Post Process

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Archive for December, 2007

It was slow in coming, but IT is now speeding its way through the legal world

Posted by rjbiii on December 31, 2007

At least, that is the thesis of an article from the business technology section of Boston.com:

Technology was late to come to the world of lawyers and law firms, long known for quill pens and steno pads. But now that it has arrived, it is spreading briskly.

Modern-day law firms, especially megafirms with offices around the world, rely heavily on a vast array of specialized software that helps them run nearly every aspect of their operations. From docketing cases to tracking hours to managing litigation to calculating bills, most legal practices depend on technological solutions.

“Within the past five years, technology in law firms has really, really advanced,” said Randi Mayes, executive director of the International Legal Technology Association, an Austin, Texas, group that represents 1,700 US law firms and legal departments.

Those of us dealing in legal technology or records management are hardly surprised, but the fact that mainstream articles are now popping up with more frequency shows the extent of the legal world’s transformation.

[HT: EDD Blog Online]

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Posted in Articles, Trends | 1 Comment »

Case Blurb: Benefirst; Good Cause Analysis-Fourth & Fifth Factors

Posted by rjbiii on December 28, 2007

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

I agree with the Plaintiffs that the requested claim forms and medical bills are clearly an integral part of the litigation; the requested information goes not only to BeneFirst’s culpability, but also to the amount of damages, if any, to which the Plaintiffs may be entitled. There can be no serious contention that the information is not highly relevant. In fact, it is difficult to imagine how this case could be prosecuted or defended without the claims forms and attendant bills. As previously found, they are not available from any other source (a determination which is uncontroverted).

These factors favor the Plaintiffs.

Posted in 1st Circuit, Case Blurbs, D. Mass., Discovery Requests, Duty to Produce, FRCP 26(b), Magistrate Judge Timothy S. Hillman, Relevance | Leave a Comment »

Case Blurb: Benefirst; Good Cause Analysis-Two factors on redundancy and availability of data

Posted by rjbiii on December 28, 2007

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors two and three: The quantity of information available from other and more easily accessed sources; and The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources.]

The gravamen of the Plaintiffs’ Amended Complaint is that BeneFirst mishandled their employees’ medical claims by failing to determine eligibility for payment, the availability of co-payment and co-insurance, and subrogation. The processing of the claim forms was presumably the mechanism for making these determinations. While the Amended Complaint and subsequent pleadings are silent, the relevant time period appears to be from 2001 to 2004.*

*I so find because this litigation was commenced in 2005 and it seems safe to assume that none of the original claim forms and medical bills were still in existence at that time (if they were, BeneFirst presumably would have retained them).

According to BeneFirst, the original claim forms and medical bills were processed by hand, kept for 60 days, converted to a digital image and then destroyed. Therefore, digital images which constitute the information requested by the Plaintiffs are in the custody and control of BeneFirst and are not available through any other source.

These factors favor the Plaintiffs.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Posted in 1st Circuit, Case Blurbs, D. Mass., Discovery Requests, Document Retention, Duty to Preserve, Duty to Produce, FRCP 26(b), Good Cause, Magistrate Judge Timothy S. Hillman, Unreasonably Cumulative | Leave a Comment »

Case Blurb: Benefirst; Good Cause Analysis-Specificity of Discovery Request

Posted by rjbiii on December 28, 2007

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. This is the first factor: The specificity of the discovery request.]

BeneFirst’s Motion seeks reconsideration of this Court’s earlier discovery order which ordered BeneFirst to produce “all claims files, including the actual bills in BeneFirst’s possession or control.” The parties have responded intelligently and vigorously to this Order and there is no misunderstanding or confusion about the specificity of the information sought by the Plaintiffs.

This factor favors the Plaintiffs.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Posted in 1st Circuit, Case Blurbs, D. Mass., Discovery Requests, FRCP 26(b), Good Cause, Magistrate Judge Timothy S. Hillman | Leave a Comment »

Case Blurb: Benefirst; Applicability of FRCP Amendments to Case filed Prior to Enactment

Posted by rjbiii on December 28, 2007

The Order of the Supreme Judicial Court of the United States adopting this amendment to Rule 26 provides that such amendments “… shall take effect on December 1, 2006, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.” This case was filed before December 1, 2006 and the instant dispute arose before the effective date of the amendment. At the same time, the case is still in the discovery stages. Furthermore, in briefing the issue, the parties have cited to the seven-step analysis for determining whether or not to shift the cost of production proposed by Judge Scheindlin in Zubulake. The notes to the 2006 Amendment to Rule 26 to a large degree adopt Judge Scheindlin’s seven-step analysis for purposes of determining whether a party should be required to search for and produce information that is not reasonably accessible. See Fed.R.Civ.P. Advisory Committee’s note to 2006 Amendment. Under these circumstances, I find that it is just and practicable to apply the recent amendments to Rule 26 to the instant dispute.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Posted in 1st Circuit, Case Blurbs, D. Mass., FRCP 26, Magistrate Judge Timothy S. Hillman | Leave a Comment »

Case Blurb: Ryan; Handling Privilege Claims

Posted by rjbiii on December 26, 2007

Maxim’s assertion that it has already produced all non-privileged documents responsive to this particular request leaves unanswered and unclear precisely which documents have not been produced based on privilege. Thus, Maxim shall provide an updated and complete privilege log (in substitution for the May 15, 2007 privilege log) identifying each document for which it claims privilege (and that has not been produced under this subject request), as well as the document’s date, author, recipients, and a brief description of the precise privilege relied upon as a basis for withholding the document. The privilege log shall be submitted to plaintiffs and to the Court. Maxim shall further provide the Court with each of the withheld documents identified in the privilege log for the Court’s in camera inspection. In order to be explicitly clear, these documents shall include any minutes or notes of meetings (whether in person or telephonically) of discussions or negotiations regarding the Jasper/Gifford terminations. The individual defendants are under the same burden to produce the requested documents concerning the termination. If documents are withheld on the grounds of privilege, the individual defendants must provide plaintiffs and the Court with a privilege log, as above described, identifying each and every document being withheld, together with copies for the Court’s in camera review.

Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007)

Posted in Case Blurbs, Chancellor William B. Chandler, Del. Ch., Privilege, Privilege Log, State Courts | Leave a Comment »

Trends in E-Discovery Point to Bad News for the Unprepared

Posted by rjbiii on December 26, 2007

E-discovery should be the thing which causes IT departments to break out their cub scout books and remember what it means to “be prepared.” A recent article posted by the Wisconsin Technology Network discusses the meanings of emerging trends in electronic discovery:

A CIO who is on top of things will have frequent meetings with staff attorneys, review e-discovery processes, and map out what the organization’s infrastructure looks like – essentially knowing where data “lives” so the organization can react to litigation. The number of hours spent on e-discovery is growing, but the time investment depends largely on a company’s litigation profile.

This will sound familiar to frequent readers. The article notes some general trends:

Even for complacent companies, Phelps said e-discovery case law is providing more answers in three specific areas: litigation holds, obligations to preserve data, and the determination of what information is reasonably accessible.

Of course, sometimes the guidance is conflicting and ambiguous, but what is clear is that indifference to the rules won’t be excused by courts.

Posted in Articles, Best Practices, Trends | Leave a Comment »

DataKos: Maintaining Privilege Moves to the Forefront

Posted by rjbiii on December 19, 2007

Contending that avoiding inadvertent disclosure of privileged documents will become the top EDD risk of 2008, DataKos opines:

There is much uncertainty, even among many lawyers, as to when the attorney-client privilege should be invoked or asserted. Let’s face it, business people, and lawyers too, insist on using email for everything. Hence, operationally, there are numerous challenges we all face in protecting confidential information from leaking through email forwarded to third parties.

Citing the adoption of new FRE 502, and the privilege waiver concerns dogging generals counsel, DataKos urges IT & RIM professionals to become acquainted with the issues.

Posted in Articles, Attorney Client Privilege, Data Management, FRE 502, Inadvertent Waiver of Privilege | Tagged: | Leave a Comment »

E-discovery from a Canadian Perspective

Posted by rjbiii on December 17, 2007

The ALSP (Association for Litigation Support Professionals) has posted an interview with Canadian attorney, and legal technology expert, Martin Felsky, who, inter alia, discusses differences in electronic discovery processes between the U.S. and his country:

In Canada the issue of how much e-Discovery must be conducted is decided using a proportionality test that weighs the need for the electronic data compared to the costs and burdens of producing it in the context of the amounts in controversy and the issues in the case. Counsel tend to reduce the volume to be examined whereas in the US the attitude is more along the lines of we have to find and process virtually everything that might be relevant.

Mr. Felsky discusses his background, as well as other differences between the two legal systems…

[HT: Information Governance Engagement Area]

Posted in Articles, Discovery, International Issues | Tagged: , | Leave a Comment »