By David Yurkerwich / Navigant

 

The Chinese intellectual property sector has been changing and growing for years, but few people would tell you so. The country has long been labeled as an IP rights violator and generally carries a bad reputation in its handling of copyrights. But Chinese companies are becoming more aggressive in building patent portfolios.

Continue Reading  New Risks – and 3 Tips – for Patent Holders in China: Chinese companies have aggressively grown their portfolios

Interview with Jordan Thomas / Labaton Sucharow LLP

For six years Jordan Thomas has led the whistleblower representation practice at Labaton Sucharow LLP, which specializes in SEC cases. Thomas, a former assistant director in the SEC’s Enforcement Division, has worked as the practice’s sole partner, “borrowing” associates from the firm to help. But in May, as talk of the new administration’s desire to dismantle Dodd-Frank continued to swirl, Thomas made a startling announcement. He had just hired three partners to boost the practice to another level. The new hires were Steven Durham, former chief of the Fraud and Public Corruption Section of the U.S. Attorney’s Office in Washington, D.C.; Timothy Warren, former associate director in the SEC’s Enforcement Division; and Robert Wilson, former deputy assistant director in the Enforcement Division. We couldn’t help but wonder: Why three, and why now? The interview has been edited for style and length.

Continue Reading Civil Justice Playbook: Doubling Down on Whistleblowers – Labaton discounts the supposed demise of Dodd-Frank

Interview with Brian Bauer / PHENIX Investigations, Inc.

 

Brian Bauer, chief executive officer of PHENIX Investigations, Inc., took an unusual path to a career in corporate investigations. He didn’t come from a career in law enforcement, as so many investigators have. But his background helped him hone an approach that has served him well during his two decades in business. And it’s one that a lot of businesses would do well to emulate. It’s all about the clients. The interview has been edited for style and length.

Continue Reading Corporate Investigations Made Easy: How one firm lets the clients call the shots

Interview with Frank A. Segall and Scott H. Moskol /Burns & Levinson 

 

Frank A. Segall and Scott H. Moskol co-chair the cannabis business advisory group at Burns & Levinson, where they have built an unusual practice helping individuals and companies involved in the marijuana industry navigate the complex and rapidly changing legal and business environment. MCC talked to them about the growth and opportunities in this new area of the law. The interview was edited for style and length.

Continue Reading Growing Their Own: How one firm is working to bring the cannabis business into the mainstream

Interview with M. Melissa Glassman / McGuireWoods, LLP 

 

Not every woman starts law school shortly after she starts a family. And of those who do, not all of them decide to go to work at a large firm as a litigator – and somehow survive to tell the tale. But M. Melissa Glassman is not every woman. And Glassman, now a deputy managing partner at McGuireWoods LLP, did a lot more than survive. But she insists she never aspired to be Superwoman. The interview has been edited for style and length. Continue Reading Finding a Way to Make It All Work: A law firm leader and litigator looks back on her long career

By David White / AlixPartners LLP

Responding to data breaches can be a tricky business. If not managed correctly, corporate liability can easily be exponentially compounded. The key to successfully managing any complex crisis lies in the planning. It’s important to develop a carefully laid-out process long before the fire alarms start ringing. Once they do, there’s usually not much space for thinking of creative solutions. That’s why we map out our escape routes and post them on the wall for all to see.

Continue Reading The Data Breach Response: Who Will You Tell?

By Ryan McConnell & Stephanie Bustamante / R. McConnell Group

When you check your weather app, and it says there is a 30 percent chance of rain, have you ever thought about what that actually means? If it says 80 percent, do you assume it will rain (even though there is a 20 percent chance it will not)? If it says there is a 60 percent chance of rain and you see clear skies, are you disappointed or happy?

Continue Reading Watching Which Way the Wind Blows: You need good forecasting to build good compliance

 

By Daniel Garrie / Law & Forensics LLC

Seeking information from social media accounts is becoming commonplace in litigation. Obtaining social media discovery, however, can pose significant challenges, as this information can take many forms, involve different file types, be generated by different users and be extremely voluminous. To avoid pitfalls, requesting parties should avoid blanket requests and be specific about the social media material they want and need. Likewise, responding parties should fully produce social media data responsive to a request, and fully document redacted or withheld material.

Scott v. United States Postal Service

The case of Scott v. United States Postal Service illustrates the importance of tailoring social media requests. Scott was a personal injury case. To help prove the lack of injury, the defendants moved to compel the production of “all postings related to any type of physical or athletic activities from June 6, 2014, to present on all social media websites, including, but not limited to Facebook, Instagram and Twitter.” The plaintiff objected that this request was “immaterial and not reasonably calculated to lead to the discovery of admissible evidence.” The court found that the information sought was relevant but agreed that the request was overly broad. The court explained, “[A] request for discovery must still be tailored … . Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition … .”

The court found that the primary reason the defendants’ request was overly broad was that it lacked a connection to the relevant injuries for the case. The court distinguished Scott from prior similar cases where production was compelled by stating, “the Request for Production is overly broad to the extent that it seeks all social media postings ‘related to any type of physical or athletic activities from June 6, 2014, to present’ ” as opposed to “postings or photographs that reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.” As shown, when crafting requests, it is important to be specific in describing the information sought and to be sure to connect the requests to the relevant issues in the case.

In turn, parties should be careful to respond completely to requests for social media data. This can be difficult due to the multifaceted nature of social media content, which may contain posts, comments, threads, messages and “statuses” from various locations and contributors. In this regard, parties requesting social media data often assume they can readily receive all the information from a user’s account just as it appears in their browser. This approach is unrealistic. As one commentator has noted, “People tend to expect that elements linked or embedded into content will be included, but those elements are often hosted on completely different web platforms, or its hosting may have expired.”

The complexity of social media data, however, is no excuse for incomplete production, and failing to include relevant material can have serious consequences. D.O.H. v. Lake Central School Corp., for example, illustrates how incomplete production of social media can result in sanctions. In this case, the plaintiff was ordered to produce the following:

“[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS [social networking service] applications for the relevant time period ‘that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.’”

D.O.H. v. Lake Central School Corp.

While there may have been a good case that this request was overly broad, that is what the court included in its order, and the plaintiff was bound to comply with it to the best of his ability. The plaintiff responded by producing “a portion of his Facebook account.” The defendants objected to the production because it failed to include wall comments, causes joined, groups joined, activity streams, messages, photographs, postings and SNS applications, and because the plaintiff failed to produce a privilege log.

Over the next several months, the plaintiff provided multiple supplemental productions, including a production of 1,045 pages of heavily redacted Facebook content and five pages of Twitter content. Defendants objected to the supplemental productions, claiming that the plaintiff “failed to include all relevant information from [plaintiff’s] social networking accounts and to include deleted portions of his social networking accounts.”

The court found that the plaintiff’s productions violated the court’s production order because they failed to include all of the plaintiff’s social networking information and a log for the redacted content. For example, while the plaintiff produced only five pages of Twitter content, the defendants located approximately 56 pages through their own efforts, and listed specific relevant tweets that were missing from the plaintiff’s supplemental productions. Further, the plaintiff never produced a privilege log for the redacted material. For these violations, the court issued sanctions, ordering the plaintiff to supplement the production and pay the defendants’ reasonable attorney fees and expenses from the discovery dispute.

As the Scott and Lake Central cases illustrate, all parties to an action should take social media productions seriously. They should strive to identify relevant social media information with specificity – and to do so early in the case. This will give them the best chance to formulate proper discovery requests, and to properly respond to the ones they receive.

 

Daniel Garrie is an arbitrator, forensic neutral and technical special master at JAMS, available in Los Angeles, New York and Seattle. He is executive managing partner of Law & Forensics LLC, and head of its computer forensics and cybersecurity practice groups, with locations in the United States, India and Brazil. He is also a cybersecurity partner at Zeichner Ellman & Krause LLP. He can be reached at Daniel@lawandforensics.com.

COMPLIMENTARY WEBINAR
Title: IoT and Disparate Data: A Powerful Combination for Labor and Employment Cases
Date: Tuesday, May 16, 2017
Time: 1:00 PM Eastern Daylight Time

REGISTER HERE!

The IoT is here and the real question is no longer will its data affect litigation, but how can I use it in my current cases to provide a positive and meaningful impact to my clients.  Join Dan Regard and Charlie Platt of iDiscovery Solutions while they talk about how they have helped their clients use IoT and Disparate Data to communicate factual data and tell compelling stories. In this webinar, they will guide you through the basics as well as several case studies which leveraged this data to significant effect.

Continue Reading Complimentary Webinar: IoT and Disparate Data: A Powerful Combination for Labor and Employment Cases

By Thomas S. Markey / McNees Wallace & Nurick LLC

Privacy lawsuits, including consumer class actions and data breach cases, often live or die early in litigation when defendants seek dismissal based on plaintiffs’ lack of standing. In federal courts, where many privacy actions are filed, plaintiffs have standing only if they can establish a “personal stake” in the litigation.

In May 2016, the U.S. Supreme Court decided Spokeo, Inc. v. Robins, a decision that attempted to clarify its interpretation of the federal standing doctrine. In the year since Spokeo, however, a split has emerged among federal appellate courts regarding standing in consumer class-action lawsuits. Recent federal court decisions interpreting Spokeo, along with the well-publicized disclosures of data breaches at Yahoo! Inc., offer insight into how companies can strengthen their cybersecurity programs and minimize their exposure to data breach liability. Continue Reading Avoiding Consumer Class Actions after Spokeo: Courts are still struggling with the issue of standing