New York of counsel Farrah Pepper is the author of "Robot Review: Will Predictive Coding Win the Trust of the Courts?" [PDF] published in the August 2011 edition of ALM's Law Technology News.
Client Alert | August 1, 2011
As part of its E-Discovery Basics series, Gibson Dunn lawyers discuss issues that may arise when electronically stored information (ESI) relevant to U.S. proceedings is located in foreign jurisdictions.
Client Alert | July 25, 2011
This 2011 Mid-Year E-Discovery Update analyzes trends and developments in e-discovery based on our review of 187 e-discovery decisions from the federal courts issued between January 1 and June 15, 2011 (listed here in an Appendix).
Client Alert | July 22, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to the E-Discovery Basics series, if you have not already done so, please click here. In previous installments of E-Discovery Basics, we discussed litigation preparedness, legal holds, preservation, processing, review and production of electronically stored information ("ESI").
Client Alert | July 18, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here. Production is the next step in the e-discovery life cycle after electronically stored information ("ESI") has been preserved, collected, processed and reviewed.
Client Alert | July 11, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here. After preserving and collecting electronically stored information ("ESI"), the next step is to determine what is relevant (or responsive to document requests or a subpoena), versus what is privileged, irrelevant or non-responsive.
Client Alert | July 5, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here.
Client Alert | June 27, 2011
View PDFThis is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here.In our last installment of E-Discovery Basics, we discussed four general categories of electronically stored information ("ESI") that should be considered for preservation pursuant to a legal hold: active data, inactive and archived data, residual data, and legacy data.
Client Alert | June 20, 2011
Los Angeles partner Gareth Evans and Orange County associate Catherine Brewer are the authors of "French Data Protection Authority Announces Increased Inspections for Compliance with French and European Union Data Privacy Requirements" [PDF] published in the June 15, 2011 issue of EuroWatch.
Client Alert | June 15, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. If you would like to subscribe to future installments of E-Discovery Basics, please click here.When litigation is pending or anticipated, a company should take reasonable steps to preserve relevant electronically stored information (“ESI”) and hard copy documents.
Client Alert | June 13, 2011
This is the fourth in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here.Implementing a legal hold is one of the most important--and sometimes most difficult--phases in the e-discovery life cycle.
Client Alert | June 6, 2011
Printable PDFThis is the third in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to future installments of E-Discovery Basics, please click here.The Boy Scout motto, "Be Prepared," has particular import for companies that are likely to deal with e-discovery. Being prepared can help mitigate costs and risks, ensure timely compliance with preservation obligations, and bolster defensibility.
Client Alert | May 31, 2011
Printable PDFThis is the second in a series of brief introductory guides to practical issues in electronic discovery. If you would like to subscribe to future installments of E-Discovery Basics and other updates, please click here.Understanding the life cycle of electronically stored information ("ESI") through the electronic discovery process is imperative for companies and their counsel to successfully navigate the substantial risks and mitigate the frequently high costs associated with electronic discovery.The Electronic Discovery Reference Model ("EDRM")--an organization dedicated to developing practical guides for managing electronic discovery, improving quality and reducing costs--has created this useful framework for understanding how ESI proceeds thro
Client Alert | May 23, 2011
Printable PDF This is the first in a series of brief introductory guides to practical issues in electronic discovery. If you would like to subscribe to future E-Discovery Basics and other updates, please click here.It is not uncommon to hear from in-house counsel and outside lawyers that they have little interest in learning about electronic discovery.
Client Alert | May 17, 2011
A central tenet of Judge Shira Scheindlin's controversial 2010 Pension Committee decision about legal holds was that a party's failure to issue a written legal hold notice constitutes gross negligence per se, supporting an inference that relevant evidence was destroyed and the opposing party was prejudiced, and justifying sanctions unless the party could rebut the presumption.
Client Alert | May 13, 2011
The French Data Protection Authority--La Commission Nationale de l'Informatique et des Libertés ("CNIL")--announced on April 26, 2011, that it intends to increase inspections of companies and organizations transferring data into and out of France to ensure compliance with French and European Union data privacy laws and regulations. In its press release, CNIL emphasized that the inspections will have a specific focus on verifying that U.S.
Client Alert | May 11, 2011
New York partner Jennifer Rearden and of counsel Farrah Pepper are the authors of "How (Not) to Lose Data and Alienate Judges" [PDF] published in the April 20, 2011 edition of ALM's Law Technology News.
Client Alert | April 20, 2011
New York partner Jennifer Rearden is the author of "Scheindlin's 'Day Laborer' Decision: Much Ado About Metadata" [PDF] published on February 22, 2011 in Legal Technology News.
Article | February 22, 2011
Judge Shira Scheindlin--author of the well-known Zubulake and Pension Committee opinions--has issued a new decision addressing (1) the acceptable format for the production of electronically stored information ("ESI"), (2) whether and to what extent parties must produce metadata, and (3) counsel's communication and cooperation obligations regarding these issues in the Rule 26(f) early meeting of counsel and elsewhere.
Client Alert | February 10, 2011
In a significant development for those who may litigate in the Delaware Court of Chancery, that court has issued guidelines regarding preservation of electronically stored information in cases before it.
Client Alert | January 28, 2011
Highlights The year just ended was an extraordinarily interesting one in the e-discovery area. Highlights included:There were increasing calls for reform of the discovery process as it relates to electronically stored information ("ESI").Competing views of the standards that should apply to sanctions and preservation clashed in the high-profile Pension Committee, Rimkus, and Victor Stanley decisions, which highlighted the splits among the circuits and even within the same district.
Client Alert | January 13, 2011
Denver partner Jessica Brown and associate Scott Campbell are the authors of "Social Media Marketing," published by Law Journal Newsletters' Law Firm Partnership and Benefits Report, Volume 16, Number 9, November 2010. Reprinted with permission from Law Journal Newsletters (November 2010), © ALM Media Properties, LLC.
Client Alert | November 1, 2010
Recognizing the "collective anxiety" in the legal community about preservation and sanctions in e-discovery, Chief Magistrate Judge Paul W. Grimm of the U.S.
Client Alert | October 14, 2010
Los Angeles partner Gareth Evans, New York of counsel Farrah Pepper and San Francisco associates Matthew S. Kahn and Jenna Musselman Yott are the authors of "2010 Mid-Year Report on Electronic Discovery and Information Law" [PDF] published in the July 22, 2010 issue of BNA's Digital Discovery and E-Evidence Report.Reproduced with permission from Digital Discovery and E-Evidence Report, 10 DDEE 12 (July 22, 2010). Copyright 2010 by The Bureau of National Affairs, Inc.
Client Alert | July 22, 2010
This 2010 Mid-Year Update provides an overview of recent e-discovery developments and trends, based on Gibson Dunn's review of 103 e-discovery decisions issued between January 1 and June 17, 2010. The following are highlights:Like last year, sanctions and cooperation were dominant themes in the first half of 2010. Motions to compel and privilege disputes also continued at a steady pace. We noted fewer decisions regarding preservation, form of production, and accessibility of data. Courts have concentrated on more nuanced factual scenarios and discovery disputes arising farther along in the discovery process, such as iterative search terms, protective orders and the application of Federal Rule of Evidence 502. We also noted a substantial increase in decisions a
Client Alert | July 13, 2010
On June 17, 2010, the United States Supreme Court unanimously decided City of Ontario v. Quon, No. 08-1332, 560 U.S.
Client Alert | June 18, 2010
In 2006 and 2009, changes were made to the federal and California discovery rules in order to adapt them to certain unique issues arising out of e-discovery, including the preservation and production of electronically stored information (ESI). However, these changes failed to fully appreciate deeper changes that ESI has wrought to the nature of discovery. The myriad moving parts of the modern IT infrastructure make it remarkably easy to find some fault or error in most e-discovery cases, increasing the opportunities for satellite litigation as well as the costs to clients.
Client Alert | May 21, 2010
While it is unusual for the U.S. Supreme Court to address cases involving scandalous facts or potentially impacting electronic discovery, the Court will face both in April when it hears City of Ontario v. Quon, No.
Client Alert | March 22, 2010
In 2007, Columbia Pictures v. Bunnell sent shockwaves through the legal community with its conclusion that random access memory (RAM) data, a form of "ephemeral data" with a temporary life span, constitutes discoverable electronically stored information (ESI). In the wake of Bunnell, early predictions were of a discovery doomsday in which the preservation and production of such data at great expense would be required. Although these predictions have not yet come to fruition, the relevant case law is still developing, and this remains a topic to watch.In their article published in The New York Law Journal on March 22, 2010, Jennifer Rearden and Farrah Pepper of Gibson Dunn discuss developments in case law since Bunnell and the outlook for discovery obligations relating
Client Alert | March 22, 2010
Los Angeles partner Gareth Evans and New York of counsel Farrah Pepper are the authors of "E-Discovery Principles Revisited" [PDF] published in the January 28, 2010 issue of The Daily Journal.
Client Alert | January 28, 2010
Recent events in courtrooms and in the news highlight the potential significance of so-called "outlier" electronically stored information (ESI) -- such as that found on cell phones and PDAs, voice mail systems, instant messaging systems, chat rooms, and websites.
Client Alert | January 27, 2010
Electronic discovery is one of the most rapidly developing and increasingly important areas of interest for our clients. The past year featured the continued refinement of best practices in e-discovery law, as both courts and litigants continued their struggle to balance cost-effective approaches to discovery with the right to equitable access to discoverable information. The coming year is poised to be another one of significant developments. Our Electronic Discovery and Information Law Practice Group will be carefully watching and reporting these developments to you throughout the year.This 2009 year-end update provides an overview and analysis of the recent trends in e-discovery law, as well as a survey of case law developments. For more in-depth treatment of the
Client Alert | January 15, 2010
Plaintiffs Sanctioned for Failure to Implement Proper Litigation Hold and for Conducting Discovery in an "Ignorant and Indifferent Fashion"Although 2010 has just begun, there has already been a significant development in the area of electronic discovery. Judge Shira Scheindlin of the U.S.
Client Alert | January 14, 2010
Document preservation is one of the earliest and most important stages of document discovery. As federal courts continued to issue a steady flow of decisions in 2009 addressing the topic of document preservation and providing guidance to preserving parties, mastering the basic principles of document preservation is more important than ever.
Client Alert | December 22, 2009
New York associate Farrah Pepper is the author of "To Have and to Hold: A Romantic Guide to Document Preservation" [PDF] published online by ALM on December 16, 2009 at law.com.
Client Alert | December 16, 2009
Los Angeles partner Gareth Evans and New York associate Farrah Pepper are the authors of "Court Holds U.S. Discovery Rules Trump French Law and Hague Convention" [PDF] published in the December 1, 2009 issue of BNA's Digital Discovery and E-Evidence.
Article | December 1, 2009
Los Angeles partner Gareth Evans and New York associate Farrah Pepper are the authors of "Federal Rule of Evidence 502: Getting to Know an Important E-Discovery Tool" [PDF] published in the November 2009 issue of Orange County Lawyer.
Client Alert | November 2, 2009
New York partner Jennifer Rearden and associate Farrah Pepper are the authors of "If The Sedona Conference Builds It, Will They Cooperate? Year in Review" [PDF] published in the October 27, 2009 issue of the New York Law Journal.
Client Alert | October 27, 2009
Los Angeles partner Gareth Evans is the author of "The Recorder: Access Granted" [PDF] published in the July 15, 2009 issue of The Recorder. Reprinted with permissions from the July 15, 2009 edition of The Recorder.
Client Alert | July 15, 2009
Sanctions Cases Double Over 2008; Courts Continue to Press for Cooperation; E⁃discovery Trends in Criminal and Constitutional LawA comprehensive review of more than sixty federal and state court opinions addressing e-discovery issued during the first five months of 2009 reveals a dramatic increase in the frequency with which courts consider and apply sanctions. In part, the increase in sanctions reflects solidifying legal standards governing when a potential litigant must preserve electronic evidence. These opinions also reflect a continuing effort by the courts to urge litigants and their counsel to cooperate in e-discovery matters, and to sensibly and proportionately develop e-discovery protocols. Highlights of 2009 to date include: More than half of the e-disco
Client Alert | July 8, 2009
Alert: Potential Trap for the Unwary re Inaccessible InformationGovernor Schwarzenegger yesterday signed into law Assembly Bill 5, the "Electronic Discovery Act," enacting significant electronic discovery amendments to the California Code of Civil Procedure. Because the legislature deemed it "urgency" legislation, it is effective immediately. Although the legislation largely follows the 2006 electronic discovery amendments to the Federal Rules of Civil Procedure, it differs in its treatment of inaccessible information (such as backup tapes) and in its safe harbor for lost information. Of particular note, the Bill requires parties in their written responses to document requests to object to the production of inaccessible information to preserve th
Client Alert | June 30, 2009
In three opinions issued between May 18 and 29, 2009, the Delaware Chancery Court has provided guidance on several key electronic discovery issues--triggering of the duty to preserve electronically stored information (“ESI”) and the scope of that duty; spoliation of evidence and the factors used to determine sanctions; and cost-shifting in relation to inaccessible data.
Client Alert | June 19, 2009
New York partner Jennifer Rearden and associate Farrah Pepper are the authors of "Judge Issues a "Wake-Up Call" to New York Lawyers: When it Comes to Search Terms, Play Nice and Plan Ahead" [PDF] published in the May 2009 issue of Bloomberg Law Reports.
Client Alert | May 5, 2009
New York associates Farrah Pepper and Matthew Kahn are the authors of "Offensive E-Discovery Depositions: Is There a Defense?" [PDF] published in the November 1, 2007 issue of Digital Discovery & Evidence (BNA).
Client Alert | November 1, 2007
New York associate Farrah Pepper is the author of "Getting Ahead of the E-Discovery Curve: The Junior Attorney's Guide," [PDF] published in the Spring 2007 issue of the Consumer and Personal Rights Litigation Newsletter (ABA Section of Litigation).
Client Alert | April 2, 2007
New York associate Farrah Pepper is the author of "Overview of the E-Discovery Amendments to the Federal Rules of Civil Procedure," published in the December 2006 edition of the Newsletter of the Federal Bar Association, Orange County Chapter.Reprinted with permission, © 2006, Federal Bar Association, Orange County Chapter.
Client Alert | December 31, 2006
Our 2016 Mid-Year E-Discovery Update reflects that the e-discovery landscape today generally looks much better than has in several years.