Understanding of Global Data Privacy Regulations Helps Avoid Conflicts in Cross-Border Discovery Disputes

InsideCounsel recently published, "E-discovery: The need for a transnational approach to cross-border discovery disputes," an article on international discovery issues and the benefit of a respectful approach to document productions outside of the U.S.  Written by Reed Smith Records & E-Discovery Group members David R. Cohen, Regis W. Stafford, Jr. and Caitlin R. Gifford, the piece notes that proposed EU Data Protection Directive regulations have the potential to subject multinational companies to sanctions of up to two percent of annual worldwide revenue for serious breaches, including unlawful data transfers to the U.S.  In addition, although not binding on U.S. courts, the ABA recently issued a resolution and recommendation that states in part that U.S. courts should “consider and respect the data protection and privacy laws of any foreign sovereign..."  This article underscores the importance of a comprehensive global approach to document production in cross-border litigation.

To be invited to future Reed Smith trainings on cross-border e-Discovery issues, please click here.

Predictive Coding Receives Judicial Stamp of Approval

This post was written by David R. Cohen and Caitlin Gifford.

On Friday, February 24, New York Magistrate Judge Andrew Peck issued an opinion and order in Da Silva Moore v. Publicis Groupe & MSL Group, 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), the first documented case to recognize predictive coding as an acceptable method of searching for electronically stored information ("ESI"). "Predictive coding," or computer-assisted review, is a process that can replace some human review with computer review, thereby reducing the cost of large-scale, e-discovery reviews. A typical technique is to identify a suitable "seed set" of documents that are reviewed by case attorneys and coded for relevancy, privilege, and other factors. Based on that coding, the system is trained to learn what is relevant and what is not; then the system itself predicts or suggests documents that are potentially relevant or similar across the document collection.

Click here to read the full alert prepared by Reed Smith's Records and E-Discovery Group.

Changes to Rule 26 Make It Easier To Work With Experts

This post was written by Meghan K. Landrum.

Recent changes to the Federal Rules of Civil Procedure (FRCP) Rule 26 make it easier to communicate with expert witnesses and to prepare them for deposition and trial testimony while still protecting attorney work product. While expert discovery has been a part of federal practice since 1993, the period dedicated to the discovery of attorney-expert communications and draft expert reports has become increasingly time consuming during pre-trial preparation. The amendments to Rule 26 address this development and attempt to create an atmosphere that encourages better communication between attorneys and their experts.

To learn more about the changes made to Rule 26 and the immediate impact this has on working with expert witnesses, read our full alert.

California E-Discovery Act Signed into Law

This post was written by Meghan Landrum and Renee Feldman.

California's tireless Civil Justice Association of California sponsored an electronic discovery bill that was signed into law on June 29, 2009 by Governor Schwarzenegger. The Electronic Discovery Act (“the Act”) establishes procedures for litigants when obtaining discovery of electronically stored information in California. The Act amends the California Code of Civil Procedure, effective immediately, by adding provisions specifically related to electronic discovery.

Modeled after similar electronic discovery rules in the Federal Rules of Civil Procedure, the Act strives to strike a balance between making ESI available to a requesting party without over-burdening a responding party who utilizes mass quantities of ESI in its normal course of business. For more information, please read Reed Smith's full alert.

Can I Get Those Privileged Documents Back? E-Discovery Ruling in Victor Stanley Inc. v. Creative Pipe Inc.

This post was written by Melissa A. Geist and Steven B. Roosa.

On May 29, 2008, the U.S. District Court for the District of Maryland issued a lengthy and noteworthy ruling regarding the discovery of “electronically stored information” or “ESI.” The court held that the defendants waived the attorney-client privilege and work-product doctrine with respect to 165 separate documents. See Victor Stanley Inc. v. Creative Pipe Inc., Civil Action No. KJG-06-2662, 2008 WL 2221841 (D.Md. 2008). The case is particularly instructive because it describes in detail the multiple steps that a litigant should take in order to (1) protect against the inadvertent disclosure of privileged ESI; (2) preserve the privileged status of ESI in the event that it is inadvertently disclosed; and (3) defend the methodology used to search for relevant ESI.

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