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Inside The Rules
The proposed amendments to the Federal Rules of Civil Procedure (FRCP) may be among the most significant changes ever to the code, simply because electronic discovery affects nearly every commercial litigation matter filed daily in the United States. Digital evidence has changed the litigation arena like no other evidentiary influence ' often turning what would otherwise be a nominal tactical dispute into the decisive battle in an entire lawsuit.
Most litigators and others connected to the activities of e-discovery agree that electronic discovery issues are complex and expensive. This premise is partially echoed in the report of the Civil Rules Advisory Committee. The Committee said on pages 2, 7 and 8 of its report that discovery of electronic information “is “more burdensome, costly, and time-consuming” than traditional discovery. The report also noted that:
There is great uncertainty as to whether and when a party may continue some or all of the routine recycling or overwriting functions of its computer system without risk of sanctions. Suspension of such operations can be prohibitively expensive and burdensome, and can result in the accumulation of duplicative and irrelevant data that must be reviewed and produced, making discovery more expensive and time-consuming. (See also, pp. 3, 17 of the report, and pp. 11 and 18 of the proposed amendments.)
The proposed rules take on issues of accessibility and adequate preservation, as well as the burden and cost of review. In addition, the proposed Rule 26(f) change calls for a discovery planning conference by the parties to discuss electronic discovery issues. To some extent, unfortunately, the proposed rule changes lag behind technological advances in business environments. For example, in the very early years of electronic discovery, there may have been occasions where draconian measures were taken to restore data ' particularly backup data. In recent years, however, it's no longer necessary to restore every backup tape or blindly restore “sample” tapes.
Today, an experienced electronic-discovery specialist with knowledge of enterprise technology can target backup media containing responsive data sources through interviews and a review of existing documentation (such as network security access logs). Once responsive locations are identified, the backup can be segregated, preserved and tagged for further review. Most backup software used in today's businesses provides detailed indices displaying files and their location on the backup media. As a result, it is much easier to catalog and select responsive data from backup tapes and backup drives. This often obviates the need for the expensive and time-consuming wholesale restoration, and review, of back- up tapes.
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.