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eDiscoveryDaily

eDiscovery Trends: The Challenges of International eDiscovery
 

Litigation would be simpler if business never crossed international boundaries, but it often does. Global corporations have dozens of offices and thousands of employees scattered around the world, while smaller businesses may outsource call center work or manufacturing to China, India, or other countries that offer inexpensive labor.

As a result, eDiscovery can be complicated by international laws and the regulations regarding discovery across national borders, as well as the usual questions that affect legal discovery within the United States. Even if US courts have jurisdiction over entities from other countries and the Federal Rules of Civil Procedure apply to discovery requests, there are still several issues and challenges associated with international eDiscovery, including:

  • Location of Data: Thanks to the widespread use of cloud computing and other types of online storage, the physical location of ESI sought in eDiscovery is not always easy to pinpoint. Information transmitted electronically in an email or text message, can pass through any number of phone lines and routers, to many servers and client machines around the globe, so determining the location of a message can become virtually impossible. As a result, it can be difficult to know which nation's laws on eDiscovery should be applied, much less how to execute them.
  • Expense: Due to the complexity of requesting eDiscovery through foreign channels, and under the legal restrictions imposed by foreign governments, the cost of tracking information across international borders is much higher than eDiscovery conducted solely within the US.
  • International Law: Every nation has its own laws and regulations surrounding electronic data and discovery practices, so it's important to understand legislation in the relevant countries and, when appropriate, take measures to contact the proper authorities before moving forward. Discovery practices that are common and legal in the US can be considered criminal in some other countries, so it’s critical to have foreknowledge of the laws and rules you'll be facing.
  • Cultural Issues: Along with variations in international law comes the difficulty of rationalizing the need for eDiscovery to foreign countries who may have different views on privacy. In a country where pretrial discovery is not the norm, the request for eDiscovery may be a strange and unwelcome concept that can often result in misunderstandings and non-compliance. Explaining American laws and customs becomes a vital role of any attorney seeking international eDiscovery.

In future posts, we will be discussing international eDiscovery issues in more depth, including the Hague Convention, privacy protection laws, blocking statutes and other challenges to eDiscovery abroad.

So, what do you think? Have you experienced these same issues, or are there other challenges you've faced in international eDiscovery? Please share any comments you might have, or let us know if you'd like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: You Have to Be Certifiable to Work in eDiscovery
 

In any industry, it becomes important to be able to gauge the knowledge and capabilities of your service provider.  As we noted recently with regard to cloud-based Software-as-a-Service (SaaS) providers, certification builds a client's trust and confidence in the service provider.  While no industry standard certification has emerged for eDiscovery professionals – yet – some independent certification programs are in various stages of implementation to measure proficiency with eDiscovery best practices.

One program that is already in place today to verify eDiscovery competency is the Association of Certified E-Discovery Specialists® (ACEDS™), which is a relatively new organization that is gaining popularity as a member organization of eDiscovery professionals and a certification program with the Certified E-Discovery Specialist (CEDS) certification.  Last week, I spoke with Charles Intriago, President and Gregory Calpakis, Executive Director about ACEDS, how the program has evolved to this point and where it’s headed.

The group that founded ACEDS (The Intriago Group) is not new to certification programs, having previously established the Association of Certified Anti-Money Laundering Specialists (ACAMS), which, according to Intriago, has become the “world standard” certification for private and public sector professionals (including the FBI, FDIC, OCC, and IRS) for detection and prevention of money laundering.

Development of the certification program was a laborious eight month process than began last year.  Highlights of that process include:

  • Psychometric Development: ACEDS used Kryterion, an organization dedicated to construction and validation of knowledge measurement tests, to develop the certification test.  Experts in constructing exams, Kryterion uses psychometrics to create exams that are fair and unambiguous to truly measure the knowledge and ability of the test taker.
  • Expert Involvement: Twelve experts throughout the country identified over 78 eDiscovery-related job tasks.
  • Initial Survey: From this information, a 272 question survey was sent out to thousands of people for information gathering purposes, with more than 430 responses to the survey received, which defined the frequency, relevance and importance of those tasks.  Based on the responses, statisticians ranked the tasks by occupation and importance to the eDiscovery process.
  • Question Development: ACEDS then gathered some forty experts to draft four-choice, multiple choice scenario-based questions for the exam.  222 initial questions were drafted.
  • Expert Refinement of Questions: Every question, or “item,” was then reviewed by a panel of at least six experts in a series of conference calls from August to October of last year.
  • Beta Testing: The initial version of the exam was launched on November 1 of last year, with more than 50 people taking the test in one of many Kryterion test centers.  A scientific analysis was then performed of the test results to determine how each question performed and confirm that each test question was fair, clear and unambiguous.
  • End Result: The current version of the exam was finalized in mid-March of this year and is 145 questions and must be completed in four hours.  So far, more than 100 people have taken it, with approximately 75% of them passing the test and receiving the certification.

The certification exam is focused on job tasks and practical job challenges, not changing case law, which Intriago, who is a lawyer and previously a partner at a large international law firm, federal prosecutor and Congressional subcommittee chief counsel, noted applies only to the districts where the cases are decided, in the absence of a Supreme Court ruling.  When you sign up for the exam, you receive a CEDS exam preparation manual, which covers the considerable range of eDiscovery topics covered in the exam.  Benefits of certification include private and public sector employer confidence in the competence of their employees, improved job and increased salary prospects, increased credibility, chance for reduced malpractice premiums, potential promotion to new positions, as well as a potential raise in billing rates.

The price of the exam and CEDS exam preparation manual is $995 ($795 if you’re an ACEDS member – membership can range from $150 to $195 for general and government memberships).

ACEDS is committed to keeping the certification program up to date and boasts a 16 member advisory board that includes a former president of the American Bar Association, former chief justice of the Supreme Court of Florida, and key decision makers from major law firms and corporations.  The ACEDS site also has independent reporting in the News & Analysis section of the site, including this article referenced by eDiscovery Daily just last week.

For more information, go to aceds.org.

So, what do you think?  Is eDiscovery certification important to you?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: More On the Recommind Patent Controversy
 

Perhaps the most controversial story discussed in the eDiscovery community in quite some time is the controversy regarding the patent recently announced by Recommind for Predictive Coding via press release entitled, Recommind Patents Predictive Coding, issued on June 8.  I haven’t seen this much backlash against a company or individual since last summer when LeBron James’ decision to leave the Cleveland Cavaliers for the Miami Heat (and the subsequent championship-like celebration that he and his teammates conducted before the season).  How did that turn out?  😉

Since that announcement, there have been several articles and blog posts about it, including:

  • This one, from Monica Bay of Law Technology News, asking the question: “Is Recommind Blowing Smoke?”  where discussed the buzz over Recommind’s announcement;
  • This one, from Evan Koblentz (also of Law Technology News), entitled “Recommend Intends to Flex Predictive Coding Muscles” which includes responses from Catalyst and Valora Technologies;
  • This one, also from Evan Koblentz, a blog post from EDD Update, where Recommind General Counsel and Vice President Craig Carpenter acknowledges that Recommind failed to obtain a trademark for the term Predictive Coding (though Recommind is still using the ™ symbol on the term Predictive Coding onthis page);
  • Three blog posts in four days from Sharon D. Nelson of Ride the Lightning blog, which debate the enforceability of the patent and include a response from OrcaTec, noting that Recommind’s implied threat of litigation is “nothing more than an attempt to bully the market place”.

There are several other articles and blog posts regarding the topic, but if I listed them all, I’d have no room left for anything new!  Sorry that I couldn’t include them all.

I reached out to Bill Dimm, founder of Hot Neuron LLC, makers of Clustify, which clusters documents in groups for effective, expedited review and asked him his thoughts about the Recommind press release and patent.  Here are his comments:

"Recommind's press release would have been accurately titled 'Recommind Patents a Method for Predictive Coding,' but it went with the much more provocative title 'Recommind Patents Predictive Coding,' implying  that its patent covers every conceivable way of doing predictive coding.  The only way I can see that being accurate is if you DEFINE predictive coding to be exactly the procedure outlined in claim 1 of Recommind's patent.  Of course, 'predictive coding' is a relatively new term, so the definition is up for debate.  The patent itself says:

'Predictive coding refers to the capability to use a small set of coded documents (or partially coded documents) to predict document coding of a corpus.' That sure sounds like it allows for a lot of possibilities beyond the procedure in claim 1 of the patent.  The press release goes on to say: 'ONLY [emphasis is mine] Recommind's patented, iterative, computer-assisted approach can 'bend the cost curve' of document review.'  Really?  So, Recommind has the ONLY product in the industry that works?  A few of us disagree.  Even clustering, which Recommind claims does not qualify as predictive coding will bend the cost curve because the efficiency boost it provides increases with the size of the document set.

Moving on from the press release to the patent itself, I would recommend reading claim 1 if you are interested in such things.  It is the most general method that the USPTO allowed Recommind to claim –  the other claims are all dependent claims that describe more specific embodiments of claim 1, presumably so that Recommind would have a leg left to stand on if prior art was found to invalidate claim 1.  Claim 1 describes a procedure for predictive coding that involves quite a few steps.  It is my understanding (I am NOT a lawyer) that the patent is irrelevant for any predictive coding procedure that does not include every single one of the steps listed in claim 1.  Since claim 1 includes things like identification cycles, rolling loads, and random sampling, it seems unlikely that existing products would accidentally infringe on the patent.

As far as Clustify is concerned, Recommind's patent is irrelevant since our procedure for predictive coding is different.  In fact, I explained in a presentation at a recent conference why random sampling is a very inefficient approach (something that has been known for decades in other fields), so I wouldn't even be tempted to follow Recommind's procedure."

So, what do you think?  Will the Recommind predictive coding patent allow them to rule predictive coding?  Or only their specific approach?  Will LeBron James ever win a championship?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: Hot Neuron is a partner of Trial Solutions, which has used their product, Clustify, in various client projects.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier
 

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares.  The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues.  Here’s a summary recap, with my ‘two cents’ on each item:

10. Less is more: The U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case that a “retention” policy is actually a destruction policy.  It’s important to routinely dispose of old data that is no longer needed to have less data subject to discovery and just as important to know where that data resides.  My two cents: A data map is a great way to keep track of where the data resides.

9. Sing Kumbaya: They may speak different languages, but you need to find a way to bridge the communication gap between Legal and IT to develop an effective litigation-preparedness program.  My two cents: Require cross-training so that each department can understand the terms and concepts important to the other.  And, don’t forget the records management folks!

8. Preserve or Perish: Assign the litigation hold protocol to one key person, either a lawyer or a C-level executive to decide when a litigation hold must be issued.  Ensure an adequate process and memorialize steps taken – and not taken.  My two cents: Memorialize is underlined because an organization that has a defined process and the documentation to back it up is much more likely to be given leeway in the courts than a company that doesn’t document its decisions.

7. Build the Three-Legged Stool: A successful eDiscovery approach involves knowledgeable people, great technology, and up-to-date written protocols.  My two cents: Up-to-date written protocols are the first thing to slide when people get busy – don’t let it happen.

6. Preserve, Protect, Defend: Your techs need the knowledge to avoid altering metadata, maintain chain-of-custody information and limit access to a working copy for processing and review.  My two cents: A good review platform will assist greatly in all three areas.

5. Natives Need Not Make You Restless: Consider exchanging files to be produced in their original/”native” formats to avoid huge out-of-pocket costs of converting thousands of files to image format.  My two cents: Be sure to address how redactions will be handled as some parties prefer to image those while others prefer to agree to alter the natives to obscure that information.

4. Get M.A.D.?  Then Get Even: Apply the Mutually Assured Destruction (M.A.D.) principle to agree with the other side to take off the table costly volumes of data, such as digital voicemails and back-up data created down the road.  My two cents: That’s assuming, of course, you have the same levels of data.  If one party has a lot more data than the other party, there may be no incentive for that party to agree to concessions.

3. Cooperate to Cull Aggressively and to Preserve Clawback Rights: Setting expectations regarding culling efforts and reaching a clawback agreement with opposing counsel enables each side to cull more aggressively to reduce eDiscovery costs.  My two cents: Some parties will agree on search terms up front while others will feel that gives away case strategy, so the level of cooperation may vary from case to case.

2. QA/QC: Employ Quality Assurance (QA) tests throughout review to ensure a high accuracy rate, then perform Quality Control (QC) testing before the data goes out the door, building time in the schedule for that QC testing.  Also, consider involving a search-methodology expert.  My two cents: I cannot stress that last point enough – the ability to illustrate how you got from the large collection set to the smaller production set will be imperative to responding to any objections you may encounter to the produced set.

1. Never Drop Your Laptop Bag and Run: Dig in, learn as much as you can and start building repeatable, efficient approaches.  My two cents: It’s the duty of your attorneys and providers to demonstrate competency in eDiscovery best practices.  How will you know whether they have or not unless you develop that competency yourself?

So, what do you think?  Are there other ways for CEOs to avoid eDiscovery nightmares?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off
 

Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule.  It provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

Let’s face it, every time we turn on our computers, we overwrite data.  And, the mere opening of files (without changing any data) can change the metadata of a file – for example, simply opening a Microsoft Access® database changes the last modified date of the Access file, even if no records are changed.  If there wasn’t some measure of “safe harbor” protection, an organization facing litigation might find it very difficult to conduct business during the case.

While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.  In this case, the defendant failed to suspend auto-delete on its email system when their preservation obligation commenced, resulting in emails only being available on back-up tapes.  Their argument that the tapes were “not reasonably accessible” was denied by the court, describing their request as “chutzpah”.

Of course, email, like any other type of ESI, should be subject to document retention and destruction policies and old emails should be purged when they reach the end of the retention period.  Microsoft Outlook® provides an option via its Auto Archive function to delete the emails instead of archiving them.  You can select this setting for all emails (via the Tools, Options menu, Other tab) or for selected folders (by right-clicking on them, selecting Properties and then selecting the AutoArchive tab).  That’s at the client level.

But, most organizations use Outlook through Exchange.  Exchange Manager enables administrators to set auto delete policies for the email user population to manage retention and destruction of emails, thus being able to disable  the auto delete function for users when the duty to preserve arises.  If your organization uses auto-delete, it’s important to have a policy in place for disabling auto-delete for litigation, whether at the Outlook client level, the Exchange level or with any other email system.

So, what do you think?  Does your organization use auto-deletion of emails?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency
 

Insanity is doing the same thing over and over again and expecting a different result.  But, in ESI review, it can be even worse when you get a different result.

One of the biggest challenges when reviewing ESI is identifying duplicates so that your reviewers aren’t reviewing the same files again and again.  Not only does that drive up costs unnecessarily, but it could lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

Of course, there are a number of ways to identify duplicates.  Exact duplicates (that contain the exact same content in the same file format) can be identified through hash values, which are a digital fingerprint of the content of the file.  MD5 and SHA-1 are the most popular hashing algorithms, which can identify exact duplicates of a file, so that they can be removed from the review population.  Since many of the same emails are emailed to multiple parties and the same files are stored on different drives, deduplication through hashing can save considerable review costs.

Sometimes, files are not exact duplicates but contain the same (or almost the same) information.  One example is a Word document published to an Adobe PDF file – the content is the same, but the file format is different, so the hash value will be different.  Near-deduplication can be used to identify files where most or all of the content matches so they can be verified as duplicates and eliminated from review.

Then, there is message thread analysis.  Of course, most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion.  To review each email in the discussion thread would result in much of the same information being reviewed over and over again.  Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.  That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about lunch plans or did you see American Idol last night).

FirstPass®, powered by Venio FPR™, is one example of an application that provides a mechanism for message thread analysis of Outlook emails that pulls the entire thread into one conversation for review as one big “tree”.  The “tree” representation gives you the ability to see all of the conversations within the discussion and focus your review on the last emails in each conversation to see what is said without having to review each email.  Side conversations are “branches” of the tree and FirstPass enables you to tag individual messages, specific branches or the entire tree as responsive, non-responsive, privileged or some other designation.  Also, because of the way that Outlook tracks emails in the thread, FirstPass identifies messages that are missing from the collection with a red X, enabling you to investigate and determine if additional collection is needed and avoiding potential spoliation claims.

With message thread analysis, you can minimize review of duplicative information within emails, saving time and cost and ensuring consistency in the review.

So, what do you think?  Does your review tool support message thread analysis?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 

Normally, eDiscovery Daily reports on cases related to eDiscovery issues after the decision has been rendered.  In this case, the mere filing of the lawsuit is significant.

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain.  An interesting article from Robert Hilson at the Association of Certified eDiscovery Professionals® (ACEDS™) discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  A copy of the article is located here.

J-M Manufacturing Co., Inc., a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. After the case was filed in January 2006, it remained under seal for nearly three years.  According to the complaint, during that time, a large-scale document review ensued (160 custodians) and McDermott hired Stratify, an outside vendor, to cull through the ESI.

J-M retained Sheppard Mullin Richter & Hampton to replace McDermott in March 2010.  Why?  According to the complaint, McDermott worked directly with the Assistant US Attorney to develop a keyword list for identifying responsive ESI, but, despite this effort, the first production set was returned by the government after they found many privileged documents. The complaint indicates that McDermott and its contract lawyers then produced a second data set again with a large number of privileged documents even though it was filtered through a second keyword list.

J-M contends in the complaint that McDermott's attorneys “performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”  After Sheppard replaced McDermott on the case, they asked for the privileged documents to be returned, but the “relator” refused, saying that McDermott had already done two privilege reviews before giving those documents to the government and, therefore, J-M had waived the attorney-client privilege. In the complaint, J-M contends that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.  It is unclear from the complaint whether McDermott provided the contract reviewers themselves or used an outside provider.  It will be interesting to see how this case proceeds.

So, what do you think?  Have you experienced inadvertent disclosures of privilege documents in a case?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore
 

A few months ago at LegalTech New York, I conducted a thought leader interview with Tom O’Connor of Gulf Coast Legal Technology Center, who didn’t exactly mince words when talking about the trend for attorneys to “finally tak[e] technology seriously”.  As he noted, “lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data.  Get a life, get a grip.  Use the tools that are out there that have been given to you for years.” 

Strong words, indeed.  The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter.  Specifically, Model Rule 1.1 states that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

Preparation not only means understanding a specific area of the law (for example, antitrust or patent law, both highly specialized.).  It also means having the technical knowledge and skills necessary to serve the client in the area of discovery.

The ethical responsibilities of counsel these days includes competently directing and managing the identification, preservation, collection, processing, analysis, review and production of electronically stored information (ESI) required to be produced pursuant to lawful discovery requests.  If counsel does not have that level of competency in a particular area, he or she is obligated to either acquire the knowledge or skill necessary to support those needs, or include someone else who does have the requisite skills as part of the representation.

Not too long ago, I met with an attorney and discussed how they handled preservation obligations with their clients.  The attorney indicated that he expected his clients to self-manage their own preservation and collection.  When I asked him why he didn’t try to get more involved to make sure it was being handled properly, he said, “I don’t want to alarm them.  They might decide they need a bigger firm.”

Recent case law is full of cases where counsel didn’t fully understand their eDiscovery obligations, and got themselves and their clients “burned” in the process.  If your organization gets involved in litigation, make sure to include eDiscovery competence among the factors you consider when determining counsel qualifications to represent you.

So, what do you think?  Is your counsel eDiscovery savvy?  If not, do they use a provider that is?  Please share any comments you might have or if you’d like to know more about a particular topic.