Post Process

Everything to do with E-discovery & ESI

Archive for June 15th, 2008

Return to sender…please

Posted by rjbiii on June 15, 2008

The International Herald Tribune has posted an article discussing the fact that e-mails don’t always reach their destinations…and the sender isn’t always notified:

The basic Internet e-mail standard – SMTP, or simple mail transport protocol – has always provided for the destination server to send back an error message if the original message cannot be delivered. If no error message comes back, however, can the originating server assume that the message arrived, safe and sound? Not necessarily. A misconfigured server anywhere in the path between sender and recipient can miscarry the message.

The problem that leads to the loss of a message can also prevent the sender from receiving a report of failed delivery. In such instances, e-mail disappears into the ether.

Assuming a message sent is received is dangerous. In a case, if you’re trying to prove communication, retrieve the recipient’s inbox.

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Posted in Articles, Best Practices, email | Tagged: | Leave a Comment »

Case Blurb: O’Keefe; Expert Testimony needed to dispute search methodolgy in court

Posted by rjbiii on June 15, 2008

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 RICH. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008), available at http://www.thesedonaconference.org/content/miscFiles/Best_Practices_Retrieval_Methods_revised_cover_and_preface.pdf. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

United States v. O’Keefe, 537 F. Supp. 2d 14, 23-4 (D.D.C. 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRE 702, Magistrate Judge John M. Facciola, Search Protocols | 1 Comment »

Case Blurb: Creative Pipe; Court describes process for maintaining attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]nsuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process. First, pursuant to Fed.R.Civ.P. 26(b)(5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed. At this first stage, it is sufficient to meet the initial burden by a properly prepared privilege log. If, after this has been done, the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *11 (D.Md. May 29, 2008 ).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., FRCP 26(b), Magistrate Judge Paul W. Grimm, Privilege Log | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for determining the proper assertion of the attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]n order for the court to determine whether the attorney-client privilege was properly asserted regarding a particular document, the court must make the following fact determinations:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for the Intermediate Balancing Test for examining whether privilege has been waived

Posted by rjbiii on June 15, 2008

The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.

[The Producing Party]…bear[s] the burden of proving that their conduct was reasonable for purposes of assessing whether they waived attorney-client privilege…

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Leave a Comment »

Case Blurb: Creative Pipe; Three Judicial approaches to examining waiver of privilege

Posted by rjbiii on June 15, 2008

[C]ourts have taken three different approaches when deciding whether the inadvertent production to an adversary of attorney client privileged or work-product protected materials constitutes a waiver. Under the most lenient approach there is no waiver because there has not been a knowing and intentional relinquishment of the privilege/protection; under the most strict approach, there is a waiver because once disclosed, there can no longer be any expectation of confidentiality; and under the intermediate one, the court balances a number of factors to determine whether the producing party exercised reasonable care under the circumstances to prevent against disclosure of privileged and protected information, and if so, there is no waiver.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *4 (D.Md. May 29, 2008 )

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Not all keyword searches are created equal

Posted by rjbiii on June 15, 2008

While it is known that [Producing Party] and [Producing Party’s attorneys] selected the keywords, nothing is known from the affidavits provided to the court regarding their qualifications for designing a search and information retrieval strategy that could be expected to produce an effective and reliable privilege review. As will be discussed, while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review. Additionally, the Defendants do not assert that any sampling was done of the text searchable ESI files that were determined not to contain privileged information on the basis of the keyword search to see if the search results were reliable. Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D.Md. May 29, 2008 )

Posted in 4th Circuit, Best Practices, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Search Protocols | Tagged: , | Leave a Comment »