eDiscovery

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Seyfarth Shaw is proud to sponsor the 2025 Masters Conference, a premier boutique legal event hosted in cities across the U.S., as well as in Toronto and London. The conference will be held on Tuesday, May 20, 2025, at Seyfarth’s Chicago office and will feature keynote presentations, panel discussions, workshops, and networking opportunities.

Topics will include eDiscovery, Artificial Intelligence, Information and Data Governance, Legal Project Management, Forensics and Investigations, Knowledge Management, and Cybersecurity.

Seyfarth partners Jay Carle, Matthew Christoff, and Jason Priebe will share their insights as featured panelists throughout the day. Additional information about their panel topics is outlined below.

For more information and to register, click here.Continue Reading Seyfarth to Sponsor and Present at 2025 Masters Conference

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This blog post is co-authored by Seyfarth Shaw and The Chertoff Group and has been cross-posted with permission.

What Happened

On July 26, the U.S. Securities & Exchange Commission (SEC) adopted its Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure final rule on a 3-2 vote. The final rule is a modified version of the SEC’s earlier Notice of Proposed Rulemaking (NPRM) released in March 2022. The final rule formalizes and expands on existing interpretive guidance requiring disclosure of “material” cybersecurity incidents.Continue Reading SEC Publishes Public Company Cybersecurity Disclosure Final Rule

Recently, a federal Special Master in the District of New Jersey addressed whether a requesting party waives its right to relevant and discoverable documents when it fails to timely follow up on the responding party’s objections. In In re Valeant Pharmaceuticals International, Inc. Securities Litigation,[1] the Special Master refused to entertain the plaintiffs’ waiver argument, finding that the relevant and discoverable documents should be produced regardless.

In that case, defendant served its first request for the production of documents from plaintiffs on October 22, 2018.[2]  On July 29, 2019, plaintiffs served objections and responses to those requests.[3] Certain responses included general objections.[4] The response to one request, Request No. 7, included a statement that plaintiffs were “willing to meet and confer” with defendant regarding the “appropriate scope of responsive documents.”[5] The response to another request, Request No. 11, included a statement that plaintiffs would conduct a “reasonable search for and produce responsive, non-privileged, or otherwise unprotected communications in their possession, custody, or control.”[6]
Continue Reading Recent Decision Holds That Failure to Timely Follow Up On Objections to Discovery Requests Does Not Waive Discovery

Seyfarth Shaw Partner Jordan Vick is on the panel for the “Playing by the Rules: Rule Changes Essential to Your Practice” session on Friday, November 16, at Georgetown Law’s 15th annual Advanced eDiscovery Institute in Washington, D.C.

Session topics include:

  • The 2015 Amendments to the FRCP and their actual impacts on practitioners, including unintended consequence

…

Seyfarth eDiscovery attorneys Jason Priebe and Natalya Northrip will present “A Practical Roadmap for EU Data Protection and Cross-Border Discovery” at this year’s RelativityFest on October 24, 2017.

This presentation will provide attendees with practical tips for leveraging the new Sedona International Principles to help in your compliance with stringent GDPR requirements, and in seeking…

The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) has released its Commentary on Proportionality in Electronic Discovery. The public comment period on the Commentary closed on January 31, 2017. This Commentary was much anticipated given the revamping of Rules 26(b)(1) and 37(e) of the Federal Rules of Civil Procedure in December 2015, which directly affected the scope of eDiscovery in federal litigation. The 2015 amendments were aimed at curbing gamesmanship and abuses in eDiscovery by elevating the importance of “proportionality” as the guiding principle governing the entire discovery process and by setting forth the framework for addressing the loss of electronically stored information (ESI) that was required to be preserved.

Under the amended Rule 26(b)(1), “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….” (emphasis added). Rule 26(b)(1) also now includes the considerations that bear on proportionality, which were moved from the previous Rule 26(b)(2)(C)(iii), rearranged and expanded. The proportionality factors that courts will take into account are as follows: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant data; (4) the parties’ resources; (5) the importance of discovery for resolution; and (6) the burden or expense relative to benefit.

The amended Rule 37(e) provides guidance on the scope of the preservation effort that the court expects from litigants. Specifically, amendments to Rule 37(e) affected judicial analysis of sanctions for the loss of ESI (1) that “should have been preserved” in the anticipation or conduct of litigation (2) because a party failed to take “reasonable steps” to preserve it and (3) that cannot be restored or replaced through additional discovery. Upon making this finding, a court has to conduct additional analysis, the goal of which is to differentiate “bad faith” conduct from mere negligence, and order sanctions in accordance with the level of egregiousness. Under the amended Rule 37(e), courts will focus on a party’s intent to deprive its opponent of the benefits of the lost ESI and the resulting prejudice to the opponent. Where the court finds “bad faith” conduct, it may order the harsher sanctions, including adverse inference instruction, default judgment or dismissal. However, only measures limited to curing the prejudice are appropriate for cases where culpability is lacking.

Parties engaged in or preparing for litigation should consider how these amendments impact their overall litigation strategy, as well as their eDiscovery process. While the concepts of proportionality and good-faith discovery conduct are anything but new, the 2015 amendments provide the parties and courts with a more robust and defined framework for their application.

To help federal litigants and courts apply the new amendments in designing the eDiscovery process and resolving eDiscovery disputes, the Commentary on Proportionality offers Six Principles for consideration. The following are the key takeaways.Continue Reading Key Takeaways from the Sedona Conference Commentary on Proportionality in Electronic Discovery

In Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016), the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

After consulting with an e-discovery vendor, Plaintiff’s counsel in this case “proposed that the City should use TAR as a ‘more cost-effective and efficient method of obtaining ESI from Defendants.’” “The City declined, both because of cost and concerns that the parties, based on their history of scope negotiations, would not be able to collaborate to develop the seed set for a TAR process.”  The issue was referred to U.S. Magistrate Judge Andrew Peck for resolution.
Continue Reading Judge Peck Won’t Force Use of TAR