Craig Ball is a very close friend. Also, in the area of electronically stored information (“ESI”) and litigation, he is as good an expert as you can find, in the world. His critique of the President’s lawyers reminds us that blindly copying forms will not serve our clients. Preservation Letter to Controversial Author Craig’s “Ball […]Read more "Preservation Letters Require More than Just Copying a Form"
In Texas, when the law requires a contract to be in writing, electronic communications can satisfy that requirement, but only if each party agrees to conduct the transaction electronically. Even when neither party explicitly says that it has agreed to conduct transactions by electronic means, the context and surrounding circumstances can show that that the […]Read more "You Can Agree to Make a Contract Electronically Without Explicitly Saying So"
At least in the state of New York, the law where the courtroom sits determines the scope or existence of any privilege. Companies should not assume that courts in other locations will respect the privilege rules of their home state. They must also consider the privilege rules in locations where they may face litigation, rules […]Read more "Location of the Courtroom Determines Privilege Rules"
Baylor University was concerned that it was not in full compliance with federal law relating to complaints of sexual harassment and violence. Baylor also expected litigation. Baylor’s Board of Regents hired the Pepper Hamilton law firm to investigate Baylor’s procedures, policies and other “institutional response” aspects of Baylor’s compliance obligations. Baylor and Pepper Hamilton agreed […]Read more "Baylor Case: Public Statements Can Waive Privilege"
By issuing In Re: State Farm, the Texas Supreme Court gave lawyers a manual for handling discovery disputes in Texas courts. The opinion lists seven factors for balancing the requesting party’s need for discovery with the responding party’s claim of burden and cost. The factors are: Likely benefit of requested discovery; Needs of the case; […]Read more "Texas Supreme Court Opinion is a Manual for Handling Discovery Disputes"
A duty to use reasonable efforts to preserve potentially relevant information, including electronic data, arises when litigation has commenced or is reasonably anticipated. Today, mobile devices often contain unique, relevant data. Moreover, due to available technology, preserving mobile data is now generally easy and relatively inexpensive. Quite simply, the combination of unique, relevant data with […]Read more "A Duty to Preserve Mobile Data – YES!"
In August 2016, a jury convicted Pacific Gas & Electric (“PG&E”) of five counts of record keeping violations, and one count of obstructing an agency investigation. The judge has now sentenced PG&E, assessing the maximum fine of $3 million and setting some severe probation terms. Complying with those terms will more than double the economic […]Read more "Probation Terms Increase the Pain to Convicted PG&E"