A Federal District Court Judge inthe Eastern Disctrict of Virginia has ordered the production of otherwise privileged documents because of an inadequately prepared privilege log.

The Plaintiff ‘s motion seeking production stated “hundreds of entries on Lawson’s Fourth Amended Privilege Log remain incomplete and unclear.”  There were 9,706 entries on Lawson’s privilege log.

The Judge ruled privilege is waived and documents must be produced for the following:

• Entries that do not contain author or recipient information.
• Entries that do not identify an attorney in the recipient or author field and are identified as attorney client privileged (those that are cited as attorney work product and are described as being prepared by a specific attorney in anticipation of litigation are not waived).
• The 290 entries that are sent to ten or more non-attorneys. The Judge stated that communications within a corporation are only protected when the communications are made to those who “need to know” the information and Lawson has not met this burden.
• 39 entries where the recipient is listed as an “unidentified distribution list.”

Often privilege log creation is one of those areas where clients would prefer to save money, Judge Payne’s ePlus Inc. v. Lawson Software, Inc., ruling is a reminder that despite the increased amount of relevant electronic data (including privileged documents) it is still usually necessary to prepare a traditional privilege log that meets all applicable minimum requirements. It is possible to use technology to cut down on the time and expense needed in privilege log creation such as auto-populating the bibliographic information and using the title or subject matter to create draft descriptions.

On a separate matter, Lawson also wanted to “claw back” privileged documents it considered inadvertently produced. The Judge ruled the protective agreement only allowed for claw-back of inadvertently produced documents. Here, Lawson intentionally produced the documents in question after conducting various levels of review.

The Order and additional information can be found here

http://www.lexisnexis.com/community/litigationresourcecenter/blogs/e-discovery/archive/2012/03/12/williams-mullen-e-discovery-and-information-governance-team-a-cautionary-tale-for-all-litigators-and-a-must-read-for-virginia-attorneys.aspx

Discovery Reading through 03/25/12

Sharon D. Nelson and John W. Simek writing in Slaw which is Canada’s online legal magazine. on “What’s hot in e-discovery.”

Among the hot trends include:

Machine-Assisted Review: “No one doubts that 2012 will be a break-out year for this technology but we have two serious caveats to pass along. First, it’s very expensive – the point of entry is generally six figures. This is not a small or mid-sized case solution. Typically, it takes the review of several thousand documents to become confident that the computer can code accurately – again, suggesting that this technology will remain in the stratosphere with the major league cases.”

E-Discovery Review for Under $1000: “So what are you supposed to use for review when your cases aren’t mega-cases? We suggest you check out Digital WarRoom by Gallivan, Gallivan and O’Melia. At a price point of $895 for a one-year license, we’ve seen many attorneys who are thrilled with this review platform.”

Preserving Social Media and Website Evidence: “There are a lot of good products to preserve websites and social media evidence, including Iterasi, Hanzo, NextPoint and Reed Technology’s Web Preserver. Web Preserver is very cost-friendly at $35 per seat for 10 GB of data.”

http://www.slaw.ca/2012/03/21/whats-hot-in-e-discovery/

Bob Ambrogi writing on Catalyst Secure search blog on Judge Peck’s Da Silva opinion focusing on whether the Daubert standard applies to predicative coding technology

“But in the course of that opinion, Judge Peck made another significant ruling. He concluded that Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals do not apply to a court’s acceptance of a predictive-coding protocol.”

Because predictive coding is a new and novel technology, they (the Plaintiffs) argued, Judge Peck should have required expert testimony regarding its reliability or appropriateness. They cite Magistrate Judge Paul Grimm’s well-known ruling in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 n.10 (D. Md. 2008), where he said, “[R]esolving contested issues of whether a particular search and information retrieval method was appropriate … involves scientific, technical or specialized information.”

My weekly Litigation Tech and E-Discovery Reading through 03/18/12

Another busy work week but a couple of longer postings caught my attention. The first was some additional follow-up on Judge Peck’s now appealed predictive coding order; the other was a New York Law Journal article on Constitutional self—incrimination protections when to comes to digital evidence.

Judge Peck Provides a Primer on Computer-Assisted Review

By John Tredennick writing on the Catalyst Secure Blog

Mr. Tredennick  recommends reading the decision (and its accompanying predictive-coding protocol) not for its result but for its reasoning. According to Mr. Tredennick “this is one of the best sources I have seen on the reasons for and processes underlying predictive coding. Indeed, Judge Peck provided a primer on how to conduct predictive coding that is must reading for anyone wanting to get up to speed on this process.”  For example:

The court attached the parties’ proposed protocol to the opinion. While it does not represent the only way to do computer-assisted review, it provides a helpful look into how the process works.

1. The process in this case began with attorneys developing an understanding of      the files and identifying a small number that will function as an initial  seed set representative of the categories to be reviewed and coded. There are a number of ways to develop the seed set, including the use of search      tools and other filters, interviews, key custodian review, etc. You can  see more on this subject below.
2. Opposing counsel should be advised of the hit counts and keyword searches used to  develop the seed set and invited to submit their own keywords. They should      also be provided with the resulting seed documents and allowed to review  and comment on the coding done on the seed documents.
3. The seed sets are then used to begin the predictive coding process. Each seed      set (one per issue being reviewed) is used to begin training the software.
4. The software uses each seed set to identify and prioritize all similar documents over the complete corpus under review. Essentially, they review at least 500 of the computer-selected documents to confirm that the computer is properly categorizing the documents. This is a calibration process.
5. Transparency requires that opposing counsel be given a chance to review all non-privileged documents used in the calibration process. If the parties disagree on      tagging, they meet and confer to resolve the dispute.
6. At the conclusion of the training process, the system then identifies relevant documents from the larger set. These documents are reviewed manually for production. In this case, the producing party reserved the right to seek relief should too many documents be identified.
7. Accuracy during the process should be tested and quality controlled by both      judgmental and statistical sampling.
8. Statistical  sampling involves a small set of documents randomly selected from the total files to be tested. That allows the parties to project error rates from the sample.
9. Here,  the parties agreed on a series of issues that will, of necessity, vary on      other cases. The key point is that the parties agree on the issues and      test the coding during the process

http://www.catalystsecure.com/blog/2012/03/judge-peck-provides-a-primer-on-computer-assisted-review/

 When Does the Constitution Protect the Production of Digital Evidence?

Elkan Abramowitz and Barry A. Bohrer  New York Law Journal

The authors provide a overview of a couple of recent Court opinions regarding whether defendants can be required to “unencrypt” their computers so the government can access the protected data. In general, the court’s determine whether “the defendant’s decryption and production of the hard drives would not constitute testimony falling within the ambit of the Fifth Amendment’s privilege of self-incrimination.”

For example, the 11th Circuit observed that the Supreme Court has “marked out two ways in which an act of production is not testimonial.” First, where the government merely compels some physical act and the individual is not called upon to make use of the contents of his mind. Second, where under the “foregone conclusion” doctrine, the act of production conveys only a fact regarding the existence, location, possession, or authenticity of the subpoenaed materials that is already known by the government

The 11th Circuit went on to compare a similar case United States v. Fricosu where a U.S. District Court for the District of Colorado similarly found that where “[t]here is little question…that the government knows of the existence and location of the computer’s files” compelling the defendant to provide access to the computer’s unencrypted contents did not violate the privilege. In so finding, the court relied on a tape-recorded conversation in which the defendant essentially admitted that the information being sought by the government was on her laptop. Distinguishing both cases, the 11th Circuit stated, “Here, in contrast, the [g]overnment does not know whether any files are present on the encrypted drive; if any, what their location on the drive may be; whether Doe has access and control to the encrypted drives; and whether Doe is capable of decryption Accordingly, the foregone conclusion doctrine did not apply and the act of producing a decrypted version of the data in Doe’s case was deemed testimonial for purposes of Fifth Amendment analysis.

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1331105384052&slreturn=1

My Weekly Litigation Tech and E-Discovery Reading through 03/11/12

Perspective on Legal Search and Document Review

Ralph Losey writing in his blog – E-Discovery Team

Overview of transformation in the legal world from one relying on discovery paper documents to a profession trying to get a handle on the new digital world. “For millennium writings were on paper. For centuries the legal profession depended upon writings, referred to in the law as documents, as the key evidence to resolve disputes in a fair and just manner. Paper documents were well-known and mastered by every lawyer and judge who swore an oath to uphold the law.” This all changed in a historical blink of the eye. In just one generation documents have dematerialized and transformed into a dizzying array of digital media.” “The linear systems developed in the 19^th and 20^th Centuries for the discovery and production of documents continue to be used today by most attorneys for both ESI and paper discovery.”

http://e-discoveryteam.com/2012/03/11/perspective-on-legal-search-and-document-review/

Breaking down the E-Discovery Model Order

Barry Shelton writing in Inside Counsel

The Federal Circuit Advisory Council recently promulgated an E-Discovery Model Order for voluntary use by district courts in patent litigation cases. Highlights of the order include:

• A party’s “disproportionate ESI production requests,” and “nonresponsive or dilatory discovery tactics” will militate for cost-shifting against the party.
• Metadata within ESI, or native information about the ESI itself, need not be produced in response to a general ESI production request, absent a showing of good cause. Metadata is seldom useful or relevant, but greatly drives up production expense.I dont really understand this- generally meta data easy to provide for ESI?
• The Model Order greatly limits the scope of email production. Email shall not be produced in response to general ESI production requests, rather upon request for specific email production. Moreover, email production is phased to occur after other fundamental discovery has been completed.
• In addition, only five email search terms may be submitted for each custodian, with the court considering requests for up to five other terms. The terms must be “narrowly tailored to particular issues.”Understand the reason would be to limit the amount of ESI but well crafted and tested search terms and phrases should not only limit amount of potential responsive ESI and more importantly return a higher percentage of responsive documents.
• The Model Order provides that “the receiving party shall not use ESI that the producing party asserts is attorney-client privileged or work product protected to challenge the privilege or protection.”
• Furthermore, the Order specifies that pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged and/or protected ESI would not be a waiver in that case or any other federal or state proceeding. Finally, the Order states that “the mere production of ESI in a litigation as part of a mass production shall not itself constitute a waiver for any purpose

http://www.insidecounsel.com/2012/03/09/technology-breaking-down-the-e-discovery-model-ord?ref=hp

Judge Peck’s Predictive Coding Opinion – Reporting the Reaction

Chris Dale from the E-Disclosure Information Project

Article summarizes and provides links to some of the commentary which has appeared already regarding Judge peck’s now famous predictive coding order

http://chrisdale.wordpress.com/2012/03/07/judge-pecks-predictive-coding-opinion-reporting-the-reaction/

Policy vs. Privacy: Striking the Right Balance Between Organization Interests and Employee Privacy

Philip Favro writing in Clearwell’s Blog

“The lines between professional and personal lives are being further blurred every day. With the proliferation of smart phones, the growth of the virtual workplace and the demands of business extending into all hours of the day, employees now routinely mix business with pleasure by commingling such matters on their work and personal devices. This trend is sure to increase, particularly with “bring your own device” policies now finding their way into companies. This sometimes awkward marriage of personal and professional issues raises the critical question of how organizations can respect the privacy rights of their employees while also protecting their trade secrets and other confidential/proprietary information. The ability to properly navigate these murky waters under the broader umbrella of information governance may be the difference between a successful business and a litigation-riddled enterprise.”

http://www.clearwellsystems.com/e-discovery-blog/2012/03/09/policy-vs-privacy-striking-the-right-balance-between-organization-interests-and-employee-privacy-information-governance/

Bridging the Gap Between Lawyers and Social Media Managers (and Why You Should Care)

Alison Monahan is the founder of The Girl’s Guide to Law School,

“If you’ve ever tried to launch, well, pretty much anything creative or novel in a company, you’ve probably encountered the most dreaded phase around: “Sounds good, we’ll just have to run it by Legal.” Overview of how to present use of social media to “legal” and anticipate their concerns . I would add this could also apply to company management. Personally I need to get up to speed on the details of the FTC rules on blogger endorsements and probably the legal requirements of a sweepstakes vs. a contest.

http://www.triplepundit.com/2012/03/lawyers-social-media-managers/comment-page-1/