Acquisition Gives Local Detroit Clients Two Strategic Elements: Strength, Resources and Technology of National Discovery Company and Personal Service from Local Experts

ROCHESTER, NY and DETROIT, MI – March 15, 2012 – D4, LLC, a national leader in litigation support and e-discovery services to law firms and corporate law departments, today announced its further expansion in Michigan with the acquisition of Detroit Legal Imaging in Detroit. D4 will serve law firms and corporate clients in the Detroit Metro area and throughout Michigan from its office in Grand Rapids and this new office in Detroit.

“We have experienced a tremendous need for D4’s unique e-discovery and litigation capabilities throughout the U.S.,” said John Holland, CEO and founder, D4. “The addition of one of Michigan’s flagship companies, Detroit Legal Imaging, known for its consultative approach and long-standing relationships in its market, will enhance our presence in the region and enable us to deliver on our vision of providing a comprehensive suite of litigation support solutions to clients everywhere.”

With this acquisition, D4 is expanding its offerings in Michigan, while investing in and growing the practice that Troy Richard and his team have created. Detroit Legal Imaging is well regarded for delivering customized litigation support, e-discovery and document management solutions that utilize expert resources and forward-thinking technology. Becoming a part of the D4 family strengthens the company’s ability to better serve law firm and corporate clients in Michigan, while expanding D4’s national footprint to support local and national sales and service delivery efforts.

“For over 20 years, Detroit Legal Imaging has served Detroit and the region and we are excited to grow with D4,” said Troy Richard, managing director, D4 Detroit. “We believe our clients will immediately benefit from having direct access to the resources and expertise of a larger, national company.” Richard will continue to lead initiatives to support and advise customers in the region from the Detroit office.

Detroit Legal Imaging specializes in document imaging, electronic discovery, photocopying and litigation presentation materials and has consistently adapted its offerings based on the evolving needs of the Detroit legal community, while maintaining a strong presence in the state’s legal community.

D4 is a leading provider of electronic discovery, computer forensics and litigation support services to AMLAW firms and Fortune 1000 companies. D4 has been instrumental in helping customers realize up to a 70 percent cost reduction over previous e-discovery solutions. The company’s state-of-the-art data center operations in Rochester are complemented by electronic discovery and litigation support offices throughout the U.S.

About D4, LLC
D4, LLC is the national leader in litigation support and e-discovery services to law firms and corporate law departments. D4 covers the spectrum of the Electronic Discovery Reference Model (EDRM), from identification and preservation of data through forensic and targeted onsite data collection and from data analytics and defensible search methodology through hosted review and production. D4 assists attorneys in litigation response planning, strategies for negotiation of scope and meet-and-confer, computer forensics, expert testimony, cost reduction litigation support projects and in corporate law department operations. The company was founded in 1997 and has offices throughout the country. Visit www.d4discovery.com for more information.

Contact:
Nancy Pieretti
nancypieretti@gmail.com
603-268-8007

Martha MacPherson
Director of Marketing, D4
mmacpherson@d4discovery.com
585-512-3758

Background:

D4 Expands Operations in Michigan with the Acquisition of Litigation Support Services Leader, Detroit Legal Imaging
Source: original article
Author: d4admin
Categories: Electronic discovery, e-discovery, ediscovery

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New York’s First Department Appellate Division is the first New York state appellate court to expressly adopt the “reasonable anticipation trigger” articulated in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003): “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id. at 218. On January 31, 2012, the First Department affirmed the November 9, 2010 Order of the Honorable Richard B. Lowe III which awarded an adverse inference sanction to plaintiff, Voom HD Holdings LLC (“Voom”) against defendant EchoStar Satellite, L.L.C. (“EchoStar”). Voom H.D. Holdings LLC v. EchoStar Satellite LLC, 2012 N.Y. Slip Op. 00658 (1st Dep’t 2012). The First Department found the Zubulake standard to be “harmonious” with existing New York precedent in the traditional discovery context and “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.”

The facts of the Voom case provide a familiar example of the breakdown and souring of relationships between business counterparties in advance of an actual litigation. In mid-2007, EchoStar determined its 15-year “affiliation agreement” with Voom was disadvantageous and, by June 2007, EchoStar’s vice chairman had begun exploring ways to terminate the contract. By July 2007, EchoStar had plainly advised Voom that it believed Voom had committed “material breaches” of the contract and EchoStar reserved its “rights and remedies in equity or at law.” For its part, Voom implemented a litigation hold automatically preserving emails on July 31, 2007; EchoStar did not. Nonetheless, EchoStar continued to threaten Voom with termination of the contract throughout the fall of 2007 and into January 2008. EchoStar’s apparent motivation was to force Voom into retrading the contract resulting in more advantageous terms to EchoStar. On January 30, 2008, EchoStar formally terminated the agreement; Voom brought suit in New York State Supreme Court the following day.

EchoStar issued a “litigation hold” only after Voom commenced suit. Justice Lowe found this hold insufficient for several reasons, including because: (i) the hold did not suspend EchoStar’s automatic and permanent purge of deleted emails 7 days after an email’s deletion; this automatic purge was not suspended until four months after litigation was initiated; (ii) EchoStar relied on its employees — many of whom were presumably not attorneys — to self collect and determine whether documents were potentially responsive to litigation, and to then remove each one “from EchoStar’s pre-set path of destruction.” Most important to the First Department’s adoption of Zubulake, Justice Lowe found the hold to be too little too late in that “EchoStar’s concession that termination would lead to litigation, together with the evidence establishing EchoStar’s intent to terminate, its various breach notices set to [Voom], its demands and express reservation of rights, all support the conclusion that EchoStar must have reasonably anticipated litigation prior to the commencement of this action.” Specifically, Justice Lowe found that EchoStar should have “reasonably anticipated litigation no later than June 20, 2007, the date [EchoStar’s corporate counsel], sent Voom a written letter containing EchoStar’s express notice of breach, a demand, and an explicit reservation of rights.”

Judge Lowe rejected EchoStar’s argument that it was seeking an “amicable business solution” and therefore, no reasonable anticipation of litigation existed: “EchoStar’s argument ignores the practical reality that parties often engage in settlement discussions before and during litigation, but this does not vitiate the duty to preserve. EchoStar’s argument would allow parties to freely shred documents and purge emails, simply by faking a willingness to engage in settlement negotiations.” Finding EchoStar’s conduct constituted gross negligence, Justice Lowe ruled that a negative, or adverse inference against EchoStar at trial was an appropriate sanction.

The First Department affirmed the trial court’s order finding that “an adverse inference was warranted because EchoStar’s spoliation of electronic evidence was the result of gross negligence at the very least.” In doing so, the First Department expressly rejected the argument that the “reasonable anticipation” standard of Zubulake is “vague and unworkable”:

To adopt a rule requiring actual litigation or notice of a specific claim ignores the reality of how business relationships disintegrate. Sides to a business dispute may appear, on the surface, to be attempting to work things out, while preparing frantically for litigation behind the scenes. EchoStar[’s] approach would encourage parties who actually anticipate litigation, but do not yet have notice of a “specific claim” to destroy their documents with impunity.

The Voom decision is notable for at least three reasons in addition to the guidance concerning the timing of implementing a litigation hold. First, while not expressly stating that self-collection in every case is improper, the First Department, citing Pension Comm. Of the Univ. of Montreal Pension Plan, 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010), found, “[i]n this case, EchoStar’s reliance on its employees to preserve evidence ‘does not meet the standard for a litigation hold.’” Second, the Court found the lower court’s consideration of EchoStar’s sanction for bad faith conduct relating to “substandard document practices” in an unrelated District of Maryland case, Broccoli v. Echostar Commc’ns Corp., 229 F.R.D. 506 (D. Md. 2005), to be proper and warranted in assessing gross negligence: “The [Broccoli] case demonstrates that EchoStar was well aware of its preservation obligations and of the problems associated with its automatic deletion of e-mails that could be relevant to litigation to which it was a party.” Third, the Court did not consider email “snapshots” that included relevant emails for certain relevant time periods that were recovered in connection with EchoStar’s other litigations to be a mitigating factor; to the contrary: “These e-mails — a handful only fortuitously recovered, and highly relevant — certainly permitted the inference that the unrecoverable e-mails, of which the snapshots were but a representative sampling, would have also been relevant.”

The Voom opinion raises difficult questions regarding when companies should decide that pre-litigation negotiations have deteriorated to the point that litigation is “reasonably likely,” and even whether that amorphous standard is an appropriate one on which to base litigation hold trigger decisions. In fact, Lawyers for Civil Justice (“LCJ”), which had filed an amicus brief asking the First Department to overturn Justice Lowe’s verdict, issued a “Special Update” on February 1, 2012 calling the Voom decision a “disappointing setback” and contending that it underscores the need for e-discovery reform. Specifically, LCJ argues that Justice Lowe’s verdict “places an unfair burden on corporations and creates an unattainable standard of practice that will leave even the best intentioned corporations vulnerable to unwarranted legal sanction.” The standard adopted by the First Department, one LCJ member stated, “would vastly inflate costs for corporations as electronic data increases.”

Notwithstanding the controversy surrounding this decision, Voom is instructive for several reasons. Voom should prompt an advocate to make herself aware of a company’s e-discovery past and present with respect to unrelated litigations and to counsel her client to learn from its prior mistakes. Further, it highlights that practitioners should weigh the pros and cons of self-collection. At the very least, where a client has self-collected electronic documents, a practitioner should anticipate opposing counsel’s invocation of this new case in an attempt to impugn that self-collection. Finally, and most significantly, Voom confirms that the duty to preserve electronic evidence is not necessarily synonymous with the commencement of a litigation. Indeed, as in Voom, these obligations can arise months before actual litigation and can be triggered internally when a company reasonably anticipates the commencement of legal action, even when that eventuality may be completely unknown to the future adversary.

Elizabeth Ann Fitzwater is Counsel to the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.

Background:

New York’s Appellate Courts Surface on Litigation Hold – First Department Confirms Reasonable Anticipation of Litigation Requires Implementation of Litigation Hold
Source: original article
Author: Elizabeth Ann Fitzwater
Categories: Electronic discovery, e-discovery, ediscovery

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Voom Holdings LLC v. EchoStar Satellite LLC, —N.Y.S.2d—, 2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012)

In this case, the appellate court held that the lower court “properly invoked the standard for preservation set forth in Zubulake v. UBS Warburg LLC”, which requires that a party place a litigation hold once it “reasonably anticipates litigation” and affirmed the lower court’s order imposing an adverse inference for defendant’s spoliation of ESI.

The parties to this action entered into a 15-year contract which governed EchoStar’s distribution of Voom HD’s television programming.  Two years later, EchoStar began searching for ways to end the contract. On June 20, 2007, EchoStar’s corporate counsel sent Voom a letter expressing EchoStar’s belief that Voom had not fulfilled its contractual obligations and that EchoStar was therefore “entitled to terminate the Agreement.”  Voom responded that it had fulfilled its contractual obligations, but EchoStar continued to pursue its termination efforts.  On January 30, 2008, EchoStar formally terminated the parties’ agreement.  The next day, Voom filed suit.

Despite significant lead up to the termination of the contract, EchoStar did not implement a litigation hold until after Voom filed suit.  Four days later, a snapshot of relevant email accounts was taken.  Four months later, EchoStar suspended the automatic deletion of emails.  Until that time, EchoStar relied on its employees to identify emails relevant to the litigation and to preserve them by moving them to separate folders.  Without such action, employees’ sent and deleted emails were permanently deleted after 7 days.  In the course of discovery, certain emails were produced from EchoStar which Voom argued demonstrated that EchoStar should have anticipated litigation prior to Voom’s commencement of the action (thus triggering an obligation to preserve relevant evidence).  Voom moved for spoliation sanctions.  Notably, the highly relevant emails were available only because they had been preserved in email snapshots taken in connection with other litigation.

Sparing many details, the lower court found that EchoStar should have anticipated litigation on June 20, 2007, when it sent the letter containing its express notice of breach, a demand, and an explicit reservation of rights.  In addition to failing to institute a litigation hold, the court also faulted EchoStar’s failure to suspend its automatic deletion of email and its reliance on its employees to identify relevant information.  The court also noted that EchoStar had been on notice of its “substandard document practices” since it was sanctioned for the “same bad faith conduct” in 2005 (See Broccoli v EchoStar Commc’ns Corp., 229 F.R.D. 506 (D. Md. 2005)).  Accordingly the lower court imposed an adverse inference sanction.

On appeal, the appellate court affirmed the imposition of sanctions.  Opening its opinion, the appellate court explicitly approved of the lower court’s reliance on the Zubulake standard requiring preservation upon anticipation of litigation reasoning that the standard was “harmonious with New York precedent in the traditional discovery context and that it provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.”  The court later explained that “[t]he ‘reasonable anticipation of litigation,’ as discussed by Zubulake and its progeny, is such time when a party is on notice of a credible probability that it will become involved in litigation.”  In upholding the standard, the appellate court rejected the suggestion of EchoStar and amicus that “in the absence of ‘pending litigation’’ or ‘notice of a specific claim,’ defendant should not be sanctioned for discarding items in good faith and pursuant to normal business practices” reasoning that to adopt such a rule "ignores the reality of how business relationships disintegrate.  Sides to a business dispute may appear, on the surface, to be attempting to work things out, while preparing frantically for litigation behind the scenes.  EchoStar and amicus’s approach would encourage parties who actually anticipate litigation, but do not yet have notice of a ‘specific claim’ to destroy their documents with impunity.”

Like the lower court, in addition to faulting EchoStar for failing to implement a litigation hold, the appellate court also took issue with EchoStar’s failure to take a snapshot of its email account until four days after the lawsuit commenced, its failure to suspend the automatic deletion of emails for four months, and its reliance on employees to identify potentially relevant information.

Addressing the imposition of sanctions, the appellate court found that the adverse inference was “a reasonable sanction in light of EchoStar’s culpability and the prejudice to Voom” noting that relevance had been presumed because EchoStar had acted in bad faith or with gross negligence in destroying the evidence.  The appellate court also found that an adverse inference was an “appropriate and proportionate” sanction which recognized the prejudice to Voom while at the same time recognizing that there was other available evidence to prove its case.

A copy of the full opinion is available here.

Background:

NY State Court adopts Zubulake Standard: Reasonable Anticipation of Litigation Triggers Duty to Preserve
Source: original article
Author: K&L Gates
Categories: Electronic discovery, e-discovery, ediscovery

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A story of smartphones, drugs, and toys …… read about the winners..and the…

Rounding Up the 10 Biggest IP Litigation Wins of 2011

Background:

Law.com – Rounding Up the 10 Biggest IP Litigation Wins of 2011
Source: original article
Author: David
Categories: Electronic discovery, e-discovery, ediscovery

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Litigators have an interest in making sure that, despite all the obstacles presented by the American system of justice, the value provided their clients by litigating a dispute exceeds the costs. However, in regards to e-discovery, federal and state codes now require the preservation and production of electronic data in all its various forms, with immense costs.

If one is not careful, the costs of electronic discovery alone may well ensure that any victory obtained in the courtroom will be entirely pyrrhic to your client. Yet, failure to reasonably abide by one’s e-discovery obligations may lead to more costs later, in the form of motion practice, additional required discovery, and even possible sanctions.

Several organizations, such as the ACTL and The Sedona Conference are working on developing codes and standards that will bring some order and direction to the e-discovery process. Likewise, the Judicial Conference Committee on Rules of Practice and Procedure are considering changes to the rules of e-discovery that may lighten the litigator’s burden. These proposed fixes, however welcome, address symptoms, not the underlying problem.

It is not novel that wherever there is information that may be relevant to a dispute, the principles of an adversary system of justice require that information be captured, reviewed and produced to the other side. What is new is the rate of technological change in this information age, and the simple fact that companies are generating more information than ever before.

Viewed in this way, it seems that the problem of electronic discovery might actually be a symptom of a larger problem of digital information management.

Accordingly, the most effective solution is one that addresses the information overload at its source, through a company’s adoption of responsible and effective enterprise information management principles. 

Companies adopting technologies that allow them to effectively manage their information so that less is retained, and that which is retained can be seamlessly collected, preserved, and reviewed, are companies that will obtain both a competitive and litigation advantage that could save the company millions in legal and technological costs. Here, the old saying “less is more” holds true, because companies that keep less information have less information to identify, collect, preserve, review, and analyze.

Of course, selecting the right solution and synchronizing the solution with a company’s policies is critical. It requires crossing the gap between the technical jungle and the legal morass to deliver a real solution. Today, organizations seemingly keep information that has no legal, economic or competitive benefit, because the policies they have are not effectuated by the technologies they have acquired.

Large companies have achieved economies of scale by hiring “discovery counsel,” be it an individual dedicated to helping manage the discovery portion of all litigations or outside counsel appointed to serve as National Discovery Counsel. A benefit of retaining such counsel is the company develops a deeper knowledge of the company’s information systems, and that synchronicity between the technology and the law helps lower the company’s legal bill.

Background:

Cost Effective Electronic Discovery in Litigation
Source: original article
Author: Daniel Garrie
Categories: Electronic discovery, e-discovery, ediscovery

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In a recent case in California, Facebook account holders filed a putative class action lawsuit against Facebook, alleging that Facebook knowingly forwarded personal information to online advertisers without its users’ consent. In In re Facebook Privacy Litigation, Plantiffs asserted eight causes of action against Facebook, including violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. and various California laws (both statutory and common law), and all were dismissed.

At issue was the mechanism that sends a “Referrer Header” to an advertiser when a Facebook user clicks on an advertisement posted on the website. Plaintiffs asserted that when an advertiser receives a “Referrer Header” from Facebook, which indicates the webpage address the user was viewing before clicking on the advertisement, the advertiser is able to obtain substantial information about a user, including the user’s name, gender and picture. The court explained that in sending these “Referrer Headers,” Facebook “shares users’ personal information with third-party advertisers without users’ knowledge or consent, in violation of [Facebook’s] own policies.”

The court looked closely at the following language of the Wiretap Act, 18 U.S.C. § 2511(3)(a), which provides in part that an entity:

providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.

Citing the language of the statute, the court found that Plaintiffs could not state a claim under the Wiretap Act under two potential interpretations of Plaintiffs’ allegations. As to the first interpretation, the court found that Plaintiffs could not set forth a claim because the communication was “one from a user to Defendant” and therefore, Defendant could not be held liable for divulging the communication. Similarly, the court found that Plaintiffs also failed to set forth a claim under the second interpretation because the communication was a “communication from a user to an advertiser,” making the advertiser the “addressee or intended recipient.” As with the first interpretation, Defendant could not be held liable for divulging that communication.

Pursuant to the Stored Communications Act (“SCA”), 18 U.S.C. § 2702(a), “an entity providing an electronic communication service to the public ‘shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.’” Nonethless, an electronic communication service provider is permitted to reveal the contents of a communication to “an addresee or intended recipient of such communication” or “with the lawful consent” of an addressee or intended recipient of a communication. 18 U.S.C. § 2702(b)(1) and (3). As with the analysis of the Wiretap Act, the court found that Plaintiffs failed to state a claim under the SCA under either interpretation of Plaintiffs’ claims because Defendant was allowed to divulge the communications to the advertisers. Although the court ultimately granted Plaintiffs leave to amend the complaint to replead their allegations, the court’s initial ruling suggests that Plaintiffs will have their hands full convincing the court that this litigation should progress past the pleading stage.

Scott J. Etish is an Associate on the Gibbons E-Discovery Task Force.

Background:

In re Facebook Privacy Litigation – Uphill Battle for Plaintiffs
Source: original article
Author: Scott J. Etish
Categories: Electronic discovery, e-discovery, ediscovery

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18 November 2011 – In a digital environment where access to information is faster, communication is more reliable, and logistics are more sophisticated than ever before, today’s companies are increasingly operating on a truly global scale. However, accompanying this trend in globalisation is the rise in cross-border litigation, arbitration and regulatory investigations. Companies must now litigate and respond to regulatory matters in multiple jurisdictions, each with its own unique legal requirements and cultural nuances.

In a recent Metropolitan Corporate Counsel article, Drew Macaulay, Director of Business Development at First Advantage Litigation Consulting, examines the hurdles involved with the retrieval, review and production of electronic information in cross-border matters and the potential solutions that corporations and their advisors can employ to overcome these challenges.  

For the full post click here.

Background:

Cross-Border Litigation And Investigation: Overcoming Legal, Cultural And Technical Hurdles
Source: original article
Author: posselist
Categories: Electronic discovery, e-discovery, ediscovery

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The “Dos” and “Don’ts” of litigation hold notices were discussed at the Fifth Annual Gibbons E-Discovery Conference on November 3, 2011. The distinguished panel included the Honorable John J. Hughes, U.S.M.J. (Ret.), the Director and Chair of the firm’s E-Discovery Task Force Mark Sidoti, and Melissa DeHonney, an associate in the Gibbons Business & Commercial Litigation Department and member of the firm’s E-Discovery Task Force. The panel’s PowerPoint presentation, which includes a model litigation hold notice, can be found here.

The panel discussed the anatomy of a good litigation hold letter and walked the audience through best practices for drafting each section. Most importantly, the panel stressed that there is a difference between using a “template,” which is then tailored for a particular case, versus a boilerplate form letter, which is never appropriate. The panel emphasized the importance of recognizing that the target audience may not be familiar with legalese. Some other essentials that the panel discussed include:

• identifying an appropriate contact source that custodians can turn to;
• making sure the hold is directed to the proper recipients;
• tailoring the preservation instructions to fit the client’s information technology structure;
• requiring recipients to acknowledge that they received and will comply with the hold;
• and including an explanation of why preservation is important and the consequences of failing to preserve

It was discussed that preservation does not end with a good litigation hold letter, but that consistent follow-up is also required to effect the ultimate purpose of the litigation hold. The panel noted that this is an evolving process which may require an additional litigation hold with revised and/or new categories.

This panel moved beyond the nuts and bolts of drafting litigation holds and discussed their standing in current case law, including the consequences of a failure to issue a written litigation hold, the discoverability of litigation holds and the exceptions to the “privilege” that might otherwise attach to them. Recognizing that no party’s preservation efforts are ever going to be perfect when judged after the fact, the panel recommended that litigants should always be prepared to explain why their preservation efforts were reasonable when undertaken and maintain a solid contemporaneous record of what they are doing to preserve documents.

Elizabeth Ann Fitzwater is Counsel to the Gibbons E-Discovery Task Force.

Background:

The “Dos” and “Don’ts” of Litigation Hold Notices: Deconstructing the Effective Litigation Hold Notice
Source: original article
Author: Elizabeth Ann Fitzwater
Categories: Electronic discovery, e-discovery, ediscovery

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Fulbright & Jaworski has conducted their Litigation Trends survey for nearly the past decade and the results are always interesting since they tend to capture the mindset of inside counsel and litigators as they anticipate the upcoming year.  In their 8th Annual Litigation Trends Survey, Fulbright noted that 92% of U.S. respondents predict that litigation will either increase or stay the same in the upcoming year.  This trend bodes well for players in the litigation services and eDiscovery sectors, and confirms the counter cyclical nature of the industry.  Breaking down the perceived increases across industry verticals, the Survey noted that the biggest anticipated jumps were in the technology, financial services, healthcare and insurance sectors.  Meanwhile energy (the leading sector from the prior year) was one of the few that predicted a decrease.

Going behind the scenes, there were a number of factors that caused respondents to predict litigation increases.  First and foremost, respondents indicated that “stricter regulation was the number one reason” for the increases, particularly with insurance, financial services, health care and retail sectors.  These concerns around regulatory compliance have been increasingly keeping GCs and corporate boards awake as the governance climate continues to heat up.  This regulation driver showed a demonstrable increase with 46% of all respondents having retained outside counsel to assist with regulatory proceedings, up from 37% in the prior year.  The Survey noted that U.S. companies facing a regulatory investigation were most likely to be under pressure from the DOJ (27%), State Attorney General (24%), OSHA (18%), the EPA (16%) and U.S. Attorney (13%).  Also on the regulatory front, U.S. respondents have increasingly begun to recognize the potential jurisdictional reach of the U.K. Bribery Act, with 25% of U.S. companies stating that they have already conducted a review of existing procedures in preparation for implementation.

In addition to managing risk, most in-house counsel are keenly concerned with controlling litigation costs.  The good news here is that associated costs are predicted to be generally flat.  Yet, eDiscovery remained the largest category targeted for increased spending, with 18% of respondents making this their top priority.  Interestingly, though, large enterprises seem to have been doing a good job of getting eDiscovery expenses under control (likely by taking expensive elements of the EDRM in-house), with these expenses declining among the largest companies, from 42% last year to 24% this year.

The Survey noted that the use of cloud computing has gained speed, with 34% of all public companies using the cloud.  And yet, only 40% of those companies using cloud computing have had “to preserve and/or collect data from the cloud in connection with actual or threatened litigation, disputes or investigations.”  This number appears curiously light, and it should definitely rise during the upcoming year as the plaintiff’s bar gets more savvy about this relatively new source of responsive electronically stored information (ESI).

On the narrower eDiscovery front, the Survey honed in on newer issues like cooperation.  Here, the Survey noted that this Sedona-sponsored concept still hasn’t completely taken hold, with nearly 40% of all respondents claiming that “their company has not made the effort to be more transparent or cooperative” due to a litigation strategy of “defending on all fronts.”  This area appears particularly muddled, with one third saying their previous attempts haven’t been reciprocated and another quarter feeling that their company was already transparent.

All in all,  the 2011 Fulbright Litigation Trends Survey notes trends that appear to be largely in line with the primary drivers of (1) managing risk and (2) lowering litigation costs.  On the risk side, compliance with an increasingly complex regulatory environment is offsetting any potential lull in the litigation environment.  And, on the cost side, eDiscovery continues to be a hot button issue, particularly with the relatively new challenges associated with ESI distributed on social media, cloud computing and mobile sources.

Background:

Fulbright’s 2011 Litigation Trends Report Predicts a Constant Litigation Pace and a Swell of Regulatory Investigations
Source: original article
Author: Dean Gonsowski
Categories: Electronic discovery, e-discovery, ediscovery

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Have you ever felt daunted by the prospect of issuing a litigation hold? If so, you are not alone — particularly in today’s dynamic legal environment, where even judges within the same judicial district disagree as to what is required to satisfy the duty to preserve evidence and avoid spoliation sanctions. Please join us at Gibbons Fifth Annual E-Discovery Conference, where we will deconstruct an effective litigation hold notice paragraph-by-paragraph, explaining why each element is included and how to tailor hold notices to any litigation. We will also explain recent developments in this area of the law, which you can draw on to position your company to effectively issue and administer litigation holds, avoid game-changing spoliation sanctions and return the focus to litigating matters on the merits.

We are privileged to have the Honorable John J. Hughes, U.S.M.J. (Ret.), joining this discussion, marking this esteemed jurist’s third year participating in the firm’s annual e-discovery conference. Joining Judge Hughes will be Gibbons Director and Chair of the firm’s E-Discovery Task Force, Mark Sidoti, and Melissa DeHonney, an associate in Gibbons Business & Commercial Litigation Department who is also a member of the firm’s E-Discovery Task Force and an editor of this blog.

If you would like to attend but have not yet registered, please RSVP to (973) 596-4452 or rsvp@gibbonslaw.com. We look forward to seeing you at the conference!

Background:

Gearing Up for the Litigation Hold Panel Discussion at Gibbons Fifth Annual E-Discovery Conference
Source: original article
Author: Gibbons P.C.
Categories: Electronic discovery, e-discovery, ediscovery

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