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.

Employment Alert: New Jersey Supreme Court Finds Privacy Rights in Employee E-Mails

Employment Alert: New Jersey Supreme Court Finds Privacy Rights in Employee E-Mails.

Earlier this year in the Quon case, we learned that if you’re sending personal messages via your company-issued PDA or cell phone, you do not have any right to privacy. It’s their phone. Interestingly,  this case from March 2010 (decided prior to Quon) held that

…an employee had a legitimate expectation of privacy in e-mail communications that she sent to her attorney through her personal web-based e-mail account using her employer’s laptop computer. The decision in Stengart results from an employer’s failure to provide adequate warning to its employees in an electronic communications policy that personal e-mails may be recovered—and read—if they are sent through the employer’s electronic system. Stengart teaches the importance of providing employees with clear notice that their privacy rights are limited in the workplace.

Another reference to a discussion about this case can be found here. The “fine print” and learning point is that if employers have a clearly defined policy regarding privacy rights in the workplace, then those rights can be limited.

A Search Term Turkey « Bow Tie Law’s Blog

Lawyers who are new to electronic discovery may assume things are “impossible.” Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive.

Consulting with a third-party expert, or even performing a Google search, may prove the “impossible” is actually a common practice in many situations.

This case likely would have saved time and money if the parties could have agreed on the key custodians, had a third-party preserve the data and then had an index which could be searched based on agreed upon keywords within the same sentence. This could likely would have cost less than the protracted litigation, meet and confer conferences and a motion to compel battle.

via A Search Term Turkey « Bow Tie Law’s Blog.

Failure to Test Keywords by Sampling a Prominent Consideration in Court’s Finding of Waiver : Electronic Discovery Law

Keyword searching is a task which requires using technology. As a best practice you should make sure you allow enough time in your project management plan to test and perform quality control measures on your search results. You must have a methodology in place to which you apply the technology you have available. Not the other way around.

What happens when you rely too heavily on the technology?

Here‘s the case summary

Here‘s an overview of what happened

Key learning points include:

  • discussion of the importance of planned workflow
  • discussion of the importance of quality control as a part of your workflow
  • application of FRE 502(b)(3) and FRCP 26(b)(5)(B)

Podcasts – Keyword Searching

Podcasts – Law Technology News.

Law Technology Now with Monica Bay & Craig Ball discussing the 2008 Victor Stanley Inc. v Creative Pipe Inc. case which had a huge impact on ESI searching trends.  This case is often referred to in the ongoing discussion on searching.

Update: This morning (July 28, 2010), I attended a CLE program in Atlanta where the panel discussed (among other things) how simply performing a keyword search is no longer considered “reasonable effortwhen demonstrating to the court that you did everything you possibly could to avoid producing privilege information or mismanaging your case in general.

What is “reasonable effort” as it applies to e-discovery? Ralph Losey covered this on his blog here and here.

e-Discovery Case Law Update – Summer 2010 Part II | Fios, Inc.

e-Discovery Case Law Update – Summer 2010 Part II | Fios, Inc..

Vendor sponsored educational webinar highlighting current trends, issues and cases in e-discovery including:

  • Sanctions
  • Social Networking
  • Collection
  • Text Messaging

(registration for the Aug. 4th event is required. Fios usually offers their webinars on-demand for those who miss the event so don’t worry if miss this one… you can always watch it later.)

Citing its Inherent Authority to Sanction, Court Grants Motion for Sanctions Against Non-Party : E-Discovery Law Review

Citing its Inherent Authority to Sanction, Court Grants Motion for Sanctions Against Non-Party : E-Discovery Law Review.

This case summary discusses an extreme scenario where a non-party was sanctioned for discovery misconduct. The lesson here for all of your non-extreme scenarios is that you’ll need to have adequate documentation of your ESI collection methodologies to prove to the court where your data came from…

If you have the documentation available, then you and your case team will be able to anticipate the risks involved in your e-discovery project.