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A lawyer must be a technologist, especially in the e-discovery industry | The Posse List

September 20, 2010 By Leave a Comment

As we have stated numerous times in our ediscovery/data management “thought leaders” series (click here)  we face a tsunami of data.  For a good discussion of how this all evolved read our interview with the “Master Sensai E-Discovery Gurus” Ralph Losey and Jason R. Baron (click here)  and see their brilliant presentation Did You Know which you can access on YouTube (click here).

Yes, the amount of data is staggering.  As a further recent example, an August survey conducted by Symantec revealed that just backup tapes alone are storing documents on indefinite hold in enterprise libraries that would stretch to the moon and back 13 times with enough left over to circle the globe seven times (for the Symantec survey click here)    And according to the study storing all this data makes it harder to find what you’re looking for. It is now 1,500 times more expensive to review data than it is to store it, Symantec estimates. Backup windows, meanwhile, are so overloaded that weekend backups are taking more than a single weekend these days.

So, with the accelerating increase in electronically stored information along with the changes in the Federal Rules of Civil Procedure and the courts (Federal and state) tsunami of decisions, how do you control and manage the data?  Technology.  As a result, lawyers must become technologists.

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.

via A lawyer must be a technologist, especially in the e-discovery industry | The Posse List.

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OLP Offers Online E-Discovery Course

June 3, 2010 By Leave a Comment

The Organization of Legal Professionals (OLP) in conjunction with the Center for Advanced Legal Studies will launch the first-ever online interactive e-discovery course for legal professionals, eDiscovery@work.

This will be a comprehensive series of three eight-week online interactive sessions designed to teach e-discovery from start to finish. The first course in the series will begin on Monday, July 19.

This training is specifically tailored to facilitate learning requirements at three separate levels of experience. The first is E-Discovery 101A: Fundamentals of E-Discovery; the second is E-Discovery, The Next Level; and the final section, E-Discovery for Non-Legal Professionals, is designed to instruct technology professionals transitioning into the legal e-discovery field.

The topics in each series of classes includes Federal Rules of Civil Procedure; EDRM; preserving accessible and inaccessible electroni-cally stored information; duty to preserve; litigation holds; where to find metadata; the Sedona Principles; cloud computing; collection strategies; inadvertent disclosure; discovery and Daubert depositions under Rule 30; and ethical considerations and early case assessments.

via OLP Offers Online E-Discovery Course.

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Mechanisms That Help Reduce the Cost of E-Discovery | NJ Law Journal

May 19, 2010 By Leave a Comment

No matter how vigilant, there is no way to fully insulate yourself from a potential lawsuit. It should come as no surprise that defending a lawsuit, even one where you are ultimately not liable, can be costly. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With all of the unavoidable expenses associated with litigation, in these economic times it is necessary to implement mechanisms that help curtail the cost of litigation, especially with regard to electronic discovery.

RELEVANT COURT RULES REGARDING E-DISCOVERY

Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the “court rules”) require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).

In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term “documents” has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).

Although not formally defined in either set of the court rules, in practice it is understood that ESI includes information “created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” Kenneth J. Withers, Northwestern Journal of Technology and Intellectual Property, Vol.4 (2), 171, 173. Although the most commonly requested form of ESI is e-mail, the court rules require production of electronic data in formats other than e-mail.

The court rules have attempted to provide some limitations to the production requirements of electronic discovery, presumably in an effort to achieve fairness and balance. For example, in the context of a federal case, “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Federal Rules 26(b)(2)(B). However, even with limitations, the production of ESI can be very expensive and onerous.

via Mechanisms That Help Reduce the Cost of E-Discovery.

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When E-Discovery Is Used as a Weapon | The Recorder

May 11, 2010 By Leave a Comment

The attorney-client privilege is perhaps the oldest of the privileges for confidential communications known to common law. But the privilege is not available to a client who seeks legal advice to commit an ongoing or future crime or fraud. To prevent those abuses, courts have fashioned a limited exception to the privilege known as the crime-fraud exception.

Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.

The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company’s representative to determine the failures or weaknesses in the company’s preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee’s record-keeping habits. Faced with a broad-ranging document request, an attorney’s task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.

Attorneys opposing this sort of motion to compel then face the difficult task of proving that all relevant documents were in fact preserved and produced, while at the same time ensuring the judge understands the company's technology infrastructure. Notwithstanding an attorney's reasonable and good faith effort to preserve and produce relevant documents, sources of potentially relevant data will inevitably go undiscovered. Or, the scope of preservation will be inadequate. If the opposing counsel obtains a sanctions order, it will characterize the discovery-related conduct as a “fraud,” and seek to pierce the attorney-client privilege by invoking the crime-fraud exception.

via When E-Discovery Is Used as a Weapon.

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District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations : Electronic Discovery Law

January 29, 2010 By Leave a Comment

Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2009 WL 5218035 (M.D. Fla. Aug. 3, 2009);  Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D. Fla. Jan. 5, 2010)

Following her finding that “[Bray & Gillespie], through counsel, acted willfully and in bad faith in violation of the Federal Rules of Civil Procedure and this court’s orders” by failing to make reasonable efforts to search for and produce documents in response to court orders and by making repeated misrepresentations to the court, among other things, the Magistrate Judge recommended that the plaintiff’s claims be stricken and that the case be dismissed with prejudice.  (For additional details of plaintiff’s discovery abuses, click here to be taken to a summary of a prior opinion in this case.)  On review of that recommendation, the District Court Judge found total dismissal of all the plaintiff’s claims “an excessive remedy” and instead ordered the dismissal of all claims for damages arising from the alleged interruption of business at the Treasure Island Property and for the plaintiff to pay $75,000 to the defendant for expenses incurred in pursuit of its motion for sanctions.

In its opinion, the District Court acknowledged the egregious nature of plaintiff’s and plaintiff’s counsel’s many discovery failings.  Despite these many violations, however, the court found the sanction of total dismissal of all claims “excessive” and chose instead to dismiss only the claims related to the Treasure Island Property, the property for which the late discovered evidence was relevant.  Declining to adopt the Magistrate’s recommendation, the District Court found the defendant’s contention that the plaintiff’s failure to produce the Treasure Island evidence prevented the defendant from interviewing persons who could describe the condition of the Resort “unpersuasive” where the defendant admitted that certain relevant individuals had been “available to Defendant since the inception of litigation” and had not been interviewed.  Also, the defendant’s appraisers had access to the relevant property throughout the relevant time period and took photos of the property to support the defendant’s case.  The court also noted that the plaintiff’s conduct “has only related to the production of folios for the Treasure Island Property” and that “[t]o speculate without any evidentiary support that Plaintiff’s conduct in this area undermines the integrity of all discovery provided in the case is not appropriate.”

via District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations : Electronic Discovery Law.

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