2012: Time Flies When You’re Having Fun

I love that I can always count on starting the new year with a review of old news. 🙂  Everyone writes a “what happened last year” blog post and as an e-discovery trainer, it’s a fantastic way for me to summarize important points, events, lessons learned and cases from each year.

 

Here’s my list of favorites for 2012:

 

The Georgetown Advanced eDiscovery Institute

The Advanced eDiscovery Institute

A continuing education program by Georgetown Law School

This year the program was held December 6 & 7

The agenda and roster of speakers can be found here.

This conference is considered one of the most highly regarded e-discovery learning events of the year.  Learn something new about e-discovery today by reviewing the blogs and articles below:

Exterro’s E-Discovery Beat Blog live blogged notes from the conference

Other notes & blogs summarizing the learning experience

EDPM: Managing Expectations

The tools are not as important as the process. Technology can only take your project so far as seen in Thorncreek Apartments III, LLC v. Village of Park Forest.

Village mistakenly uploaded 159 privileged documents for Thorncreek as part of the production, which included every document marked as privileged, as it expected Kroll’s software to automatically withhold privileged documents.

The emphasis on the word EXPECTED is mine. Technology does not run on its own… it needs people. Technology needs project managers who understand what the technology can and can not and/or should and should not do. Technology and project managers both need project stakeholders (i.e. attorneys & paralegals/ clients) who will take the time to listen and understand that we must work together to effectively plan for quality control and then take the time to actually do the quality checks before productions.  However, as noted in the quote below from a law firm’s blog, e-discovery project management is a TEAM effort and a single person probably should not have been expected to do everything themselves.

In analyzing whether Village waived its claim of privilege with respect to six inadvertently produced documents, the Court noted that simply marking documents as “responsive,” “non-responsive” and “privileged” falls “well short of what we would expect for an adequate account of the review procedure.” Village argued that its efforts to protect against waiver were reasonable because it believed that by marking the documents as “privileged’ in Kroll’s online platform, they would be automatically withheld. However, the Court found that Village employed only a single attorney to review the documents to be produced and Village failed to review the documents uploaded for Thorncreek to view for nine months. Finally, the Court cited the lack of a privilege log in finding that Village did not act reasonably to protect its claim of privilege. In doing so, the court held that Village waived privilege to the six documents.

Here are a few other online resources that discuss what went wrong with this case…remember: The tools are not as important as the process.  It’s not that there is anything wrong with online review … the issue here is that the project management methodology was lacking the step for quality control and understanding of the technology (tools) being used.

Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver : Electronic Discovery Law.

Don’t blame your vendor.

This article offers some practical tips for managing expectations:

  1. communicate clearly with vendors, don’t “assume” that documents marked “privileged” will be withheld from the production – tell the vendor to withhold them (even if the vendor is an experienced litigation support vendor);
  2. produce a privilege log early on and deliver it to the opposing counsel – if a document on the privilege log is in the production set, and opposing counsel discovers that, s/he will be obligated to inform you;
  3. better yet, use your privilege log to spot-check the vendor to assure that documents marked “privileged” are, in fact, withheld from the production;
  4. even if you are in the throes of a busy deposition schedule, when you learn of an inadvertent disclosure, act quickly to identify the scope of the problem and request the return of privileged documents.

e-Discovery Origins: Zubulake | e-Lessons Learned

e-Lessons Learned is a great blog for following case law updates in the e-discovery world. As they point out below, anyone getting started in understanding why we do what we in e-discovery should learn about the Zubulake case.

 

Welcome to our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about Zubulake, the series of court opinions that helped form the foundation for e-discovery. e-Discovery Origins: Zubulake takes each Zubulake decision and distills its key elements into what has become our trademark – simple, witty, easy to understand e-Lessons.

e-Discovery Origins: Zubulake also takes a behind-the-scenes look at those who have most influenced the e-discovery movement and offers insight into their contributions. As one leading e-discovery guru put it, “if you are a novice to e-discovery case law this is a must read.”

via e-Discovery Origins: Zubulake | e-Lessons Learned.

BC Law Intellectual Property & Technology Forum & Journal – Avoid the Rainy Day: Survey of U.S. Cloud Computing Caselaw

Cloud computing, a computer networking model that gives users on-demand access to shared software applications and data storage, [1] is becoming increasingly popular among businesses and individuals. For example, if you use Google’s Gmail[2] for your email and calendaring, or Snapfish[3] for your online photo sharing and storage; or if your business remotely stores data with a third-party server provider like Salesforce,[4] or uses Windows Azure[5] to create and host web applications and services, you are already “floating in a cloud.” To provide guidance to those companies working within a cloud – *2 or those considering utilizing cloud computing – this article surveys U.S. cases that have direct, substantive implications for cloud users. These cases implicate issues of personal jurisdiction, privacy rights, e-discovery, and copyright infringement.[6] We also take a brief look at the newest case on the cloud computing horizon, Google v. The United States.[7]

via BC Law Intellectual Property & Technology Forum & Journal – Avoid the Rainy Day: Survey of U.S. Cloud Computing Caselaw.

Avoiding E-Discovery Heartburn (Michigan Bar Journal)

pdf4article1813.pdf (application/pdf Object).

It is possible to reduce ESI anxiety by effectively managing
electronic discovery: being proactive in defi ning the scope, understanding
preservation obligations and protections, and taking
reasonable steps calculated to protect potentially relevant information
(PRI).

Parties to a case
in a Michigan state court can (and should) proactively discuss
key ESI questions:
Will ESI come into play t • o a signifi cant degree?
• What ESI will be preserved?
• How will ESI be searched and what date, divisional,
organization, and geographic limitations will apply?
• How will ESI be produced?
• What, if anything, will be necessary to authenticate
ESI for trial?

How you start your case will determine how it ends

article5.pdf (application/pdf Object).

 

Jonathan D. Frieden and Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, XVII Rich. J.L. & Tech. 5 (2011), http://jolt.richmond.edu/v17i2/article5.pdf.

…considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.1

 

This paper drives home the point that how you start your case will determine how it ends.

E-Discovery Today: The Fault Lies Not In Our Rules . . .

hausfeld.pdf (application/pdf Object).

THE FEDERAL COURTS LAW REVIEW
Volume 4, Issue 2
2011
E-Discovery Today:
The Fault Lies Not In Our Rules . . .
Milberg LLP and Hausfeld LLP*
TABLE OF CONTENTS
I. INTRODUCTION ……………………………………………………………………….. 2
II. STATE OF THE UNION ………………………………………………………………. 6
A. The Reality of Electronic Discovery and the Data Deluge ……… 6
B. The Essential Role of Discovery in American Jurisprudence: Valuing Fair Resolution on the Merits Over Gamesmanship …………………………………………………………………. 7
C. The 2006 Amendments to the Federal Rules Were Designed to Address the Unique Issues Raised by Electronic Discovery ……………………………………………………….. 11
III. THE CURRENT FEDERAL RULES ARE WORKING ………………………… 14
A. Although The Amended Rules Have Been in Effect for Only Three Years, the Available Evidence Shows the Rules Are Working ………………………………………………………………….. 14
B. The Current Rules Protect Against Overbroad or Overly Burdensome E-Discovery: The Importance of Proportionality ………………… 20
C. There Has Been a Quantum Leap in the Development of E-Discovery Law Since the 2006 Amendments ………………….. 23
D. Use of Pretrial Conferences and Scheduling Orders is
* This paper was written by Milberg LLP and Hausfeld LLP for presentation to the Conference on Civil Litigation sponsored by the Advisory Committee on Civil Rules, held at Duke University Law School on May 10 and 11, 2010 (the “Duke Conference”).

Attorney-Client Privilege and ESI

2011dltr001.pdf (application/pdf Object).

THE ATTORNEY-CLIENT PRIVILEGE
AND DISCOVERY OF ELECTRONICALLY STORED
INFORMATION

ABSTRACT
The attorney-client privilege is the most sacred and important
privilege in our legal system. Despite being at the center of daily
practice, the privilege still remains a mystery for many lawyers.
This is primarily because the privilege is not absolute, and there
are certain actions or non-actions that may waive it.
The application of the privilege is further complicated by
electronic discovery, which has both benefits and drawbacks. On
one hand, it has made the practice of law more efficient. On the
other hand, it has made it easier to inadvertently waive the
attorney-client privilege in response to a discovery request. This
iBrief examines attorney-client privilege issues that may arise
during e-discovery, and provides practical guidelines for attorneys
responding to e-discovery requests.