e-Lessons Learned

E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally.  Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop.  The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions.  This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company.  What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary?  Do they supply all of the e-discovery materials required by American courts?  What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by   French or British?

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On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act, which is effective immediately.  For the most part, the recent eDiscovery amendments to the California Code of Civil Procedure track the federal rules.  For example, similar to the federal rules, the California rules use a broad definition of “electronically stored information,” allow requesting parties to inspect, copy and sample ESI, and require both parties to meet and confer regarding ESI discovery issues early in the litigation (in CA this must be done 45 days before a case management conference compared with 21 days under the federal rules).

However, the California amendments depart from the federal rules in a few distinct and important ways.   Continue reading »

Bridgewater, NJ (April 23, 2010) – Fernando Pinguelo, a Member of Norris McLaughlin & Marcus, P.A., appeared as a guest on Fox News Channel’s live web show, The Strategy Room, hosted by Kimberly Guilfolye.  Pinguelo was interviewed about today’s headlines featuring internet abuse, including the Security and Exchange Commission Office of Inspector General’s 5-year investigation that revealed SEC employees and contractors visiting porn sites and viewing sexually explicit pictures using government computers. Ms. Guilfoyle’s guests today also included Richard “Bo” Dietl and Dr. Kathryn Smerling. 

The Strategy Room airs weekdays from 9 a.m. to 5 p.m. ET for a discussion of the day’s top stories, plus a variety of hour-long shows on topics like business, health, technology, and entertainment.

“Casual use of the internet in the workplace is on the rise.  With up-to-the-minute Facebook statuses and Twitter ‘tweets,’ the use of company time for personal internet use has become common place.  This has become so common that it is obvious employees don’t realize their actions can be tracked and saved.  This new breaking story testifies to the fact that many workers don’t realize the implications of their actions online,” said Pinguelo.

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Often I am asked if certain arrangements and deals are enforceable without a written contract. Sometimes, I am asked that question with a little bit of layman lawyering as to whether the so called “statute of frauds” (this is an ancient statute that essentially says certain classes of contracts) can cut off a contract claim. First, let me say that the law is blind, but not dumb. If there was a real arrangement oral or otherwise, rarely will a court will simply tell the plaintiff that he/she is without a paddle.

This is due to several major reasons. Continue reading »

Though not related to eDiscovery per se, we at eLessons Learned want to alert Law Students and fellow student bloggers of the National Law Review’s writing competition taking place this month.

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site.  No entry fee is required. Applicants can submit an unlimited number of entries each month.

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This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.

The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government.  For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.

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eLessons Learned is happy to announce a great eDiscovery event taking place on Wednesday, April 7th.

The Hispanic National Bar Association (New York Region) In-House Counsel Committee and Huron Consulting Group invite you to join us for a cocktail reception and in-depth panel discussion.

What Every In-House Counsel and the Law Firms Who Represent Them Need to Know About E-Discovery After “Zubulake Revisited: Pension Committee and the Duty to Preserve.”*

Register Here

April 7, 2010
6:30 PM Cocktail Reception
7:15 PM Program

Intercontinental Barclay
111 East 48th Street
New York, NY

Panelists:
• Ralph Losey, Shareholder, Akerman Senterfitt LLP
• Chris O’Neill, Associate General Counsel, IBM Corp.
• Carolyn Southerland, Managing Director, Huron Consulting Group
• Bill Speros, Director of Litigation Support and E-Discovery, Baker Hostetler LLP

The discussion will be moderated by HNBA In-House Counsel Committee Chairs:
Fernando A. Bohorquez, Jr., Partner, Baker Hostetler LLP
Richard A. Lafont, Shareholder, Akerman Senterfitt LLP

During this session, panelists will discuss the practical impact of Judge Schiendlin’s decision for In-House Counsel and Outside Counsel, including best practices for avoiding the e-discovery pitfalls outlined in the opinion.

For questions, please contact Andrea James Smith at 202-585-6811 or ajsmith@huronconsultinggroup.com

*This session has been approved for 1 CLE Credit in NY, NJ, and PA.

Trouble lurks when you rely on ‘a pure heart and an empty head’

Now, I know what you’re probably thinking.  “Revisit Zubulake!?  But that was so long ago!  Surely everything has changed!”  (Sarcasm)

To be fair, things were quite different back then – no iPhones, no clouds (in the IT world), no Google Any-Application-You-Can-Think-Ofs.  The technology landscape has certainly evolved since Zubulake became a household name.

But (at least) two things haven’t changed:  Judge Shira A. Scheindlin’s view of eDiscovery due diligence and parties’ (and their lawyers’) continued failure to meet these expectations.

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Cloud Computing is an IT phenomenon that has been gaining notoriety in the world of technology.  Many of you may have heard of Amazon Web Services and Google Apps but not realized exactly what they are.  After sifting through the “fog” of vast amounts of highly technical information, Cloud Computing essentially boils down to this: Access to a network of servers and connections provided by a third party with large cost benefits.

Generally, this network of servers, referred to as the “cloud,” allows users access to resources and data as needed and at extremely high processing power.  The resources of an entire network, as opposed to those of a single computer, are made available to users in a method analogous to a supercomputer or virtual network server.

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