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How Google Was Tripped up by a Bad Search | PCWorld Business Center

October 28, 2011 By Leave a Comment

In the end it was a search that let Google down.

The company suffered a setback in its patent dispute with Oracle last week when a U.S. judge denied Google’s request to keep an internal Google email out of the case record. The email, written by a Google engineer, could suggest to a jury that Google knew it needed a license to use Sun’s — now Oracle’s — Java technology in Android.

Ironically, considering this is Google, organizer of the world’s information, the email might never have seen the light of day if the search tools used to identify documents covered by attorney-client privilege had done their job, legal experts said.

The incident also shines a light on an area of technology — electronic discovery — that’s creating big challenges for lawyers as more communication moves online. And it helps explain why Hewlett-Packard is willing to spend US$10 billion to buy Autonomy, one of the biggest providers of e-discovery software and services.

The Google incident apparently stems from a mistake by one of the top law firms it hired to fight Oracle’s lawsuit, which accuses Google of patent and copyright infringement in Android. It’s a high-stakes case that could potentially cost Google billions of dollars in damages, and force it to start charging handset makers a license fee for Android.

Like many corporate lawsuits, this one began with a discovery phase. Each party is required to identify all the emails, chat logs and other documents relevant to the case, and produce them for the opposing legal team. Because there are often millions of documents involved, they use software tools to define date ranges, search for keywords and find the material they have to produce.

Communications discussing legal advice with attorneys are protected by attorney-client privilege, meaning they don’t have to be made public. Google argued that its potentially incriminating email fell into this category.

It was written by Google engineer Tim Lindholm last August, a few weeks before Oracle filed suit against Google. At the time, Oracle had threatened to sue Google for billions of dollars, and Lindholm was instructed by Google executives to see what alternatives to Java existed for use in Android, apparently to strengthen their negotiating position.

via How Google Was Tripped up by a Bad Search | PCWorld Business Center.

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E-discovery: Ascending to the cloud creates negligible e-discovery risk

July 11, 2011 By Leave a Comment

Cloud computing platforms (a set of pooled computing resources that are powered by software and delivered over the Web) have been generating quite a bit of press in the last year. Indeed, in just recently computing giant Microsoft launched its Microsoft 365 cloud computing platform, designed to rival Google’s “mega-cloud” platform, which launched in May 2010. Since the release of the first commercial cloud computing platform by Amazon in 2006, cost-conscious companies have been racing to evaluate the pros and cons of moving their computing operations to “the cloud.” According to the Booz, Allen, Hamilton technology consulting firm, “Cloud computing may yield:

  • Life cycle costs that are 65 percent lower than current architectures
  • Benefit-cost ratios ranging from 5.7 to nearly 25
  • Payback on investments in three to four years

Notably absent from that cost-benefit analysis, however, is the effect cloud computing may have on the costs and risks associated with conducting electronic discovery. Those engaged in such activities may well ask the question, “Will the savings companies expect from moving their data to the cloud be absorbed by the additional costs/risks created by conducting e-discovery in the cloud?”

The short answer is no. Although there are risks associated with conducting e-discovery from the cloud, they are remote, manageable and eclipsed by the savings companies should expect from cloud computing. Some of the riskiest aspects of conducting e-discovery in the cloud are:

  • The loss/alteration of data and associated metadata
  • The potential violation of international data privacy laws by illegally disclosing data in the jurisdiction in which the cloud is located
  • The unintentional waiver of the attorney-client privilege by co-mingling data or disclosing attorney client communications to third parties
  • The failure to properly and timely implement and monitor litigation holds

via E-discovery: Ascending to the cloud creates negligible e-discovery risk.

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The Potential Perils of Cross-Border Internal Investigations | Law.com

June 17, 2011 By Leave a Comment

With the U.S. Department of Justice campaigning against companies that pay off government officials abroad, and the UK Bribery Act (often referred to as the “Foreign Corrupt Practices Act [FCPA] on steroids”) about to go into effect next month, it is a tricky time for corporations that do business internationally.

Wallace Dietz, co-chair of the Internal Investigations and Government Enforcement Group of Nashville, Tennessee-based Bass, Berry & Sims, has led inquiries for a number of Fortune 500 companies. After participating in a June 15 panel discussion held in New York City by the International Law Office, he sat down with reporter Jan Wolfe to talk about the challenges lawyers face overseeing probes that span borders and multiple legal systems. An edited version of their conversation follows.

CorpCounsel: What advice would you give attorneys managing their first cross-border investigation?

Wallace Dietz: The first thing to do when you have an investigation outside the U.S. is figure out the very basic, fundamental ground rules. Otherwise you could make significant mistakes. That’s true in terms of attorney-client privilege. And it’s true in terms of collecting evidence and data, especially with certain privacy and data protection laws. Certain things that you assume in the U.S. about how to conduct an investigation simply are not true when you get into a foreign country.

via The Potential Perils of Cross-Border Internal Investigations.

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NYC Bar Warns of Ethics Traps in Litigation Financing – News – ABA Journal

June 16, 2011 By Leave a Comment

The New York City Bar Association is warning lawyers about possible ethics problems when their clients finance litigation through third-party lenders.

Loans can be a valuable way to finance a legal claim, but lawyers need to be aware of the pitfalls, the ethics opinion says. The New York Law Journal covered the opinion and interviewed the chair of the city bar’s ethics committee, Seth Schwartz, who said the review was undertaken because of a “flood of coverage in the press.”

The opinion addresses nonrecourse litigation financing in which the loan is repaid by a litigant only if he or she settles or wins the case. Such loans are made most often in personal injury cases and typically require the litigant to pay the company a percentage of the recovery. Some critics have charged the percentages are usurious, and the available money encourages litigation, the ethics opinion points out.

From a legal ethics perspective, the opinion says, the greatest concern is that some companies seek confidential information about a case when evaluating whether to finance it. A lawyer should not disclose privileged information to a financing company unless he or she first obtains informed consent, the opinion says. The opinion also notes a risk that disclosing confidential information will waive the attorney-client privilege, but it does not take a position on the issue.

via NYC Bar Warns of Ethics Traps in Litigation Financing – News – ABA Journal.

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One Privileged E-Mail in a Chain Does Not Protect All, Judge Rules | Law.com

June 6, 2011 By Leave a Comment

An entire e-mail chain cannot be withheld during e-discovery on the grounds that it contains a single e-mail with privileged information, a Long Island federal magistrate judge has ruled. The ruling came during discovery in BenefitVision Inc. v. Gentiva Health Services Inc., 2:09-cv-00473, an $800,000 contract dispute between benefits consultant BenefitVision and Gentiva, one of its clients.

Eastern District Magistrate Judge A. Kathleen Tomlinson ruled on May 23 that Gentiva could not withhold e-mail chains from production as protected by attorney-client privilege unless the entire chain was privileged. “If an intermediary e-mail in the chain is not subject to work-product or attorney-client privilege, it cannot be withheld from production,” she ruled. “If there are e-mail chains in which Defendants claim privilege over only parts of the e-mail chain, those allegedly privileged e-mails must be redacted and all nonprivileged portions must be produced.”

via One Privileged E-Mail in a Chain Does Not Protect All, Judge Rules.

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One Privileged E-Mail in a Chain Does Not Protect All, Judge Rules | Law.com

June 6, 2011 By Leave a Comment

An entire e-mail chain cannot be withheld during e-discovery on the grounds that it contains a single e-mail with privileged information, a Long Island federal magistrate judge has ruled. The ruling came during discovery in BenefitVision Inc. v. Gentiva Health Services Inc., 2:09-cv-00473, an $800,000 contract dispute between benefits consultant BenefitVision and Gentiva, one of its clients.

Eastern District Magistrate Judge A. Kathleen Tomlinson ruled on May 23 that Gentiva could not withhold e-mail chains from production as protected by attorney-client privilege unless the entire chain was privileged. “If an intermediary e-mail in the chain is not subject to work-product or attorney-client privilege, it cannot be withheld from production,” she ruled. “If there are e-mail chains in which Defendants claim privilege over only parts of the e-mail chain, those allegedly privileged e-mails must be redacted and all nonprivileged portions must be produced.”

via One Privileged E-Mail in a Chain Does Not Protect All, Judge Rules.

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Plaintiff Wins Bid to Bar Hard Drive From Discovery | NY Law Journal

January 7, 2011 By Leave a Comment

A state judge has ruled that the maker and distributor of surgical equipment cannot copy the hard drive of a Long Island man’s personal computer to determine if the man and his now-deceased wife reviewed the company’s website prior to the use of their product in her fatal back surgery.

In denying the discovery request, Supreme Court Justice Karen V. Murphy in Nassau County pointed to potential violations of attorney-client privilege and questioned if the requested material was “material and necessary.”

“[T]he risks associated with the proposed fishing expedition are many, including but not limited to, the likely violation of the right to the confidentiality of attorney-client communications,” Justice Murphy (See Profile) wrote in DeRiggi v. Kirschen, 20753-2008.

Jason DeRiggi is the widower of 30-year-old Patricia DeRiggi, who died during a July 2008 out-patient procedure for lower back pain. He is seeking unspecified damages for medical malpractice, products liability and wrongful death against the doctors, their practices and the equipment’s manufacturer and distributor.

Mr. DeRiggi has accused HydroCision Inc., and New York Spinal Implants Corp. of negligent design, manufacture and distribution as well as failure to warn of the risks associated with the “Spine Jet HydroDiscectomy System” used in his wife’s procedure. HydroCision is the manufacturer. Spinal Implants is the distributor.

A discectomy is the surgical removal of a herniated disk. According to the HydroCision website, its spine jet systems “harness the power of water to cleanly remove tissue without the risk of thermal energy.”

via Plaintiff Wins Bid to Bar Hard Drive From Discovery.

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Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All” : Electronic Discovery Law

October 6, 2010 By Leave a Comment

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

Defense counsel sent an email to opposing counsel with a cc to his co-counsel and a bcc to his client.  When responding, defendant used the “reply all” function, thus sending the clearly privileged communication to opposing counsel as well as his own.  Upon realizing his client’s error, defense counsel demanded that opposing counsel delete the email.  Opposing counsel refused.  Thereafter, defense counsel took no further action until the email appeared as an exhibit to an opposition to summary judgment.

Defendant sought to strike the email.  Taking up the issue, the court noted that the issue of inadvertent disclosure in electronic discovery had “received considerable attention” and identified an emerging consensus in law in that context that “a client does not lose the benefit of the attorney-client privilege for an otherwise privileged communication through inadvertent disclosure if the client proves that he and his counsel took reasonable steps to preserve the confidentiality of that particular communication.”  In the present case, the court found the same standard applicable.

via Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All” : Electronic Discovery Law.

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EU’s Top Court Rules That Privilege Doesn’t Apply

September 15, 2010 By Leave a Comment

In-house counsel in Europe and the U.S. are fuming after a top European court ruled that full attorney-client privilege does not apply to European in-house lawyers in antitrust investigations, according to Bloomberg and the U.K. publication Legal Week.

The case at issue concerned a 2003 investigation by the European Commission, the European Union’s antitrust authority, into alleged anti-competitive behavior at the U.K. offices of the Dutch chemicals company Akzo Nobel. Investigators raided the company’s offices in Manchester and seized lots of documents, including communications from Akzo’s in-house legal team the company claimed should be protected by attorney-client privilege, according to Bloomberg, Legal Week and this useful overview of the case from the Washington, D.C.-based Association of Corporate Counsel. The commission disagreed, saying the privilege did not apply to the in-house lawyers, since they were Akzo employees and thus part of the larger company rather than independent counsel.

via EU’s Top Court Rules That Privilege Doesn’t Apply.

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