Trends & Emerging Issues | Electronic Discovery Law

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

Oct 14 2022

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

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

Sep 23 2022

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.

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

Sep 16 2022

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.

Chinese Data Security, Data Protection, and Cybersecurity Law: A Recent Enforcement Action Resulting in Large Fines Highlight Risks

Sep 08 2022

Electronic discovery for US litigation and legal proceedings often implicates data outside the US. As data privacy and protection laws evolved around the globe, it’s critical to understand the limitations obstacles that may arise when collecting, processing, reviewing, and producing such data. China’s Data Security Law (“DSL”) and Personal Information Protection Law (“PIPL”), both enacted in 2021, have received heightened attention following China’s imposition of fines totaling roughly $1.2 billion in light of violations of these laws and its Cybersecurity Law (“CSL,” enacted in 2017) by Didi, China’s largest ride-sharing service provider. China’s DSL and PIPL are particularly noteworthy of their potential application to data processing and transfer actions that may occur both during the ordinary course of business and in response to litigation in other jurisdictions, such as the United States.

New Risks of the Evolving Workforce

Aug 30 2022

K&L Gates recently hosted a series of webinars covering potential legal and regulatory implications businesses must consider as a result of the now common hybrid work setting. The cross-practice series focused on compliance issues from a Tax, Data Protection, Privacy, and Security, e-Discovery Analysis and Technology, and Labor, Employment, and Workplace Safety perspective.

Webinar recordings and associated materials are available on the K&L Gates HUB.

Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Aug 29 2016

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

Court Concludes Defendant’s Request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”

Jan 19 2016

Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016)

In this case, the court addressed Defendant’s motion to compel production of additional discovery and, applying newly amended Fed. R. Civ. P. 26(b)(1), determined that Defendant’s request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.” Accordingly, the motion was denied.

“The amendments may not look like a big deal at first glance, but they are.” – Chief Justice Roberts, 2015 Year-End Report on the Federal Judiciary

Jan 04 2016

Chief Justice John Roberts has issued his annual report on the federal judiciary, focused primarily on the 2015 amendments to the Federal Rules of Civil Procedure, including a brief history of their development and discussion of their intended effects. Among other things, the report makes clear that the amendments “mark significant change, for both lawyers and judges, in the future conduct of civil trials.” The report further counsels that:

The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding”—only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change.

A full copy of the report is available for download, here.

Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed

Dec 17 2015

Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)

In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.

Category: Trends & Emerging Issues