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Better Late Than Never
In response to the pervasive discovery of electronic information, and at the urging of the bar and the bench, the Standing Committee on Rules of Practice and Procedure recently published for comment several proposed amendments to the Federal Rules of Civil Procedure (FRCP).
This welcome proposal has been a long time coming. For years, litigants have struggled with discovering and producing electronic information. Many organizations have undertaken monumental efforts and incurred significant costs trying to meet unclear discovery obligations. Others settle merely to avoid the complex issue altogether. The lack of clear or consistent guidance in the FRCP and in well-developed case law exacerbates the issue, especially for large and medium companies that operate and litigate in multiple jurisdictions. As the Advisory Committee on the FRCP (the Committee) explained in its Report of the Civil Rules Advisory Committee:
As electronic discovery becomes more and more common, the burdens and costs of complying with unclear and consistent discovery obligations, which vary from district to district in ways unwarranted by local variations in practice, will also increase.
Many questions arise when electronic information is sought in litigation, such as:
- What is the scope of the request?
- Where is the responsive information located?
- How can the responsive information be collected?
- How can the responsive information be reviewed to ensure preservation of applicable privileges?
- How will the responsive information be produced?
- How can the production be supplemented for responsive day-forward data?
- How is all potentially responsive information preserved to ensure it is not deleted?
These variables are not unique to e-discovery, but they are significantly complicated by the magnitude and character of electronic information. The sheer volume of electronic information makes discovery more burdensome – more information is potentially discoverable with electronic data than with paper. As the Committee recognized, “Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes: each terabyte represents the equivalent of 500 billion pages of plain text.” (See, Report of the Civil Rules Advisory Committee, 3, quoting The Manual for Complex Litigation, 4th, '11.446.) Complicating matters more, electronic information can be stored in a wide variety of locations and formats, such as network storage devices, workstations, laptops, backup tapes, personal digital assistants and cell phones. The unintentional creation, modification or deletion of electronic information through the actions of opening or moving a file, or turning a computer on or off, also challenges those involved in e-discovery efforts.
In complying with the obligation to produce responsive electronic information, litigants and counsel must decide how to filter though mountains of information, determine where responsive information may be located, and identify those responsible for managing the storage media. Also, the task of preserving potentially responsive information and ensuring that it is not unintentionally destroyed or modified is enormous and costly. A litigant that navigates through all of these issues must then address format for production.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.