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Archive for March, 2009

Case Blurb: Herriot; Court re-crafts protocol for privileged waiver on inadvertently produced documents (7th Cir.)

Posted by rjbiii on March 30, 2009

Ordinarily, disclosure of confidential information to an unprotected third party operates as a waiver. Under FRE 502, however, disclosure of privileged information will not operate as a waiver when “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).” All three elements described in FRE 502 must be satisfied to prevent a waiver.

Plaintiffs argue that “[FRE] 502 is applicable to this case[,] and Defendants offer no reason why it would not be ‘just and practicable’ to apply [FRE] 502 to this case as in every other case.” Defendants argue that this Court should apply the three-part inquiry quoted in Judson. The Judson test requires the court to decide (1) whether the disclosed material was privileged, (2) whether the disclosure was inadvertent, and (3) whether the privilege was waived.

There is no question that FRE 502 applies to this case. The 2008 Amendment clearly stated that FRE 502 applies to matters pending on September 19, 2008, “insofar as is just and practicable.” This matter was pending on that date, and this Court finds no reason, and Defendants have pointed to none, that precludes the application of FRE 502.


To properly assess whether FRE 502(b) overrides Judson, this Court examines each step of the Judson test.

The first step of the Judson test requires the court to determine whether the documents at issue are privileged. This step must remain in place under FRE 502(b), which applies only to privileged information that was inadvertently disclosed. Prior to addressing any of the elements stated in FRE 502(b), therefore, the court must determine whether the documents are privileged. If the documents are not privileged, the inquiry ends. If the documents in question are privileged, then FRE 502(b) applies, and the court must determine whether each of FRE 502(b)’s elements was satisfied. The first element of FRE 502(b), which also is the second step of the Judson test, requires the court to assess whether the party’s disclosure was inadvertent. Therefore, this Court will assess whether a disclosure is inadvertent. FN6

FN6: Inadvertence under FRE 502(b) is not necessarily the same as, and does not necessarily mirror the case law describing, inadvertence under Judson.

Defendants also urge this Court to adopt Judson’s third step, which requires the court to determine, using a “balancing approach,” whether a waiver occurred despite the inadvertent disclosure of privileged information. The balancing approach requires the court to consider “(1) the reasonableness of the precautions taken to prevent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.”

That tack, however, has been at least partially foreclosed by Congressional action. FRE 502 specifically states that inadvertent disclosure “does not operate as a waiver in a Federal . . . proceeding.” In other words, the second and third steps of the Judson test have been folded into the entire FRE 502(b) inquiry. FRE 502 does not, however, prohibit the use of the Judson factors. FED. R. EVID. 502(b) advisory committee’s note (noting that the non-dispositive factors a court may consider “are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness”). Thus, while “[FRE 502(b)] is flexible enough to accommodate any of those listed factors,” it “does not explicitly codify [the Judson] test[] because [the factors it uses are] a set of non-determinative guidelines that vary from case to case.” Therefore, the court may, but need not, use some or all of the Judson factors to assess whether FRE 502(b)’s requirements have been satisfied.

This Court therefore adopts the following test. First, a court determines whether the disclosed material is privileged. If it is not, the inquiry ends. If the material is privileged, the court applies FRE 502(b). If the court concludes that disclosing party satisfied all of the elements in FRE 502(b), the privilege is not waived. If, however, the disclosing party fails to satisfy any of the FRE 502 elements, the privilege is waived. In applying FRE 502(b), the court is free to consider any or all of the five Judson factors, provided they are relevant, to evaluate whether each element of FRE 502(b) has been satisfied. FN7.

FN7: One court has applied FRE 502(b) in a rather peculiar fashion, choosing to adopt the factors articulated in the committee’s note as a wholesale test of inadvertent disclosure. Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216, 218-27 (E.D. Penn. 2008). Strangely, using only the Judson factors to determine the waiver question eliminates any need to consult the elements required under FRE 502. Such an approach would ignore a Congressional mandate and substitute judicial holdings for legislation. Therefore, this Court concludes that a better approach focuses on the elements required by FRE 502 and uses the Judson factors, where appropriate, to supplement this analysis.

Heriot v. Byrne, 2009 U.S. Dist. LEXIS 22552 at *16-(N.D. Ill. Mar. 20, 2009) (internal citations removed)

Posted in 7th Circuit, Case Blurbs, FRE 502, Magistrate Judge Martin C. Ashman, N.D. Ill., Privilege, Waiver of Privilege | 1 Comment »

Case Summary: William A. Gross Constr. Assocs.; Court Issues ‘wake up’ call to counsel on keywords

Posted by rjbiii on March 28, 2009

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

The opinion addressed the creation of a search protocol in this case over “alleged defects and delay in the construction ofthe Bronx County Hall of Justice.” The court began by lecturing counsel, and the district’s bar in general, over its (evidently perceived lax) attitude toward formulating search criteria:

This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.

The lesson began, the court complained that counsel had not adequately communicated in order to arrive at a suitably agreed-upon search criterion, and the protocol that had been formulated was not the result of a sufficiently methodological process:

This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

The court then stated that it found itself in the “uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information…”

After making certain additions to the keywords comprising the search criterion, the court then cited opinions from Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) (Grimm, MJ.) and United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, MJ.) for supporting the supposition that formulating keywords “requires careful advance planning by persons qualified to design effective search methodology” and designing search protocols “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics.” The court continued by noting that the “best solution” was for opposing counsel to cooperate in formulating a search protocol, and strongly endorsing the Sedona Conference’s Cooperation proclamation.

Lessons learned:

  1. The formulation of search protocols is to be taken seriously, and accomplished with careful thought, quality control, and testing.
  2. Initial assumptions should not be generated blindly or in an arbitrary fashion, and should be tested and, if necessary, modified.
  3. Counsel should be prepared for greater levels of communication, cooperation, and transparency than in the past.
  4. Even an admittedly imperfect protocol, if the above elements are present, may suffice.

Posted in 2nd Circuit, Case Summary, Effectively Managing E-Discovery, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols, The Sedona Conference | Tagged: | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Court helps to craft Search Protocol

Posted by rjbiii on March 28, 2009

This case involves a multi-million dollar dispute over alleged defects and delay in the construction ofthe Bronx County Hall of Justice, also known as the Bronx Criminal Court Complex. The Dormitory Authority of the State of New York (“DASNY”) was the “owner” of the project. Non-party Hill International is DASNY’s current construction manager, and DASNY has agreed to produce Hill’s project-related documents and ESI to the other parties to this suit. The issue before the Court is the production of Hill’s emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hill’s unrelated emails.

DASNY’s proposed search terms included “DASNY,” “Dormitory Authority,” and “Authority,” FN1 and the names of the other parties to the action. DASNY also added “Court! in connection with Bronx,” “Hall of Justice,” and “Bronx but not Zoo” (since Hill worked on an unrelated project involving the Bronx Zoo). The other parties requested the use of thousands of additional search terms, emphasizing the construction issues they were involved in, such as “sidewalk,” “change order,” “driveway,” “access,” “alarm,” “budget,” “build,” “claim,” “delay,” “elevator,” “electrical” — you get the picture. DASNY correctly pointed out that use of such extensive keywords would require production of the entire Hill email database, since Hill’s business is construction management, and those terms would be used for any construction project.

FN1: The Court is no keyword expert, but if one is searching for “Authority,” to also search for “Dormitory Authority” is clearly redundant.

Hill’s only contribution to the discussion was to agree that DASNY’s search [*10] terms were probably too narrow but the other parties’ terms were overbroad, and that Hill did not want to produce emails that did not relate to the Bronx Courthouse project. This problem would have been avoided, of course, if Hill used a standard “Re” line in its Bronx Courthouse emails to distinguish that project from its other work. It did not do so, however. Moreover, while Hill was in the best position to explain to the parties and the Court what nomenclature its employees used in emails, Hill did not do so — perhaps because, as a non-party, it wanted to have as little involvement in the case as possible.

That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill). The Court ruled at yesterday’s conference that in addition to DASNY’s proposed terms (including variations on and abbreviations of party names), the search should also include the names ofthe parties’ personnel involved in the Bronx Courthouse construction. FN2

FN2: The Court acknowledges that this result is less than perfect, and that there is a risk that as information later comes out at depositions of the Hill employees, another search may have to be done.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Leave a Comment »

Case Blurb: William A. Gross. Constr. Assocs., Inc; Need for cooperation and communication during E-Discovery

Posted by rjbiii on March 28, 2009

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar — even those lawyers who did not come of age in the computer era — understand this.

William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 at *13-14 (S.D.N.Y. Mar. 19, 2009)

Posted in 2nd Circuit, Case Blurbs, Key Words, Magistrate Judge Andrew J. Peck, S.D.N.Y, Search Protocols | Tagged: | Leave a Comment »

The Search Engine as Electronic Brain: Wolfram Alpha goes Live in May

Posted by rjbiii on March 11, 2009

CNet blogger Dan Farber discusses the upcoming release of Stephen Wolfram’s latest venture: a new search engine that is being touted as a breakthrough:
[Entrepreneur Nova] Spivack gave some insight as to how the Wolfram’s search engine works:

Wolfram Alpha is a system for computing the answers to questions. To accomplish this it uses built-in models of fields of knowledge, complete with data and algorithms, that represent real-world knowledge.

For example, it contains formal models of much of what we know about science — massive amounts of data about various physical laws and properties, as well as data about the physical world.

Based on this you can ask it scientific questions and it can compute the answers for you. Even if it has not been programmed explicity to answer each question you might ask it.

But science is just one of the domains it knows about–it also knows about technology, geography, weather, cooking, business, travel, people, music, and more.

It also has a natural language interface for asking it questions. This interface allows you to ask questions in plain language, or even in various forms of abbreviated notation, and then provides detailed answers.

The vision seems to be to create a system which can do for formal knowledge (all the formally definable systems, heuristics, algorithms, rules, methods, theorems, and facts in the world) what search engines have done for informal knowledge (all the text and documents in various forms of media).

As the article mentions, Wolfram is the creator of Mathematica, and the writer of a book (not always warmly received) entitled A New Kind of Science.

Posted in Articles, Search Engine Technology, Technology, Trends | Tagged: , | Leave a Comment »

Punchcards we loved: A Retrospective on Storage Media

Posted by rjbiii on March 5, 2009

Maximum PC has posted a neat article inviting readers to:

Fasten your seatbelt and take a trip back in time with us as we follow the evolution of computer storage from its earliest days, all the way up to now.

Try not to get too sentimental…

Posted in Articles, Storage Media Technology, Technology | Tagged: , | Leave a Comment »

The Sedona Conference: Suggested Balancing Test for Cross Border Discovery Requests

Posted by rjbiii on March 5, 2009

Ideally, determining the scope of cross-border discovery obligations should be based on a balancing of the needs,
costs and burdens of the discovery with the interests of each jurisdiction in protecting the privacy rights and welfare
of its citizens. The following factors should be considered in this balancing:
1. The nature of the data privacy obligations in the jurisdiction where the information is located;
2. The obligations of the responding party to preserve and produce relevant information in the
jurisdiction where the dispute is filed and the jurisdiction where the data is located;
3. The purpose and degree of custody and control of the responding party over maintaining the
requested information;
4. The nature and complexity of the proceedings;
5. The amount in controversy;
6. The importance of the discovery to resolving critical issues; and
7. The ease and expense of collecting, processing, reviewing and producing relevant information,
taking into account:
a. the accessibility of the relevant information;
b. the volume of the relevant information;
c. the location of the relevant information;
d. the likelihood that the integrity and authenticity of the information will be impaired by
the discovery process; and
e. the ability to identify information that is subject to foreign privilege and work product
protection from disclosure.

The Sedona Conference, Framework for Analysis of Cross Border Conflicts 34 (Aug. 2008). (Registration Req’d).

Posted in International Issues, The Sedona Conference, White Papers | Tagged: , | Leave a Comment »