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Category Archive for: Evidence

Even With Clawback Agreement, Use of Material May Waive Privilege

Even with a clawback agreement, protection of attorney-client privilege may be waived if information is used without objection.

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Attorneys’ Duty to Implement Legal Hold Does Not End After Hitting Send

A lawyer's duty to prevent evidence destruction does not end when they hit send on a legal hold email. Both in-house counsel and outside counsel are responsible for overseeing the implementation of and compliance with legal holds.

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New Hearsay Rule Addresses “Ancient” ESI and Electronic Evidence

Responding to proliferation of electronic evidence, changes to evidence rules will limit the "ancient documents" hearsay exception to pre-1998 documents.

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New Rule Permits Self Authentication of Electronic Evidence

Changes to Federal Evidence Rule 902 effective December 1 allow "self authentication" of certain electronic evidence and electronically stored information.

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Is it OK to Redact Irrelevant Information in Document Discovery?

Generally, irrelevant information may not be redacted from documents produced in litigation unless it is protected from disclosure under another rule.

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Does Parent Company Have Duty to Ensure Subsidiary Preserves Documents?

Some courts hold that parent companies with sufficient control over subsidiaries may have duty to ensure preservation of subsidiary's documents and ESI.

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Raise Spoliation Before Summary Judgment (or Forever Hold Your Peace)

If evidence spoliation is suspected, it might be best to bring it to the court's attention before responding to a summary judgment motion.

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A Privilege to Serve? Attorney-Client Privilege, In-House Counsel & Whistleblowing

A conflict is brewing between state and federal courts involving in-house counsel, whistleblowers and the use of attorney-client privileged information.

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Do Email Messages Have to Be Produced With Attachments in Litigation?

There is no hard and fast rule. But, there are a few legal arguments to support producing email messages with attachments.

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Are Employees Required to Disclose Passwords or Encryption Keys During Government Investigations?

Employees could be compelled to provide passwords to corporate data sought by a government investigation, but the Fifth Amendment might apply.

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