Microsoft Wins Landmark Overseas Warrant Case

The US Court of Appeals for the 2nd Circuit recently ruled on the highly-anticipated ‘Microsoft Ireland’ case.

 

In a unanimous ruling, the three-judge panel found in favour of Microsoft, which was challenging a warrant for the search and seizure of data held on an Irish server.

 

In 2013, the United States District Court for the Southern District of New York issued the US Department of Justice a warrant under the Stored Communications Act (SCA). The Department of Justice believed that an email account hosted by Microsoft contained important information about a narcotics investigation. Microsoft provided relevant information held on US servers, but refused to produce the emails held in Ireland.… Read More

Failure to Preserve Results in Costly Review of Backup Tapes

“This litigation has been exceptional in its breadth, venom and expenses.” ­– Justice Turnbull

 

In Verge Insurance Brokers v. Richard Sherk et al., 2016 ONSC 4007, the defendants brought a motion seeking an order compelling the plaintiff to produce and review 66 backup tapes. The plaintiff objected on the grounds of proportionality and provided evidence that the exercise would cost an estimated $300,000.

 

Justice Turnbull ordered the plaintiff to restore and review the 66 backup tapes, despite the estimated cost of at least $300,000. Turnbull J., recognizing the exceptional cost, also made the point that had the plaintiff complied with an earlier order of the court, and properly preserved the relevant information, the motion would not have been necessary.… Read More

Iterative Review is More Efficient

A new study confirms what proponents of analytical ‘non-linear’ review or Iterative Legal Analysis & Sampling (ILAS) have been saying for some time: that it is more accurate and cheaper than traditional ‘linear’ review.

 

The study was authored by Anne Kershaw, an Adjunct Professor at Columbia University and a practicing e-discovery lawyer. Kershaw had two teams conduct a review of the same set of documents using the same review platform. One team of three contract lawyers followed a traditional ‘eyes on all documents’ approach, while the other team consisted of a single senior lawyer and a technology manager using an ILAS approach.… Read More

E-Discovery and Professional Ethics

There is no doubt that electronic evidence has had an increasing impact on legal services, and the knowledge required to effectively deal with evolving technology.

 

In Ontario, this also has an impact on a lawyer’s duty to clients to perform legal services to the standard of a competent lawyer. In Ontario, under the Law Society of Upper Canada’s Rules of Professional Conduct, ‘standard of a competent lawyer’[1] entails, among other things, recognizing limitations in one’s ability to handle a matter or some aspect of it, and adapting to changing professional requirements, standards, techniques, and practices.

 

Although the Rules of Professional Conduct do not explicitly mention electronic discovery, counsel should nonetheless ensure that their client receives adequate legal advice about electronic discovery.… Read More