Our Insights on eDiscovery

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eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins!
 eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins! 150 150 CloudNine

The eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest in the industry and this blog, with recent posts to relate developments in the case associated with inadvertent production of 3,900 privileged documents. Sometimes, the “shoe is on the other foot”, so to speak.

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eDiscovery Case Law: Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime
 eDiscovery Case Law: Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime 150 150 CloudNine

A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine. In United States v. Briggs, the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

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eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth
 eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth 150 150 CloudNine

Despite the recent economic recession resulting in “crashing” corporate profitability, eDiscovery is still growing as an industry, according to a Market Research Report now available from IBISWorld. This is happening while the number of participants in the industry has declined as the industry has continued to consolidate. Details inside.

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eDiscovery Trends: Sedona Conference Provides Guidance for Judges
 eDiscovery Trends: Sedona Conference Provides Guidance for Judges 150 150 CloudNine

Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.

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eDiscovery Case Law: Court Rules Against Exclusion of Privileged Email
 eDiscovery Case Law: Court Rules Against Exclusion of Privileged Email 150 150 CloudNine

A District of Columbia court has ruled against exclusion of a privileged email that was inadvertently produced by the defendant, ruling that the defendant’s actions before and after the discovery of the email’s production pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) were not sufficient to ensure protections under Federal Rule of Exclusion (FRE) 502(b)(3), in a case involving alleged violations of the District of Columbia Whistleblower Act.

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eDiscovery Law: Federal Rule of Evidence 502 Protects Against Accidental Waiver of Privilege
 eDiscovery Law: Federal Rule of Evidence 502 Protects Against Accidental Waiver of Privilege 150 150 CloudNine

As noted yesterday, attorneys have reason to be worried about accidental waiver of privilege in today’s cases, where discovery of electronic documents reaches unprecedented volumes. With more electronically stored information (ESI) comes an increased risk of accidentally producing privileged information. Fortunately, there are provisions that can prevent some of the damage of such accidents. Yesterday, we discussed “clawback” provisions and “quick peek” agreements. Today, we discuss the protections that Federal Rule of Evidence 502 provide.

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eDiscovery Law: Inadvertent Production is Inevitable, So How Do You Protect Yourself?
 eDiscovery Law: Inadvertent Production is Inevitable, So How Do You Protect Yourself? 150 150 CloudNine

With exploding volumes of electronically stored information (ESI) being required in discovery proceedings, there is more chance than ever of inadvertently producing materials that should have been protected by privilege. No case exemplifies that better than the current eDiscovery malpractice case involving McDermott, Will & Emery discussed in this blog where McDermott’s former client, J-M Manufacturing, has contended that 3,900 privileged documents were erroneously produced. It is virtually impossible these days to keep every item from production that is protected by attorney-client or work product privilege. Fortunately, there are protections against a claim of privilege waiver through inadvertent production.

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eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?
 eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI? 150 150 CloudNine

Email has historically been the most common form of requested electronically stored information (ESI), but that has changed, according to a survey performed by Symantec and reported in Law Technology News. According to the article, Symantec’s survey, conducted this past June and July, included lawyers and technologists at 2,000 enterprises worldwide. Regarding how frequently (percentage of situations requested) various types of ESI are requested during legal and regulatory processes, the survey yielded some surprising answers.

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Our First Birthday! eDiscovery Daily is One Year Old Today!
 Our First Birthday! eDiscovery Daily is One Year Old Today! 150 150 CloudNine

Break out the birthday cake and the noisemakers! eDiscovery Daily is now a year old! One year ago today, we launched this blog with the ambitious goal of providing eDiscovery news and analysis every business day. And, we haven’t missed a day yet! Knock on wood! For those of you who have not been following eDiscovery Daily all year, here are some topics and posts you may have missed. Feel free to check them out!

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eDiscovery Case Update: J-M Manufacturing Tries to Clawback Privileged Documents at Issue in McDermott Malpractice Case
 eDiscovery Case Update: J-M Manufacturing Tries to Clawback Privileged Documents at Issue in McDermott Malpractice Case 150 150 CloudNine

One of the most talked about cases from an eDiscovery perspective this year is the case against McDermott Will & Emery for alleged malpractice in the disclosure of privileged documents. McDermott’s former client, J-M Manufacturing, has contended that 3,900 privileged documents were erroneously produced as part of 250,000 J-M electronic records that were reviewed under McDermott’s supervision. Now, J-M has filed a motion seeking clawback of 3,400 privileged documents it contends that McDermott wrongfully produced, claiming the US government and, then, their opponents in the case, received the documents erroneously from McDermott.

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