Category: Trends & Emerging Issues

Posts that Address E-Discovery Trends or Emerging Issues (Including Rule Changes and Pilot Project Announcements)

1
Five Quick Tips for Drafting and Negotiating ESI Protocols
2
Will 2023 Be the Year When the United States Receives an Adequacy Decision under GDPR from the European Union?
3
Children’s Online Privacy Protection Act (COPPA) of 1998: Protection for the US’s Youngest Data Subjects
4
In re Grand Jury: Supreme Court to Consider Attorney-Client Privilege in “Dual-Purpose Communications”
5
Electronic Discovery Institute Article – “The New e-Discovery Wild West: Slack, Teams, Zoom, and Other Collaboration Technologies”
6
New Data Privacy Considerations Heighten the Need for Attention to Records Management and Information Governance Practices
7
K&L Gates Arbitration World Podcast: Virtual Collaboration Tools and their e-Discovery Implications in Arbitration and Litigation
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

Will 2023 Be the Year When the United States Receives an Adequacy Decision under GDPR from the European Union?

Electronic discovery for legal matters within the United States often involves preserving, collecting, processing, reviewing, and producing data that concern individuals living outside the United States. In some of these situations, the data privacy laws of jurisdictions outside the United States can complicate electronic discovery to be performed in the United States. Perhaps the most well-known data privacy law is the European Union’s General Data Protection Regulation (“GDPR”), which outlines requirements related to the processing of the personal data of individuals residing in the and the European Economic Area (“EEA”) and addresses the transfer of data outside the EEA.

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Children’s Online Privacy Protection Act (COPPA) of 1998: Protection for the US’s Youngest Data Subjects

A number of recent state regulations address privacy rights for consumers of all ages, but there is no equivalent federal law protecting all consumer’s privacy rights. That being said, the Children’s Online Privacy Protection Act of 1998 (“COPPA,” at 15 U.S. Code §6501 et seq.) provides some federal protection for data subjects under 13 years of age.  This act requires the operator of a “website or online service directed to children” to provide notice on the website regarding the collection, use, and disclosure of a child’s personal information and to obtain “verifiable parental consent” for the noticed collection, use, and disclosure, with some exemptions.  Parents have the right to request a description of the types of personal information collected, to revoke consent (including the operators’ use and maintenance of already collected data in addition to termination of future collection), and to obtain the personal information collected from their child(ren).  By the same token, a website operator may terminate provision of services to a child when the parent has revoked consent for the use, maintenance, and/or further collection of personal information from the child.  Additionally, website operators are prohibited from offering a prize for, or requiring a child to provide, additional personal information in order to participate in a game or activity.  Under 15 U.S. Code §6504, the Attorney General of any US state may bring civil action for violations of 15 U.S. Code §6502(b) as parens patriae on behalf of the residents of that state.

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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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