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Holler: Much Ado About Discovery

By Mark Wilson, Esq. on September 08, 2014 | Last updated on March 21, 2019

With the Labor Day holiday behind us, it's been a happening week for discovery, both electronic and regular, fraudulent and non-fraudulent.

Here are some of the discovery-related stories that caught our eye in the legal blogosphere last week:

  • Zubulake anniversary. Believe it or not, it's been 10 years since Zubulake v. UBS Warburg taught us that ignoring how a company manages its data retention just doesn't cut it anymore. The ABA Journal has a retrospective on everyone's favorite e-discovery case, including some reminiscing with Laura Zubulake herself.
  • BASF (allegedly) behaving badly? The Wall Street Journal Law Blog discusses the case against BASF and its law firm, Cahill Gordon. The Third Circuit gave the go-ahead to a potential class action brought by plaintiffs who claimed BASF and its lawyers hid or destroyed documents relating to their asbestos injuries, then lied about it.
  • Talk about targeted advertising... Microsoft is bringing its opposition to an order to produce data held in a foreign country to the court of public opinion. The Washington Post's The Switch reports that Microsoft is taking out ads in newspapers in Martha's Vineyard -- where the nation's elite go to summer (and where "summer" is a verb) -- to convince them that Microsoft shouldn't have to hand over foreign-stored data.
  • BYOD brings up privacy concerns. More and more companies have "BYOD" (bring your own device) policies -- that is, gone are the days when the IT Department provides you with a BlackBerry. If you want one, bring your own from home. As Above the Law reported last week, such policies raise both privacy (the company has access to your personal phone data now) and data retention concerns (how can the company ensure that corporate data on an employee's phone gets preserved?).
  • iWatch worries? With the expected launch tomorrow of Apple's vaunted iWatch (or whatever it will be called), David Shaywitz at Forbes asks, "Do Data From Wearables Belong In The Medical Record?" And will data from these wearable things then become discoverable when it's time for a lawsuit?
  • Silk Road secrets. The FBI didn't use sophisticated hacking to figure out where the servers for the underground marketplace Silk Road were located, according to Wired. Agents did it "simply by fiddling with the Silk Road's login page until it leaked its true location." If that's true, then the privacy concerns defendant Ross Ulbricht raised would disappear.

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