Our Insights on eDiscovery

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Vote for the Most Significant eDiscovery Case of 2010!
 Vote for the Most Significant eDiscovery Case of 2010! 150 150 CloudNine

Since it’s awards season, we thought we would get into the act from an eDiscovery standpoint. Sure, you have Oscars, Emmys and Grammys – but what about “EDDies”? So, we’re conducting a ‘little experiment’ to see what the readers of eDiscoveryDaily think about case law developments in 2010. This is our first annual “EDDies” award to select the case with the most significant impact on eDiscovery practices in 2010. We have “nominated” five cases, with a link to review more information about each case, and a link at the bottom of this post to cast your vote. Vote now!

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eDiscovery Case Law: When is Attorney-Client Communication NOT Privileged?
 eDiscovery Case Law: When is Attorney-Client Communication NOT Privileged? 150 150 CloudNine

When is Attorney-Client Communication NOT Privileged? One answer: When it’s from your work email account, and your employer has a written policy that company email is not private and subject to audit. Oh, and you’re suing your employer.

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Managing an eDiscovery Contract Review Team: Identify a Project Manager
 Managing an eDiscovery Contract Review Team: Identify a Project Manager 150 150 CloudNine

Yesterday, we talked about applying topic codes to the documents to identify helpful or harmful documents. Today, we will talk about identifying a project manager for the review. A good, experienced project manager is critical to the success of your review project. In fact, the project manager is the most important part of the equation.

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Managing an eDiscovery Contract Review Team: Applying Topic Codes in the Document Review
 Managing an eDiscovery Contract Review Team: Applying Topic Codes in the Document Review 150 150 CloudNine

So far we’ve covered drafting criteria for responsiveness and for privilege. You may, however, be asking the review team to do more than that in the document review. You might, for example, ask them to apply topic codes to the documents or to identify helpful or harmful documents. At this point in the case, you will be better off keeping this very simple. There are several reasons for this.

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eDiscovery Searching: For Defensible Searching, Be a "STARR"
 eDiscovery Searching: For Defensible Searching, Be a "STARR" 150 150 CloudNine

Defensible searching has become a priority in eDiscovery as parties in several cases have experienced significant consequences (including sanctions) for not implementing a defensible search strategy in responding to discovery requests. I have an acronym that I use to reflect the defensible search process. I call it “STARR” – as in “STAR” with an extra “R” or Green Bay Packer football legend Bart Starr (sorry, Bears fans!). For each search that you need to conduct, here’s how it goes.

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eDiscovery Trends: Metadata Mining Ethics
 eDiscovery Trends: Metadata Mining Ethics 150 150 CloudNine

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery. The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues. Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which have focused on three topics with regard to metadata production.

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eDiscovery Case Law: Privilege Waived for Produced Servers
 eDiscovery Case Law: Privilege Waived for Produced Servers 150 150 CloudNine

If you were at the International Legal Technology Association (ILTA) trade show this past August, you may have noticed a huge unfinished building in the middle of the strip – the Fontainebleau Resort. It sits idle after financing was pulled, forcing Fontainebleau Las Vegas LLC to file for Chapter 11 bankruptcy in June of 2009. Naturally, lawsuits followed, between the Term Lenders and Fontainebleau Resort, LLC (FRLLC), the third party parent of Fontainebleau Las Vegas – In re Fontainebleau Las Vegas Contract Litig., (S.D. Fla. Jan 7, 2011).

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Managing an eDiscovery Contract Review Team: Drafting Privileged Criteria
 Managing an eDiscovery Contract Review Team: Drafting Privileged Criteria 150 150 CloudNine

Yesterday, we covered drafting criteria for responsiveness. You may, however, be asking the review team to do more than identify responsive documents. You might, for example, also ask them to identify privileged documents, significant documents, documents that need to be redacted, documents that need to be reviewed by an expert, and so on. In this issue, we’ll talk about reviewing for privilege.

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Managing an eDiscovery Contract Review Team: Drafting Responsive Criteria – a Step-by-Step Guide
 Managing an eDiscovery Contract Review Team: Drafting Responsive Criteria – a Step-by-Step Guide 150 150 CloudNine

The criteria that you prepare for the review will be governed by the objectives that you established for the review. At a minimum, you’ll draft criteria for responsive documents. In addition, you may draft criteria for privileged documents, hot documents, and so on. Let’s start with drafting responsive criteria.

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eDiscovery Best Practices: EDRM Data Set for Great Test Data
 eDiscovery Best Practices: EDRM Data Set for Great Test Data 150 150 CloudNine

In it’s almost six years of existence, the Electronic Discovery Reference Model (EDRM) Project has implemented a number of mechanisms to standardize the practice of eDiscovery. Having worked on the EDRM Metrics project for the past four years, I have seen some of those mechanisms implemented firsthand. One of the most significant recent accomplishments by EDRM is the EDRM Data Set.

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