Our Insights on eDiscovery

Read on to learn more about the latest trends and insights in the world of digital discovery.
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eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off
 eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off 150 150 CloudNine

Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. 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.

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eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency
 eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency 150 150 CloudNine

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. 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.

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eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards 150 150 CloudNine

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 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.

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eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore
 eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore 150 150 CloudNine

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. The ethical responsibilities of counsel these days includes competently directing and managing eDiscovery.”

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eDiscovery Trends: Think Before You Hit Send
 eDiscovery Trends: Think Before You Hit Send 150 150 CloudNine

It’s not the only instance of a one character typo possibly ending a career; instead, it may simply be the latest. Unless you’re living under a rock, you’re probably aware of the “Twittergate” story involving Rep. Anthony Weiner (D-N.Y.), where he initially claimed that a lewd photo posted via Twitter was posted by a hacker to his account, then subsequently admitted this past Monday that he, in fact, posted that picture. Many are calling for him to resign from his Congressional position. The irony is that a one-letter typo may turn out to be his undoing.

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eDiscovery Trends: The Best SaaS Providers are Certifiable
 eDiscovery Trends: The Best SaaS Providers are Certifiable 150 150 CloudNine

The increasing popularity of cloud-based Software-as-a-Service (SaaS) solutions is becoming well documented, with this very blog noting Forrester and Gartner predictions of tremendous growth in cloud computing over the next several years. We’ve also noted the importance of knowing where your data is stored, as many online poker players learned the hard way when the recent US government crackdown of several gambling sites left them without a way to recover their funds. If only there were some sort of certification, administered by an impartial third party, to ensure that your SaaS provider has implemented policies and processes that keep your information secure, stable and safe. There is such a certification.

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Working Successfully with eDiscovery and Litigation Support Service Providers: Keeping a Preferred Vendor Program Up to Date, Part 2
 Working Successfully with eDiscovery and Litigation Support Service Providers: Keeping a Preferred Vendor Program Up to Date, Part 2 150 150 CloudNine

Last week, we began talking about keeping a preferred vendor program up to date, and we covered establishing criteria to evaluate vendors after every project. Here are the remaining steps in establishing a mechanism for keeping your preferred vendor program fresh and up to date.

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Social Tech eDiscovery: Use of Smarsh for Social Media Archiving
 Social Tech eDiscovery: Use of Smarsh for Social Media Archiving 150 150 CloudNine

The online world thrives on social media, but for attorneys who must preserve sensitive social media data for discovery, the widespread growth of social technology presents a laundry list of problems. Fortunately, there are viable solutions that enable you to create a backup of all social networking activity and archive such information in the event it has to be produced in discovery. Here’s one.

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eDiscovery Case Law: Completing Production AFTER Trial is Too Late
 eDiscovery Case Law: Completing Production AFTER Trial is Too Late 150 150 CloudNine

In DL v. District of Columbia, repeated, flagrant, and unrepentant failures of the District of Columbia to comply with discovery orders, failure to supplement discovery responses, and eventual production of thousands of e-mails—some more than two years old—after the date of trial resulted in a sanction of waiver of privilege over documents sought by plaintiffs.

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eDiscovery Trends: Email Footers Give Privilege Searches the Boot
 eDiscovery Trends: Email Footers Give Privilege Searches the Boot 150 150 CloudNine

Many organizations add email disclaimers to their emails for legal protection to attempt to protect themselves from legal threats such as breach of confidentiality or accidental breach of privilege. However, when it comes time to collect and search email collections for confidentiality and privilege, these email footers can wreak havoc with those searches. Searches for the words “confidential” or “privileged” will essentially be rendered useless as they will literally retrieve every email with the email disclaimer footer in it. So, what to do?

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