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Framing the International E-Discovery Issues: Data Across the Globe

Feature Stories

Courtney Ingraffia Barton, Esq., Vice President, Industry Relations

We live in a global business community fueled by advances in communication technology. An email can travel just as quickly from New York to London as it can from Madison Avenue to Park Avenue.  But the ability to conduct business seamlessly across borders raises some very interesting issues about which legal system governs these transactions. Nowhere is this more complicated than in the world of e-discovery.  In some countries, data, especially personal data, are sacrosanct. Conflict of laws issues related to data collection, processing and review all arise when those activities are conducted abroad and become even more complicated when data is removed from its home state.

Sedona Watch
The Sedona Conference® Goes Global

Feature Stories

Cecil A. Lynn, III Esq., Director, Industry Relations

When people think of Sedona, they usually visualize the breathtaking red sandstone rock formations of a small Northern Arizona town. However, in the legal community, The Sedona Conference® (TSC) means something different, although its name is somewhat of a misnomer as it is not a conference. Rather, TSC is a Sedona-based nonprofit research and educational institution dedicated to the study of law and policy. TSC achieves this goal through the creation of Working Groups or “think tanks” that seek to develop sets of uniform guidelines, principles, and best practices on cutting edge and novel issues of law in the areas of complex litigation, antitrust and intellectual property rights.

FRCP Readiness: 10 Practical Tips for Paralegals

Feature Stories

The amended Federal Rules of Civil Procedure (FRCP)[1] place a tremendous amount of responsibility on parties to meet and confer to identify and resolve issues related to the preservation and production of electronically stored information. The rules also reinforce the notion that lawyers must communicate with their clients to become familiar with their clients electronic information systems and document retention policies. These responsibilities will necessarily trickle down to legal assistants and paralegals who interface with and assist clients in preparing and responding to discovery. The following 10 tips are aimed at giving paralegals and legal assistants a practical approach to readiness for the amended rules.

International E-Discovery
A Clash of Cultures and Law

Guest Articles

Philip M. Berkowitz, Nixon Peabody LLP

E-mail and other electronic records have swiftly become the most important kind of evidence in litigation.  E-mail is spontaneous; it is the equivalent of thinking out loud.  People say things in e-mail that they would never say in a one-on-one conversation, much less in a formal, written memo.  As a result, e-mail often contains admissions against interest, and provides a treasure trove of evidence that can be crucial to the success or failure of a case.

Case Law Summaries

Most viewed case summaries from the Applied Discovery online law library.

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc.2005 Extra LEXIS 94 (Fla. Cir. Ct. Mar. 23, 2005).
After finding that an international investment banking company "deliberately and contumaciously violated numerous discovery orders," a Florida state court imposed sanctions on the company by granting in part a motion for default judgment. The sanctions include an instruction to be given the jury that facts in the complaint, which claims damages of at least $485 million, shall be "deemed established for all purposes" in the action. The jury also will be read a statement describing the company's in-house handling of electronic discovery requirements and describing the court's findings regarding discovery misconduct by the company. The jury will be instructed that it may consider this additional information in determining whether the company "sought to conceal its offensive conduct" and in deciding whether punitive damages should be assessed against the company.
Williams v. Sprint/United Mgmt. Co.,2005 U.S. Dist. LEXIS 21966 (D. Kan. Sept. 29, 2005).
In a primer on the discoverability of meta data, a court held that a party should not have electronically "scrubbed" the meta data off of spreadsheets it was ordered to produce. Following the Sedona Principles, the court concluded that "the producing party should produce the electronic documents with their meta data intact, unless that party timely objects to production of meta data, the parties agree that the meta data should not be produced, or the producing party requests a protective order."
Zubulake v. UBS Warburg LLC,2005 U.S. Dist. LEXIS 4085 (S.D.N.Y. Mar. 16, 2005).
In an earlier decision (Zubulake V), the court imposed an adverse jury instruction sanction on UBS Warburg for acting willfully in destroying potentially relevant information contained in email. In response to motions in limine in preparation for trial, the court ruled (Zubulake VI) that providing the jury the court's five previous discovery opinions would unfairly prejudice UBS. Also, the court held plaintiff will not be allowed to introduce correspondence concerning the discovery disputes unless UBS first introduces evidence to show that any failure to produce information was reasonable. Finally, the court ruled that plaintiff would not be allowed to call defense counsel to the stand to testify regarding preservation of email and backup tapes.
E*Trade Secs. LLC v. Deutsche Bank AG2005 U.S. Dist. LEXIS 3021 (D. Minn. Feb. 17, 2005).
In response to a plaintiff's claim that a defendant securities firm had turned "the litigation process into a sport of dirty tricks," a federal magistrate has recommended that sanctions in the form of an adverse jury instruction should be imposed on the defendant.
Williams v. Mass. Mut. Life Ins. Co.2005 U.S. Dist. LEXIS 1555 (D. Mass. Feb. 2, 2005).
In an employment discrimination action, the court denied the plaintiff's motion to appoint a neutral expert to search the defendants' computer system for an allegedly incriminating email.
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