Electronic Discovery Law

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

1
In re Grand Jury: Supreme Court to Consider Attorney-Client Privilege in “Dual-Purpose Communications”
2
Electronic Discovery Institute Article – “The New e-Discovery Wild West: Slack, Teams, Zoom, and Other Collaboration Technologies”
3
New Data Privacy Considerations Heighten the Need for Attention to Records Management and Information Governance Practices
4
K&L Gates Arbitration World Podcast: Virtual Collaboration Tools and their e-Discovery Implications in Arbitration and Litigation
5
2023 Best Lawyers in America Recognitions
6
Considerations for Social Media and Web Site Captures
7
iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions
8
Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise
9
Chinese Data Security, Data Protection, and Cybersecurity Law: A Recent Enforcement Action Resulting in Large Fines Highlight Risks
10
New Risks of the Evolving Workforce

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

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.

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New Risks of the Evolving Workforce

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.

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