Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

1
First Pittsburgh “Under the Wire” CLE Seminar Features Presentation on E-Discovery “Hot Topics”
2
Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications
3
In re Grand Jury: Supreme Court to Consider Attorney-Client Privilege in “Dual-Purpose Communications”
4
Electronic Discovery Institute Article – “The New e-Discovery Wild West: Slack, Teams, Zoom, and Other Collaboration Technologies”
5
New Data Privacy Considerations Heighten the Need for Attention to Records Management and Information Governance Practices
6
K&L Gates Arbitration World Podcast: Virtual Collaboration Tools and their e-Discovery Implications in Arbitration and Litigation
7
2023 Best Lawyers in America Recognitions
8
Considerations for Social Media and Web Site Captures
9
iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions
10
Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise

First Pittsburgh “Under the Wire” CLE Seminar Features Presentation on E-Discovery “Hot Topics”

The Pittsburgh office of K&L Gates recently hosted its first “Under the Wire” CLE seminar on November 15th, 2022. The CLE seminar was the first of a new series of in-person CLE events hosted at the K&L Gates Pittsburgh office.

At the inaugural seminar, Daniel Miller (a partner in our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Laura Veith (an associate focusing on commercial litigation) presented on a number of e-discovery “hot topics.” The presentation emphasized how record preservation and collection efforts must adapt in light of clients’ increasing use of new technologies, including mobile devices and applications present on those devices, ephemeral messaging, and enterprise collaboration platforms, such as Microsoft Teams and Slack.

Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications

In their roles as advisors, advocates, counselors, negotiators, and client representatives, lawyers communicate extensively though electronic means, particularly email and increasingly text messages. However, the fact that use of these electronic communication tools is commonplace in legal practice doesn’t mean that attorneys shouldn’t exercise caution when crafting their communications. The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility published a formal opinion this month that advises lawyers to refrain generally from including their clients on emails and texts sent to opposing counsel.

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In re Grand Jury: Supreme Court to Consider Attorney-Client Privilege in “Dual-Purpose Communications”

Because of the volumes of information and the complexities of data found in many cases that require extensive electronic discovery, issues related to attorney-client privilege can require significant attention during the document search, review, and production processes for these cases.  Addressing attorney-client privilege requires particular nuance when considering “dual-purpose communications,” in which both legal advice and business guidance are discussed.  By granting certiorari to hear arguments on In re Grand Jury, 23 F. 4th 1088 (9th Cir. 2022), the US Supreme Court will consider soon a split among federal judicial circuits regarding the test to use when assessing whether attorney-client privilege applies with regard to such “dual-purpose communications.”

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Electronic Discovery Institute Article – “The New e-Discovery Wild West: Slack, Teams, Zoom, and Other Collaboration Technologies”

The pandemic has spawned many new and exciting innovations, but many of those innovations have also created new risks.  One such risk — and often a very material one — is that employees working at home have created a new “Wild West” of e-discovery and data storage, where pandemic pioneers working in their homestead offices may have inadvertently escaped the well-controlled data storage environment in place in their workplace.

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New Data Privacy Considerations Heighten the Need for Attention to Records Management and Information Governance Practices

Information governance and records management are important considerations for all organizations.  New data and documents are generated at ever-increasing rates through the normal (and “new normal”) course of business, and these data and documents must be maintained for different periods of time to satisfy their business and legal compliance purposes.  With regard to legally-mandated retention requirements, certain business sectors (such as banking institutions, aviation and maritime companies, and businesses operating within the scope of federal Department of Energy regulations) are subject to record retention and reporting obligations that extend beyond those applicable to other types of organizations. Also, there may be insurance, contractual, and other considerations applicable to certain types of records that impact the period of time they should be maintained in the ordinary course of business. Finally, the need to preserve records potentially relevant to known or reasonably anticipated legal proceedings can create additional record preservation burdens on an organization.

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K&L Gates Arbitration World Podcast: Virtual Collaboration Tools and their e-Discovery Implications in Arbitration and Litigation

In a recent K&L Gates Arbitration World podcast, Julie Anne Halter (a partner in our Seattle office and co-chair of our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Martin King (a partner in our London office who focuses on international arbitration and complex commercial litigation and disputes) discussed virtual collaboration tools like Slack and Microsoft Teams and the e-discovery challenges, opportunities, and pitfalls these tools may present in the context of arbitration and litigation

Considerations for Social Media and Web Site Captures

Social media and web site content may serve as key evidence for many types of legal matters, including trademark infringement litigation, defamation cases, and employment matters related to harassment and workers’ compensation.  However, capturing screenshots of such content as a means of data preservation for subsequent production in those legal matters may lead to issues related to their proper authentication.

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iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions

On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after the message is sent. Recipients of such messages receive an alert that the iMessage was unsent or edited, but do not see the specific changes.

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Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise

Under 42 U.S.C. 290dd-2, federal law requires “records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States” to be maintained confidentially and disclosed only as provided under this law.  Accordingly, such substance abuse treatment programs and related third-party payers and administration entities should be aware of the restrictions on disclosure and use of patient records relating to certain substance use disorders under this statute and 42 C.F.R. Part 2.  Violations of this regulation may be subject to criminal penalty.  Significantly, this regulation does not compel disclosure of such records even if they fall into permissible circumstances, but rather indicates circumstances in which these records may be disclosed.  Patient consent and/or a court order authorizing disclosure of patient information otherwise prohibited by this regulation is necessary in order to provide this information in response to a subpoena or other legal requirement.

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