Our Insights on eDiscovery

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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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eDiscovery Law: Texas Rule 196.4 Protects Parties from "Undue Burden or Cost"
 eDiscovery Law: Texas Rule 196.4 Protects Parties from "Undue Burden or Cost" 150 150 CloudNine

A recent article published in Texas Lawyer and reprinted on Law.com raises the question of extensive and costly eDiscovery requests and how to handle them. The authors of “Keep E-Discovery Costs from Torpedoing Litigation Budgets” present a hypothetical scenario where the opposing counsel has requested production of 10 years of legacy electronic data – a prospect that could cost more in recovery expenses than the value of the entire lawsuit. What is the best approach for counsel to take under the circumstances and what kind of legal recourse is there if producing extensive amounts of electronic information doesn’t make sense? Meet Texas Rule 196.4.

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eDiscovery Trends: Changes in Store for The Sedona Conference
 eDiscovery Trends: Changes in Store for The Sedona Conference 150 150 CloudNine

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), a Arizona-based non-profit, non-partisan law and policy think tank that has made numerous contributions to the industry since it was founded in 1997. Some of the most recent contributions have been documented in this blog, including a commentary on proportionality released last year and database principles released earlier this year. A couple of weeks ago, TSC announced significant changes to their management structure. Those changes are described here.

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eDiscovery Trends: To Get the Latest Trends, Go Virtual
 eDiscovery Trends: To Get the Latest Trends, Go Virtual 150 150 CloudNine

Many of you have likely attended at least one LegalTech trade show at some point. LegalTech New York (LTNY) happens every year in the late January/early February time frame and there is also a LegalTech West Coast (LTWC) show later in the year (this year it was in mid-May). LTNY and LTWC usually have several good sessions, as well as the latest product and service offerings from exhibitors. But, what if you can’t make it to one of these shows? You can still stay abreast of the latest trends — virtually.

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eDiscovery Case Law: Are Attachments Part of the Email Or Are They Separate?
 eDiscovery Case Law: Are Attachments Part of the Email Or Are They Separate? 150 150 CloudNine

A Special Master recently investigated the legal standard concerning whether or not attachments must be produced with the emails to which they were attached in discovery proceedings, and determined that there is no certain answer to be found in case law precedent.

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A Marriage Made for eDiscovery: EDRM and ARMA
 A Marriage Made for eDiscovery: EDRM and ARMA 150 150 CloudNine

As discussed in our recent two-part series on eDiscovery standards, there is a growing movement to develop industry standards, frameworks, or reference models to help manage eDiscovery. This week, there was perhaps a major move in that direction as the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery.

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