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Archive for the ‘eDiscovery’ Category

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.

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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.

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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.

Safeguarding Privilege Isn't Easy

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.”

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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.

Can't Un-Waive Privilege

 

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.

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Being in the legal technology field can be frustrating. Technology changes fast but the law moves slowly, deliberately, and often in convoluted ways. You have to somehow stay ahead of the technology curve while waiting for the courts to catch up. It wasn’t until 2006 that federal courts were able to get the basic rules in place regarding the handling of electronic evidence in litigation.

Social media is a particularly frustrating example. Several courts have issued rulings affirming that social media is discoverable in litigation. But for the most part, the case law has been evolving and maturing in spurts and stops. As we’ve noted before, the case law has been clearly evolving to indicate that social media is in fact discoverable in litigation.

No more ignoring social media in eDiscovery.

But there has been a lot of variance between courts in how much social media content is discoverable. Some courts have found only public profiles are discoverable and private messages were immune from disclosure. But for the most part, if parties could demonstrate that social media content is likely to reveal information about a party’s emotional, mental, or physical state that cannot be found through other means, that information is discoverable.

Lawyers Love Lists

The groundbreaking Zubulake case was important because it provided a complete and detailed list of factors to consider when producing email in litigation. In a series of five separate rulings across hundreds of dense pages of balancing tests, U.S. District Judge Shira A. Scheindlin outlined in Zubulake v. UBS Warburg what electronic evidence was discoverable in an otherwise unexceptional employment dispute.

Similarly, in a recent employment dispute, Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)the court has provided lawyers with a detailed list of factors to consider when attempting to acquire social media content for litigation. The broad discovery request in this matter included “photographs, videos, and blogs, as well as Facebook, LinkedIn, and MySpace” content that reveals the defendants “emotion, feeling, or mental state.”

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Nextpoint "Expert Witness" PostNextpoint recently spoke with Steve Wernikoff, attorney with the Federal Trade Commission in Chicago who specializes in consumer protection matters involving e-commerce and emerging technologies. Steve has led numerous investigations and civil prosecutions involving online advertising, spam, mobile marketing, financial fraud, telemarketing, and data privacy and security. He also has served as an adjunct faculty member at two Chicago law schools where he has taught courses involving Internet fraud, online advertising, and privacy issues. Prior to working at the FTC, Steve worked at a Chicago law firm and clerked for two federal court judges.

Nextpoint: The FTC is a relatively small organization with a broad mission and jurisdiction. How does the FTC choose where to deploy resources?

Steve Wernikoff: One major way that the FTC prioritizes its efforts is based on the complaints it receives from consumers. The FTC accepts consumer complaints by telephone and at the FTC’s website, which are then added to the FTC’s Consumer Sentinel complaint database. A number of other state and federal government agencies, as well as some private entities, provide consumer complaints for the Consumer Sentinel. The database allows the FTC staff to identify fraud trends and search for top violators. The Internet poses additional challenges for identifying investigation targets because consumers often do not know the identity of the party that has defrauded them. So the FTC staff also spends a lot of time scouring the Internet, like a consumer would, looking for areas of concern.

What role does technology play in effectively litigating against large, well-funded businesses?US Federal Trade Commission talks Technology

SW: From forensic data acquisition and document management solutions, to courtroom technology and general consulting services, our need for technical litigation support is growing. To support this growing need for eDiscovery tools and services, an FTC litigation support system was created. The system uses advanced tools for litigation support that enable users to acquire, analyze, organize, and present large volumes of digital evidence. Program managers are continuously evaluating new software and hardware to increase efficiency and respond to new technologies used by third parties.

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Lawyers Struggle with Protecting Privilege

When lawyers are managing eDiscovery there are really just three things they need to know for every document– is it responsive, non responsive, or privileged. Responsive they give to opposing counsel, non-responsive they ignore, and privileged documents must be protected. As the U.S. Supreme Court put it, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Yet, somehow, privilege is still one of the most common and devastating failures in litigation.

When lawyers accidentally produce privileged material, their recourse is the Federal Rules of Evidence 502(b). Even if a legal team turns over privileged documents accidentally, they can get the documents back if they can show “the holder of the privilege or protection took reasonable steps to prevent disclosure.” That may seem like a simple standard, but courts have been reluctant to allow parties to claw back even obvious attorney-client work product once it has been produced.

Why Lawyers Fail

The most basic type of failure is when lawyers produce privileged documents and cannot show they made a good faith effort to prevent that production. Most recently, in D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), the court denied the defendants’ motion to recover privileged documents. The producing party had identified privileged documents, and had a plan in place to remove those from their production. Unfortunately, the clerical worker who was asked to remove the privileged documents from the non-privileged documents reviewed less than half of all the data involved. Even worse, no one bothered to check that the clerk had properly done the job.

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