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Proportionality in E-Discovery: Tools for Efficiency and Cost Reduction

In our increasingly technological society, parties are encountering a greater demand for electronically stored information (“ESI”) in litigation. This demand has led to the adoption of a concept called proportionality. Proportionality evaluates the costs and benefits of e-discovery, to determine if discovery production is warranted.

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Title Isn’t Everything: Sixth Circuit Taps Jury to Decide Keller’s FLSA Fate

Albeit seemingly self-evident, Keller v. Miri, 781 F.3d 799 (6th Cir. 2015), serves as a renewed caveat that title isn’t everything: merely designating workers as independent contractors is not sufficient to avoid Fair Labor Standards Act obligations.  In this recent Sixth Circuit decision, the Court reversed the district court, finding sufficient and genuine issues of material fact that entitled a jury to decide whether a satellite dish installer qualified for overtime and minimum wage protections under the FLSA. 

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Sixth Circuit Sides With Management in Dispute Over Employee’s Request to Telecommute

In a potentially important decision over workplace accommodations in an environment when telecommuting is more common, the Sixth Circuit ruled on April 10 that an employer does not need to permit an employee to work from home when an essential aspect of the employee’s position requires being in the office. 

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The Value of Cyber Insurance in Managing the Risk of a Data Breach

Cyber insurance
The risk of a data breach now tops the list of concerns of many in-house counsel and C-suite executives. Cyber insurance is an important component in managing this risk and mitigating the damages and loss that follow a data breach.

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Revised Ohio Receivership Statute Brings Clarity for Lenders and Prospective Foreclosure Sale Purchasers

On March 23, 2015, Ohio’s recently enacted amendments to the receivership statute will go into effect, creating certainty and consistency for various existing receivership practices previously developed and used by Ohio courts.  The revised receivership law amends, among other things, certain sections of Ohio Revised Code Chapter 2735 – Receiverships, including sections 2735.01 (Appointment of Receiver), 2735.02 (Qualifications of Receiver) and 2735.04 (Powers of Receiver).

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Yet Another Reason to Read the Fine Print: Allied Industrial Scrap, Inc. v. Omnisource, Corp. (6th Cir. 2015)

Late television curmudgeon Andy Rooney is said to have observed that “nothing in fine print is good news.” Based on a recent decision from the Sixth Circuit, the fine print can be good news for some, and costly for others.

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Legal Alert: NLRB Holds Employees May Use Employer Email Systems for Non-Work-Related Communications

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

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Magistrate Judge Endorses Use of Predictive Coding

In a case featuring a heated pretrial-discovery battle between heavyweights, a U.S. District Court Magistrate Judge in Tennessee recently approved the use of predictive coding in reviewing over two million documents for responsiveness.  

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Rule 502(d) Orders and the Attorney-Client Privilege

In today’s increasingly data-driven world, compliance with discovery requirements can mean production of hundreds of thousands of pages of documents, if not millions. Federal Rule of Evidence 502(d) was enacted to reduce the costs and risks associated with discovery, and to allow a federal court to protect the privilege of documents that have been inadvertently disclosed. Federal Rule of Evidence 502(d) provides that “a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”

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