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Everything to do with E-discovery & ESI

Archive for April, 2009

Comparing Discovery in Canada and the US

Posted by rjbiii on April 26, 2009

Byte and Switch has a nice post discussing the differences between Canadian and US discovery processes. From the blog:

I expected litigation and e-discovery to be closer than it really is. Here is our overview of the situation: The Canadian provinces exert tremendous control over e-discovery practices and procedures in common and civil law. There is no corresponding natural statute such as the U.S. Federal Rules of Civil Procedure, making e-discovery in Canada difficult to affect on a unified national principle.

There are national Canadian guidelines with the publication of Sedona Canada’s e-discovery principles and the Judicial Council’s practice direction for e-discovery in civil courts. (“The Sedona Canada Principles Addressing Electronic Discovery” and “National Model Practice Direction for the Use of Technology in Civil Litigation,” respectively.) These principles and guidelines for court practice are excellent steps forward and provide guidance for provinces that are developing their own sets of e-discovery rules. (British Columbia, Nova Scotia, Alberta, and Ontario have well-developed principles or drafts, and other provinces are no doubt busy as well.) Neither is statutory, and they exist as guidelines to implementation.

The post states that U.S. attorneys can learn from the Canadians’ attempts at reigning in costs, while Canadians could benefit by using proper tools.

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

EDD Basics: SearchStorage.com breaks down the EDRM to techies

Posted by rjbiii on April 14, 2009

SearchStorage.com posts an article by Alan Radding meant to inform storage techies on the EDRM. From the article:

“For an IT person faced with finding e-discovery tools, the first thing I would do is take the EDRM diagram and go talk with your legal counsel,” said Matthew Todd, CISO and vice president of risk and technical operations at Palo Alto, Calif.-based Financial Engines Inc. The legal counsel should tell you which functions the IT group should do in-house. Then you can start looking at tools.

It’s a good primer, but it contains a complaint I find puzzling: that the EDRM doesn’t list tools (solutions that do the tasks illustrated by the model). The reason for that, of course, is that the model was deliberately built to be technologically-neutral. Of course, coming from the IT side, where one might be completely unfamiliar with the tools of this trade, I can see where a product guide would be helpful. But that is beyond the EDRM’s scope and purpose (although in writing this, I allow myself to put words in the mouths of the model’s creators…without any authorization to do so).

Posted in Articles, EDD Basics, Electronic Discovery Reference Model | Tagged: | Leave a Comment »

Case Blurb: Relion, Inc; Multiple failures lead to a waiver of privilege

Posted by rjbiii on April 10, 2009

[Post Process: the court applies FRE 502(b) for its analysis of a situation of inadvertent production]

On the basis of this evidence, I conclude that [Producing Party] has not carried its burden of disproving waiver. [Producing Party’s] discovery documents were inspected by attorneys and support staff…before they were produced… As the incident involving the re-exam file indicates, there was no surprise or deception on the part of [Requesting Party’s] counsel. [Counsel for Producing Party] not only had the opportunity to inspect the documents prior to the arrival of [Requesting Party’s] counsel, it had two additional opportunities to do so after [Requesting Party] had reviewed [Producing Party’s] documents, as [Requesting Party] provided [Producing Party’s] counsel with both hard copies and electronic, text-searchable copies of the documents [Requesting Party] had selected for copying. I conclude that [Producing Party] did not pursue all reasonable means of preserving the confidentiality of the documents produced to [Requesting Party], and therefore that the privilege was waived. The fact that [counsel for Producing Party] did not intend to produce any privileged documents is not dispositive.

Relion, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008 ).

Posted in 9th Circuit, Case Blurbs, D. Or., FRE 502, Privilege, Waiver of Privilege | Leave a Comment »

NJ Case Blurb: Stengart; Privilege waived when message to attorney created on company computer

Posted by rjbiii on April 9, 2009

The question posited is whether communication between an employee and her attorney through a personal, password protected, web-based E-mail account, but made on the employer’s computer, using and over the employer’s server, during business hours, is protected by the attorney client privilege, given employer’s provisions governing use of electronic communications with company issued equipment, resources and time. The Court finds that when an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee.

Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (N.J. Super. Ct. Law Div., March 6, 2009).

Posted in Case Blurbs-NJ, email, NJ, Privilege, State Courts, Waiver of Privilege | Tagged: | Leave a Comment »

FTC Unveils New ‘Red Flags’ Website

Posted by rjbiii on April 8, 2009

The Red Flags rule, designed to tighten data security and fight ID theft, come into force on May 1. The FTC has launched a web site designed to help businesses determine if they need to comply, and how to do so.

According to the agency’s “How-to” guide (click here for a pdf version), the Red Flags rule mandates:

  • The establishment of a program that includes reasonable policies and procedures
    to identify the “red flags” of identity theft you a business may run across during its day-to-day operations.
  • the Program implemented must be designed to detect the specific red flags that have been identified.
  • the prorgram implemented spell out appropriate actions that will be taken red flags are detected.
  • a process to re-evaluate current policies and programs
  • implementation of policies into business practices.

Those institutions who must comply with the new rule include:

  • Financial Institutions; and
  • Creditors (entities who regularly grant or arrange loans or extend credit to consumers or businesses, or make “credit decisions.”)

The rules were initially slated to become effective on November 1, 2008, but the FTC granted businesses a six-month delay. That reprieve is now ending, however.

Posted in Articles, Compliance, Information Governance, Red Flags Rule, Trends | Leave a Comment »

Doubts about Self-Regulation

Posted by rjbiii on April 7, 2009

Info World has posted an article casting doubt on the wisdom of using self-regulation to ensure compliance. The article highlights a story in which Macy’s has refused to provide contact information for customers who bought toy necklaces later found to contain lead. From the article:

Macy’s was one of the retailers that pulled the necklaces. But when L.A. Deputy District Attorney Daniel Wright asked for the records of customers who bought the necklaces, Macy’s refused to turn over any information. At issue is the ability to notify parents who purchased the necklaces for their children.

The article speculates that the reason for Macy’s refusal may be that the retailer is not in compliance with Payment Card Industry standards. That aside, the bottom line is that self-regulation is being given a black eye.

A study released in December of 2008 pointed out issues with respect to the EU-Dept. of Commerce Safe Harbor scheme. That study claimed that only 22% of those companies that were “self-certified” as compliant to safe harbor principles were actually compliant. The report’s basic conclusion was that the program had been ineffective.

The operational rationale behind self-regulation is undermined when we see figures such as those reported above. Information Technology’s best practices contain, as a substantial portion of its foundation, the principles embodied in active self-regulation. Recent events, from the collapse of the financial sector, to the misdeeds behind the situation facing mortgagees, illustrate the limits to self-regulation, and recall to our consciousness the maxim: trust…but verify.

Posted in Articles, Compliance, Self-Regulation, Trends | Tagged: , | Leave a Comment »

Automating Science

Posted by rjbiii on April 5, 2009

Post Process has, in the past, posted small articles on the changes in technology that are transforming society. We pointed to the new field of computational journalism. We also put up a post discussing the “age of the petabyte,” in which we discussed the consequences of having so much data available. In that post, we highlighted a defense attorney’s use of Google analytics to more objectively examine a community’s definition of “obscenity.”

Now, from Wired, comes word that a computer (or robot, if you like) not only stores and analyzes facts, but uses the presence of the data now available to discover laws of physics on its own. That is, the discovery is made by the computer, rather than a human being:

“It’s a powerful approach,” said University of Michigan computer scientist Martha Pollack, with “the potential to apply to any type of dynamical system.” As possible fields of application, Pollack named environmental systems, weather patterns, population genetics, cosmology and oceanography. “Just about any natural science has the type of structure that would be amenable,” she said.

Compared to laws likely to govern the brain or genome, the laws of motion discovered by the program are extremely simple. But the principles of Lipson and Schmidt’s program should work at higher scales.

The researchers have already applied the program to recordings of individuals’ physiological states and their levels of metabolites, the cellular proteins that collectively run our bodies but remain, molecule by molecule, largely uncharacterized — a perfect example of data lacking a theory.

Their results are still unpublished, but “we’ve found some interesting laws already, some laws that are not known,” said Lipson. “What we’re working on now is the next step — ways in which we can try to explain these equations, correlate them with existing knowledge, try to break these things down into components for which we have clues.”

One wonders if the “automation” of scientific discoveries will now bring such a rapid pace of discovery, that we will all be left behind, hopeless swimming against an ever-stronger tide.

Posted in Articles, Technology, Trends | Leave a Comment »

Case Summary: Heriot; Vendor Error resulting in Production of Privileged Documents did not Waive Privilege

Posted by rjbiii on April 1, 2009

Heriot v. Byrne, 2009 U.S. Dist. LEXIS 22552 (N.D. Ill. Mar. 20, 2009)

To assist them in complying with a production request, responding party hired a vendor to provide scanning and other services associated with discovery. The Vendor created a “master database” that responding party used to conduct their document review. Documents designated for production were then copied to a “production database,” where they would be “marked” with an appropriate confidentiality designation.

Responding party sent hard copy versions of immigration documents to the vendor with instructions to digitize the documents, load them into the Master Database, copy them to the Production Database, apply the appropriate confidentiality legend and bates numbers, and include them in the next production. The vendor, however, mistakenly exported not only the requested documents, but other, privileged documents as well. This resulted in the inadvertent production of privilege. The error was not in the instructions given to the vendor, but was in the vendor’s execution of those instructions. Requesting party then filed a motion

During the production, requesting party asked the responding party if any documents had been withheld due to privilege. Responding party answered in the negative. Responding party subsequently learned of the error, and informed opposing counsel while requesting the documents be destroyed. Opposing counsel destroyed all documents but one set, which it filed under seal with the court. They then filed motions with the court requesting, inter alia, that the court prevent the “claw back” of the documents and instead compel their production. Responding party asserted that the documents were privileged.

The court began its analysis by determining that FRE 502 applied to the case, and crafting a new protocol for deciding whether inadvertent production necessitates the waiver of privilege (see our case blurb here).
Based on the results of an in camera review, the court decided that the documents at issue were privileged, and that the crime-fraud exception does not apply.

The court applied FRE 502(b) by considering: 1) whether disclosure was inadvertent; 2) whether responding party took reasonable steps to prevent disclosure; and 3) whether responding party took prompt steps to rectify the inadvertent disclosure. The court noted that prior to the promulgation of the new rule, the burden rested with the party claiming privilege to prove its contentions. The court saw no reason to shift this burden.

In determining whether a production was inadvertent, the court weighed such factors as: the total number of documents reviewed, the procedures used to review the documents before they were produced, and the actions of producing party after discovering that the documents had been produced.

Additionally, the court examined “the extent of the disclosure” and “the scope of discovery,” while commenting that these two factors operated on a sliding scale: the broader the scope of the discovery, the more extensive a party’s disclosure of confidential materials may be without waiving the privilege, and vice versa. The court noted that the privileged documents comprised 5% of the volume of pages produced, and 13% of the volume of the documents produced, labeling these figures neither apoplectically large nor astonishingly small. The court described the extent of the disclosure as being “broad” and the magnitude of the percentages as “not insignificant.” Nevertheless, the court found other factors more significant for the purpose of its analysis, particularly the actions of the producing party upon discovering the mistake. Because the responding party took immediate action, the court decided that the first factor weighed in favor of responding party, concluding that the production was inadvertent. The court then addressed the second factor of its test, the party’s steps to remedy the inadvertent disclosure. Therefore, as long as reasonable procedures were in place prior to “turning the documents over to the vendors,” the responding party met its obligations. The court concluded, therefore, that responding party did take reasonable measures to prevent inadvertent production.

In beginning the second part of its three-step analysis, the court cited the advisory committee’s notes that it may, in making this determination, consider several factors, including “the number of documents to be reviewed and the time constraints for production”; whether “a party that use[d] advanced analytical software applications and linguistic tools in screening for privilege and work product”; and whether “[t]he implementation of an efficient system of records management before litigation.” The court emphasized that the producing party was not required to engage in a post-production audit, although it was required to follow up on any obvious indications that a protected communication or information has been produced inadvertently.

In the third and final part of its analysis, the court stated that case law it unearthed stood for the proposition that how the disclosing party discovers and rectifies the disclosure is more important than when after the inadvertent disclosure the discovery occurs. In the case at bar, responding party discovered the error earlier than had the responding parties in the cases examined by the court, and were as diligent. In those cases, the disclosing parties were found to have acted appropriately. Therefore, the court found that Plaintiffs took prompt steps to rectify their inadvertent disclosure.

The court concluded that the responding party’s disclosure was inadvertent and that they did not waive the attorney-client privilege as to the Sequestered Documents.

Posted in 7th Circuit, Case Summary, EDD Vendors, FRE 502, Magistrate Judge Martin C. Ashman, Privilege, Waiver of Privilege | Leave a Comment »