Articles & Publications

December 09 Produce the Metadata!  The Juggernaut Rolls on.

In late October the Arizona Supreme Court ruled that a governmental authority receiving a request for public records must produce the metadata as well as the native electronic files, citing case law from the federal civil arena.  The implications for state civil litigation are clear.  My full article from the December 14, 2009 issue of Inside Counsel is available here. 

October 09 Scotch Tape is not an Answer

In the ongoing soap opera of Covad v Revonet, defendant’s counsel told plaintiff’s counsel that if they didn’t like receiving Excel spreadsheets printed over hundreds of pages, they could paste them together.  Judge Facciola calls this madness.  Read my full article from the October 19, 2009 issue of Inside Counsel here.

August 09 Obey the Law Here, Break it There

Navigating the conflicts between American-style discovery and foreign privacy laws.

Read the full article here.

Apr 09 The Smoking Cow
Some of the biggest subprime/credit crisis cases are moving beyond the motion to dismiss to the discovery stage, and more will follow.  These cases are huge.  E-Discovery will be massive.  Search and cull in this complex area won’t be easy, but it will be absolutely necessary.  Get help.

Read the full article here

Dec ’08 Earlier it was Angels — Now it’s a Special Place in Hell

Counsel who don’t co-operate in electronic discovery face the wrath of an increasingly impatient judiciary.  Read the full article here. 

Sept ’08 Where Angels Fear to Tread

Just because you say so, counsellor, doesn’t make it so.  A discussion of the trilogy of federal decisions in 2008 — United States v O’Keefe, Victor Stanley, and Equity Analytics —  that stand for the proposition that search strategies to reduce electronic data volumes to the most likely relevant documents must be defensible. 

Download pdf now.

June ’08 A Time to Reap, a Time to Cull

There is no single right way to conduct the collection phase of electronic data discovery, but plenty of wrong ways.  The same goes for culling — in 2007 a federal court in Florida fired an early warning shot across the bows of counsel who had been sailing along in the mistaken belief that it was all right to devise back-of-the-envelope keyword lists unilaterally.  From the June 2008 issue of Inside Counsel. Download pdf now.

March ’08 Rocks and Hard Places

US Magistrate Judge in the Southern District of California sanctions Qualcomm Inc $8.5 Million for “monumental discovery violation,”  and outside counsel for turning a blind eye to the red flags that Qualcomm’s document search was inadequate.  From the March 2008 issue of Inside Counsel Download pdf now.

Oct 07 Both Sides of the Borderrainbow_bridge
The rules of discovery are similar in both the United States and most of Canada:  anything relevant and not privileged is subject to discovery.  This paper illustrates the commonality of the issues electronically stored information raises in our American-Canadian tradition of broad discovery in civil litigation.  It is also a useful reference guide for practitioners on one side of the border to find the corresponding provision for a particular e-discovery issue on the other side of the border.  Why is this important?  Because statistically, this is where the international actions will likely be.  If I asked any random ten people reading this “Who is the largest trading partner of the U.S.?” I’d get nine wrong answers.  The correct answer is Canada, by a wide margin.

Download 2 pg version here

Contact us for full 32pg version

Sept 07 The Technology of Electronic Discovery
This White Paper examines the stages of the Discovery phase of litigation when, as is now increasingly the case, the information is in electronic form as opposed to paper. Each stage of the Discovery phase is analyzed and the technological challenges are presented, along with the existing technological solutions for those challenges. Included is a discussion of the roles of electronic data professionals, both those from within the litigant company, and outside experts.

Download Pdf Now

Feb 07 New E-Discovery Rules Pose Challenges for Banks

An interview with a panel of experts about how the 2006 amendments to the Federal Rules of Civil Procedure may affect the banking industry.  Panelists include Cliff Shnier.

Read the full article here.


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