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 19th and 20th Centuries for the discovery and production of documents continue to be used today by most attorneys for both ESI and paper discovery.”
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
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
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.”
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.