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It might seem difficult to get excited over the state of Florida adopting it’s own rules for managing eDiscovery, effective last month. After all, they’re the 29th state to adopt such rules, and they are closely based on the amendments to the Federal Rules of Civil Procedure adopted at the federal level six years ago.
But the rules adopted in Florida also show that eDiscovery continues to be taken seriously as an ongoing challenge. Even if it it is taking an interminable amount of time for the United States’ judicial system to get these kind of eDiscovery rules in place, it’s nice to see that they continually evolve and mature. According to Law.com, “In all, the new rules demonstrate that the Florida Supreme Court has benefited from the experience of other states, federal courts, and local, knowledgeable practitioners to establish a well-thought-out framework.”
For example, the rules incorporate the principles found in The Sedona Conference Cooperation Proclamation, which encourage cooperation between parties, and even make it an obligation in litigation. Many lawyers and judges have long felt that the discovery process will implode if the process remains adversarial, but they had no way to change things. The Proclamation was once considered an impractical and unrealistic approach to eDiscovery, but enshrinement in state rules could change that. In addition, the new rules codify the proper basis for a court’s evaluation of proportionality and good cause in eDiscovery, providing a clear mechanism for reigning in eDiscovery costs.
We’re more than halfway to getting all states on board with the new rules of eDiscovery. It’s been a long and painful process, but let’s hope that states can continue to be flexible and forward-thinking in adopting these rules. The original amendments to the Federal rules of Civil Procedure were a good start, but they are already in need of updating. Rather than wholesale adoption of the already strained Federal Rules of Civil Procedure, let’s have more thoughtful implementation like this.
As the “The Collapse of the Microsoft-Intel Monopoly” continues to accelerate, the response from the both the broader legal technology profession as well as the eDiscovery chattering classes has been what I can only describe as a collective yawn.
But that’s not completely surprising – after all, the the legal profession is characterized by it’s insistence on staying mired in the same technology swamp. And as such, it’s only today these organizations are getting around to examining their ongoing investment to find a replacement for Windows-reliant applications like Summation or Concordance. These warhorses have not been working for quite a while and are requiring ever increasing expenditures to keep running.
But this analysis is not coming easily. What is an easy call – supporting multiple operating systems and mobile – is being met in many instances by a deep state of denial that extends deeply into the purchasing decisions of large organizations. While we are seeing our users are moving rapidly away from WinTel based laptops and toward a variety of mobile and tablet devices, including Apple products, most of these organizations express little enthusiasm for supporting them.
This, by the way, is the opposite of the trend we see occurring in the small to midsize organizations, who are more nimble and adapting to their users preferences more readily.
So as we talk to law firms looking for a replacement for Concordance or Summation, future-proofing the emerging platforms should be of paramount interest, right?
These should be first questions in a RFP for a replacement Summation or Concordance. “Does your software support users in non-Windows environments? Do you plan on supporting iPads, Android devices, mobile computing platforms and Apple products generally? Can you support any browser besides Internet Explorer, which now controls less than a third of the overall marketshare?”
Legal IT needs to recognize the dislocation, and match it’s buying strategy to the way its users work. It’s not too late to match the needs and motivations of internal litigation support and IT departments with the needs of their users.
It’s time to ditch, in Silicon Valley speak, concerns orthagonal to the needs of their users. Based on this graph, is there any rational response from a law firm IT department other than to immediately cease any further capital or operational investment in technology not designed to support emerging platforms?
It isn’t rational to justify a purchasing decision that ignores 50 percent of the computing devices in the marketplace? It is not possible to develop a business case for spending capital expenditures on software that only works on a WinTel laptop. Yet it continues to happen today – is this state of denial sustainable?
Of course not. It never is. But now is the time to make the change, before falling off this Window/Intel cliff.
Defending privileged documents in eDiscovery is not easy. The right to private communications is vital to the practice of law, but, with the explosion of digital evidence in litigation, lawyers are finding it increasingly hard to protect every single piece of attorney-client work product. Unfortunately, the courts have consistently ruled that even the smallest slip-up or mistake that lets any piece of privileged data go to opposing counsel means your privilege is waived.
Lawyers have to prove that they made every possible effort to prevent privileged information from leaking, but, despite their best efforts, the information somehow got through. Or, to put in judge-speak, “When a producing party claims inadvertent disclosure, it has the burden of proving that the disclosure was truly inadvertent.” Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653, 671 (E.D. Mich. 1995)
We’ve reviewed the most recent and evolving case law on the topic. As with any unsettled area of law, the rulings have been diverse and confusing. But a few common themes are becoming apparent. Here is the most relevant and recent case law on protecting privilege along with the specific advice from the courts on how to avoid a privilege disaster.
Make an Effort
That may be good advice for anything in life, but it is also a specific command the courts have repeatedly delivered in privilege-related matters. Too often, lawyers produce evidence in litigation and, when they find out privileged information was given to opposing counsel, they try to get it back, arguing that the production was an accident.
There is a simple, three part test to determine if a party waives privilege by accidentally producing to opposing counsel. Part one asks whether the production was truly an accident. The second and third parts of the test ask whether or not your team took reasonable efforts to prevent that disclosure from happening and then took steps to fix the problem once identified. That means you have to demonstrate a concerted effort to protect privileged content but, for reasons out of your control, the data wound up in someone else’s hands. For example, the court in Pacific Coast Steel, Inc. v. Leany, No. 2:09-cv-12190-KJD-PAL, 2011 (D. Nev. Sept. 30, 2011) slapped down the plaintiff’s request to return privileged documents because he never made an effort to protect privilege.
The plaintiff in this employment matter tried to remove privileged documents from the evidence acquired by his former employer. However, the judge found that he had the opportunity to remove copies of his computer files, and did not make an effort to remove any of the confidential or privileged information, he “waived any privilege he may have had to privileged or confidential materials he left … by failing to take reasonable means to preserve the confidentiality of the privileged matter.”
Back in January of 2010, we published a post that the legal industry could be in for a technology disruption on the scale of newspapers. The signs abound that a disruption is now underway.
I recently ran across this chart in The Business Insider from famed internet analyst Henry Blodgett that provides vivid detail as to exactly the degree to which traditional newspapers have been dislocated:
The legal industry has already experienced a lot of turmoil in recent years, as a number of law firms, including some former heavyweights, have dissolved. Even worse, the economic model at many law firms remains under intense pressure. The Wall Street Journal notes that a few of the largest law firms in New York have seen profits grow, but for everyone else, the “outlook is grim.” They note that firms that have any money are not investing in new business, but are socking it away in the hopes that a cash reserve will help them survive. Most distressingly, legal industry consultant Kent Zimmerman noted, “law firm expenses are growing faster than revenues during the first half of the year.”
That’s just not sustainable. The journalism industry was actually enjoying record profits and extraordinary growth in the years leading up to the ongoing collapse. But they never adapted to rising costs and the disruption of their business model from the Internet. As noted in the Business Insider article above, the newspaper industry’s peak year was the same year blogging software first appeared. Since then, smaller, more nimble, Internet startups like the Huffington Post have enjoyed explosive growth while traditional players like the Chicago Tribune have had to seek bankruptcy protection.
So the question is, have we already passed the peak law firm revenues? Is it possible that law firms can go through the same type of structural decline in the demand for their services and survive? The traditional law firm partnership model is under pressure from many directions. It’s not hard to imagine Big Law giants might one day be replaced by lean, hungry startup law firms, staffed with refugees from large law firms- much like newspaper veterans who moved to the Internet to start digital dynamos like Politico.
The most important question now is what growth drivers might be on the horizon for the traditional legal services. Are there reasons to believe the legal industry is not going to endure the same kind of upheaval?
In theory, protecting your privileged attorney-client work product should be a straightforward and simple matter. In a new ruling out of Ohio, Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., (S.D. Ohio Aug. 28, 2012), all the defendants had to do was mark documents as confidential, and make sure not to produce them to opposing counsel. Instead, Medex, the producing party, sent about 7,500 documents to the plaintiffs and included 347 documents it had declared to be privileged.
WHOOPS. Unfortunately for them, once privileged documents are produced, it’s almost impossible to get them back. At a deposition, the plaintiffs introduced fourteen documents Medex argued should have been privileged. The defendant Medex panicked, arguing that the documents were “inadvertently produced, privileged communications” and had them sequestered during the deposition. They sought to claw them back, which in theory is a mechanism parties have agreed on to return privileged documents that are produced accidentally. However, in practice, the claw back provision is rarely enforced by the courts.
You Have to Earn Privilege
This case is a labor dispute in Ohio, whose privilege rules are the same as the federal standard. Privilege is an important protection, encouraging lawyers to communicate freely with clients. But since privilege narrows the amount of evidence that is discoverable, courts narrowly interpret the rules and put a heavy burden on the party invoking privilege, especially when they try to claim a document was accidentally produced.