New York Court of Appeals Confirms Attorney-Client Privilege Can Apply Without Anticipated/Pending Litigation or Client’s Affirmative Request for Legal Advice
Discovery Advocate | BakerHostetler
by Edward J. Jacobs, David Choi, Christos G. Papapetrou
1M ago
Key Takeaway: Under New York law, the attorney-client privilege applies to advice from counsel regarding general legal subjects, even when unsolicited and there is no anticipated litigation or pending action. Litigators across the country are accustomed to addressing attorney-client communications in review protocols as only those communications that seek and provide legal advice from counsel. But what if that communication is unsolicited legal analysis of an issue that isn’t directly related to an anticipated or pending dispute? Can that communication be fairly withheld on the basis of attorn ..read more
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FTC and DOJ Update Guidance Regarding Preservation of Data from Collaboration Tools and Ephemeral Messages
Discovery Advocate | BakerHostetler
by David Choi, Edward J. Jacobs
2M ago
The Federal Trade Commission (FTC) and the Department of Justice’s (DOJ) Antitrust Division announced today in a joint statement that both agencies are updating language in their standard preservation letters, second requests, voluntary access letters and compulsory legal process, including grand jury subpoenas, to address organizations’ increased use of collaboration tools and ephemeral messaging platforms. The updates reinforce the “longstanding obligation” to preserve and produce all responsive documents, including data from ephemeral messaging applications that allow messages to disappear ..read more
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A Customized ESI Protocol: The Key to a Successful Litigation Strategy
Discovery Advocate | BakerHostetler
by May Tal Gongolevsky, Edward J. Jacobs
2M ago
Are you using a generic electronically stored information (ESI) protocol without giving it much thought? Paying attention to your ESI protocol is vital, as it can determine the direction of your case and impact your legal risk, cost and efficiencies. It is crucial for litigators to carefully consider the terms of an ESI protocol when drafting and before agreeing to it. By anticipating any obstacles that may arise during the preservation and collection process due to the unique IT posture of their client, legal teams can identify areas that need to be addressed upfront. An ESI protocol should b ..read more
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Kayla Prieto Highlighted in the Women of Legal Tech Series
Discovery Advocate | BakerHostetler
by Kayla M. Prieto
6M ago
In a rapidly evolving world where the intersection of law and technology is increasingly critical, individuals like Kayla Prieto are setting a remarkable example. As an associate in the Litigation Practice Group and a member of the E-Discovery Advocacy and Management team at BakerHostetler, Prieto is making waves in the legal tech industry and her insights are not to be missed. In a recent interview with Legaltech News, Prieto shares her journey, experiences and pearls of wisdom. A Passion for Technology and Law Prieto’s journey into the realm of legal technology was not a typical one. While t ..read more
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‘Heed This Message’: Organizations That Fail to Contemplate Off-Channel Communications ‘Do So at Their Own Peril’
Discovery Advocate | BakerHostetler
by Edward J. Jacobs, David Choi, Michelle N. Tanney
8M ago
Financial Regulators Continue Focus on Off-Channel Communications On Aug. 8, the Securities and Exchange Commission (SEC) announced it had imposed $289 million in fines on 10 broker-dealers for violating recordkeeping provisions of federal securities laws. Similarly, the Commodity Futures Trading Commission (CFTC) announced on the same day that it had imposed $260 million in fines on four CFTC-registered firms for violating CFTC recordkeeping rules. Both the SEC and the CFTC charges were based on the failure to preserve electronic communications, including employees’ “off-channel” communicatio ..read more
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Court Declines To Compel Employer To Produce Data from Employees’ Personal Mobile Devices
Discovery Advocate | BakerHostetler
by Edward J. Jacobs, David Choi, Csilla Boga-Lofaro, Lydia Auzoux
8M ago
In re Pork Antitrust Litig., No. 18-cv-2022 WL 972401 (D. Minn. Mar. 31, 2022) Practical Insight Reliance on an employee’s general statement that they do not use text messages for work-related matters may not be sufficient to rule out their device as a potential source of discoverable data. Relying on an employee’s memory without an accompanying thorough discussion – informed by potentially relevant technical considerations of where data may reside and a more robust effort to locate it – is unlikely to constitute a “reasonable search” for purposes of defending a response to a request for non-o ..read more
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SEC and CFTC Continue Crackdown on Financial Firms Over Off-Channel Communications
Discovery Advocate | BakerHostetler
by Alexandra Karambelas, Michelle N. Tanney, Edward J. Jacobs, David Choi, John J. Carney
8M ago
Key Takeaways HSBC Securities (USA) Inc. (HSBC) and Scotia Capital (USA) Inc. (Scotia Capital) paid a combined $37.5 million in fines to settle actions with the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) for violations arising from the firms’ failure to maintain and preserve employees’ business-related communications on personal devices. These enforcement actions follow years of increased regulator focus on employee use of personal devices as well as recent policy revisions by the Department of Justice (DOJ) concerning employees’ use of third ..read more
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Client and Counsel Sanctioned More Than $2.5 million for ‘Amateur Hour’ Discovery Ineptitude
Discovery Advocate | BakerHostetler
by Edward J. Jacobs, David Choi
8M ago
Practical Insight This case is a cautionary tale for the attorney who may know to say all of the right things when it comes to modern discovery practice but, in fact, lacks the expertise and competence to oversee a defensible discovery effort. This counsel instead subjected the court to a self-described “inner circle of judicial hell” in dealing with discovery ineptitude. As complex discovery has become a specialized field, courts have also grown more sophisticated in their understanding of the hallmarks of competent e-discovery counsel versus those who are merely winging it. Discovery practit ..read more
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DOJ Corporate Criminal Enforcement Updates Shine a Spotlight on Texts and Instant Messaging Applications as Potential Evidence
Discovery Advocate | BakerHostetler
by Edward J. Jacobs, David Choi, Csilla Boga-Lofaro
8M ago
In September 2022, the U.S. Department of Justice (DOJ) issued a memo announcing revisions to the DOJ’s corporate criminal enforcement policies and practices. The memo made clear that the DOJ expects “all corporations with robust compliance programs [to] have effective policies governing the use of personal devices and third-party messaging platforms for corporate communications . . . provide clear training to employees about such policies and . . . enforce such policies when violations are identified.” This policy effectively applies to every business that could conceivably face DOJ inquiry a ..read more
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The Supreme Court Dodges—for Now—the Circuit Split on the ‘Dual Purpose’ Test for Privilege
Discovery Advocate | BakerHostetler
by Jennifer C. Negron, Edward J. Jacobs, David Choi, Csilla Boga-Lofaro
8M ago
In re Grand Jury, 23 F.4th 1088 (9th Cir. 2022), appeal dismissed as improvidently granted, In re Grand Jury, 598 U.S. ____ (2023) (No. 21-1397). Summary of the Case: The Supreme Court, which had initially agreed to consider a circuit split on a privilege issue that commonly arises in discovery, reversed course and dismissed the writ of certiorari as “improvidently granted”—meaning the Supreme Court will not resolve the circuit split this term. The appeal arose from a recent Ninth Circuit decision ordering a law firm to produce documents that reflected “dual purpose” legal and business advice ..read more
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