areas.

  • Danger
    Legal Updates

    The Pitfalls of Negotiated Preliminary Injunction Orders

    Sunlight Financial L.L.C. v. Hinkle, et al., 2022 WL 17487686 (S.D.N.Y. Dec. 7, 2022) highlights the importance of negotiating strong stipulation orders that protect your client's interests. In this case, the Stipulated Amended Preliminary Injunction Order was overly broad and failed to carve out information that the defense believed to be the confidential, proprietary, or trade secret information of third parties. As a result, the corporate defendant was required to produce documents for forensic examination that had questionable relevance to the specific allegations of the Plaintiff and exposed the defendant to potential future litigation.

  • ChatGPT
    Legal Updates

    ChatGPT and E-Discovery: Match Made in Heaven or Rocky Roads Ahead?

    New technologies are being created and utilized every year. The most significant developments lately are the rise of chatbots - software applications that allow for online chat conversation via text or text-to-speech, without any direct contact with a human operator. Currently, the chatbot garnering the most attention is OpenAI’s ChatGPT program. This article will focus on this technology and how it works either for or against the E-Discovery review process.

  • Increase Efficiency
    Legal Updates

    Document Review Management Best Practices: Daily Reports

    An MBA professor of mine used to be fond of saying “data drives decisions.” His point was that the more information you could get, the more informed the decision you could make. In the context of document review, daily reports can be a timely and efficient method of communicating that critical information. The first few days, and even weeks, of any document review project are full of questions and uncertainty. Does the mere mention of a term make the documents responsive? How substantive does the document have to be to be considered “hot”? Am I tagging too many documents as “not responsive”? One way to gauge whether a document review is on the right track is by having the people reviewing the documents submit daily reports describing what they are seeing and how they are coding those documents.

  • Practical A.I.
    Legal Updates

    Practical A.I. – Useful A.I.-Driven Tools for Lawyers Before the Robots Take Us

    Artificial intelligence chatter on the internet seems to be everywhere in the new year.  In January, a startup announced that an artificial intelligence-powered “robot lawyer” would represent its first defendant in court over a traffic ticket this February in California. The plan, seemingly unguided by human lawyers, came to an abrupt halt in the wake of threats from multiple state bars. But no need to plan a career change just yet – the startup announced last week it was shifting its focus from legal services to consumer rights. Until A.I. replaces us outright, the following are some interesting ways A.I. is making waves in the legal profession. 

     
  • Courthouse 2
    Legal Updates

    WARNING: Follow Your ESI Protocol Because the Court Will – Part TWO

    In Part Two of this blog series, I discuss a recent case regarding noncompliance with preservation provisions in an ESI protocol and provide best practices for negotiating and drafting an ESI protocol. In Part One of this series (which you can find here), I analyzed how courts have resolved ESI protocol disputes with TAR and metadata provisions.

  • Sisters
    Legal Updates

    We Are Family – I’ve Got All My Sisters’ Discovery Obligations and Me

    “We are family.” If you are like many people, you can’t read those words without singing them. Unlike the joyous refrains of Sister Sledge, however, the idea of family may take on a more ominous tone when viewed in the context of familial corporate relationships and the obligation to preserve and/or produce electronically-stored documents or information in litigation. In today’s digital world, related corporate entities may share email servers or electronic databases or jointly engage agents to process or store their electronic data. The use of shared administrative or other departments may further cause the commingling of access to various corporate electronic data repositories. As technical advancements increase and further ease the flow of data between related companies, the question arises what discovery obligations a company may have to preserve or produce its affiliate’s electronic data in litigation to which the related entity is not a party.

  • Legal Updates

    The Duty to Preserve Evidence May Begin Before Formal Notice of Litigation

    The preservation of, or failure to preserve, ESI in a litigation context provides ample opportunities for counsel to stumble and is a fertile area of case law. In this blog we will look at Hollis v. CEVA Logistics U.S., Inc., No. 19 CV 50135, (N.D. Ill. May 19, 2022), an interesting little case in which the Court found that a curative jury instruction was warranted in a matter where the defendant CEVA failed to preserve video evidence of an altercation between the plaintiff Hollis and another employee which resulted in Hollis’s termination. This case is instructive in that it discusses in some detail the  “five threshold requirements” (Hollis, at 2) to impose remedies for failure to preserve ESI under Fed.R.Civ.P. 37(e) as well as the issues of intent to deprive plaintiff of the evidence and of prejudice to the plaintiff. The case is particularly interesting, however, in that it illustrates the potential difficulties in recognizing when a duty to preserve arises, particularly with respect to short-lived, ephemeral evidence that is destroyed or overwritten well before formal litigation commences.