As you know, e-discovery has become a large and complex part of litigation over the last decade, and, as new technologies are created, the e-discovery landscape is growing at a rapid rate.
With the goal of providing information that can help you in your e-discovery process, this month we included “The Importance of Cybersecurity in E-Discovery” and “Native Files and Protective Orders.”
We invite you to send us any articles or tips you may have regarding any part of the discovery process, so we can share them with our readers.
The Importance of Cybersecurity in eDiscovery
By Ralph Losey
Cybersecurity is job number one for all litigation attorneys who handle confidential computer data. That’s because electronically stored information (ESI) held by law firms is now subject to frequent attack by criminal hackers. They have figured out that attorneys store valuable data of their clients in law firm computers. So when hackers cannot get at a company’s data directly, usually because it is too well defended, they try to get to it through their law firms. Hackers have found that many law firms are lax in cybersecurity, or, as I like to put it when lecturing on the subject, law firms are the soft underbelly of corporate cybersecurity. Realizing the seriousness of cyber crime today, Jackson Lewis has taken steps in the last few years to significantly strengthen its systems, with the focus on protection of client ESI.
The Problem of the Old Deposition and a New Party at Trial
By Michael Lowry
There are different theories on the best and worst tactics for deposition practice. Even if best practices are followed and favorable deposition testimony is obtained, the shifting sands of litigation might prevent using that testimony at trial. The parties to litigation may change between the filing of a complaint and trial. This can be problematic if a party joins the case after significant discovery occurs. Often, some of these problems are relieved by permitting the newly joined party time to redepose the witnesses it believes are necessary.
For an example of the potential complications, assume the star witness in the case was deposed out of state and gave testimony very favorable to your client. A new party later joins the case, obtains a transcript of deposition 1, and is allowed to redepose the star witness. In deposition 2, the star witness testifies that he read the transcript of deposition 1 to prepare and did not wish to make any changes to that testimony. The star witness’s testimony from deposition 2 is consistent with deposition 1 but not nearly as clear, concise, or persuasive. At the time of trial, the star witness will not attend voluntarily and is beyond subpoena power. Your client wants to use deposition 1. The new party objects and states that only deposition 2 can be used. What happens?