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LEGAL TECH NEWSLETTER

October 2014

ESI Technologies

By Michael Conner and Jeffrey Teso

As many of us were settling on technology platforms and forming case strategies and protocols utilizing ECA software, predictive coding (PC) and technology assisted review (TAR) software entered the market. Both technologies used on their own can provide great benefit, however the advantages of creating an ESI strategy that includes the use of each has numerous benefits that should not be overlooked. Read More...

Court Praises Predictive Coding, Then Rejects It

By H. Christopher Boehning and Daniel J. Toal

in Progressive Casualty Ins. v. Delaney, the court sheds light on the reasons why parties have been reluctant to accept predictive coding, the need for cooperation and transparency with one's adversary, the resulting risks of this cooperation, and highlights a key debate over best practices whether search terms can be used to first limit the universe of documents before predictive coding is employed. Read More...

Efficient Review In a Time-Sensitive Government Investigation

By Sanjay Manocha

Over the past 10 years, government investigations have become increasingly sophisticated in analyzing electronically stored information (ESI). Federal executive departments and agencies have made substantial investments in advanced analytical systems that help investigators and prosecutors filter voluminous amounts of incoming ESI. Respondents to Civil Investigative Demands (CIDs) must recognize that the information provided will be analyzed using these powerful tools. Read More...

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INTELLECTUAL PROPERTY STRATEGIST

A Blurry Distinction with a Huge Difference: Commercial vs. Non-Commercial Speech

Imagine the following two scenarios, and try to figure out what the real difference is. First, your competitor blatantly lies in its advertising about the effectiveness of its products; second, your competitor blatantly lies to a reporter about the effectiveness of its products, and the reporter publishes the lies in an article or in a magazine. It seems like the same situation, but it is not. With the first, you could sue for false advertising because the advertisement is “commercial” speech, whereas with the second, you cannot because the magazine article is “non-commercial” speech. A similar difference is presented if a newspaper uses a picture of a celebrity without the celebrity’s consent to highlight a news article, as opposed to a company using the same celebrity picture in a print advertisement, in the same newspaper, to promote the company. A breach of the celebrity’s right of publicity claim is not available against the newspaper because the news article is “non-commercial,” but is available against the company because the print advertisement is “commercial.” The rationale for both is that while the First Amendment fully protects “non-commercial” speech, it protects “commercial’ speech in a significantly limited way.

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