Trends & Emerging Issues | Electronic Discovery Law

ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated

May 19 2023

To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding privilege, confidentiality, and other key discovery considerations. But what happens when parties establish requirements in their ESI protocols that they later cannot fulfill? Three recent case opinions reflect how courts can react negatively to such situations.

Update on In Re Grand Jury: US Supreme Court Dismisses Case Regarding Attorney-Client Privilege in “Dual-Purpose Communications”

Apr 21 2023

The suspense and anticipation were fun while they lasted, but proved quite short-lived for those of us excitedly awaiting the US Supreme Court’s consideration of an interesting question regarding attorney-client privilege. While oral argument was held in the case of In re Grand Jury, the US Supreme Court ultimately dismissed the case.

New Opinion by Washington Court of Appeals Identifies Limits on When Sanctions for Spoliation May Be Applied Under Washington Case Law

Apr 07 2023

Courts throughout the United States have different perspectives on the actions that constitute spoliation of evidence and the situations in which these actions should be sanctioned. Furthermore, as courts examine and re-examine these concepts over time, their perspectives shift. Therefore, attorneys, e-discovery practitioners, and parties in litigation must keep in mind the distinctions among different jurisdictions’ definitions of spoliation and their standards for when, and what types, of sanctions should be applied in light of such spoliation.

In its recent decision Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, __ P.3d __ (Wash. Ct. App. Mar. 27, 2023), the Washington Court of Appeals, Division 1, discusses the evolution of Washington case law on spoliation of evidence and provides clarity around the circumstances that would justify the imposition of spoliation sanctions in this jurisdiction. Interestingly, the limits identified in this opinion regarding when spoliation sanctions are available differ from those in place in the federal courts and the courts of other states.

Top Three Trends Discussed at 2023 Legalweek

Mar 24 2023

K&L Gates participated in this week’s 2023 Legalweek in New York City. As members of our firm’s e-Discovery Analysis & Technology (“e-DAT”) Group attended panel discussions regarding emerging legal issues and met with vendors regarding evolving legal technologies, they noted three trends that were being discussed by everyone at the conference.

Have Enterprise Collaboration Tools Made Every Day “Casual Friday” When It Comes to Electronic Communications?

Mar 10 2023

Employees ten years ago could not have anticipated how quickly and completely our workplaces have evolved over the past decade. In the aftermath of the global pandemic, significant numbers of employees have transitioned to telecommuting for some or all of their workweeks. The enterprise collaboration platforms adopted by many workplaces to facilitate this transition include a variety of electronic communication tools through which employees may communicate in a less mindful style than they would use in e-mails or printed correspondence, which, in turn, has created additional risks related to communications created, sent, and stored through these tools.

Reminder: Attorneys’ Duty of Competence Extends to Technological Competence

Feb 10 2023

Within each United States jurisdiction in which attorneys are licensed to practice law, the relevant rules of professional responsibility require attorneys to meet a duty of competence. Such competence is not limited to legal judgment and skill. Instead, this legal ethical duty has been interpreted by most of these jurisdictions to include a duty of technological competence. Technological competence is particularly important when attorneys advise clients regarding electronic discovery, information governance, and other legal issues involving electronic data and information systems.

Five Quick Tips for Drafting and Negotiating ESI Protocols

Jan 27 2023

By addressing how e-discovery issues will be handled in a particular case, ESI protocols can serve a valuable role in escalating such issues for early resolution and reducing later disputes on these topics. Below are five simple reminders for the next time you draft and negotiate an ESI protocol.

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

Dec 09 2022

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.

Category: Trends & Emerging Issues