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Electronic Discovery in 2008
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Electronic
Discovery in 2008
January is always a time for reflecting
back on the previous year, but picking the judicial top cases for electronic
discovery is a complex and perhaps insurmountable task.
My key picks for 2008 are just a small
sampling–the very tip of a giant legal-case iceberg. It would be great to hear
your thoughts on the cases and on my views:
Common
Sense and respect for the courts and opposing counsel Qualcomm Inc. v. Broadcomm,
a case that lays out why counsel must apply common sense when responding
to an e-discovery order and be mindful that a court does not consider
digital incompetency a defense. Qualcomm dispute was around patent issues
the discovery issues came about when Qualcomm had the audacity to both lie
and hide 21 emails, as well as over 46,000 emails with attachments,
totaling 20,000 plus pages of relevant evidence–legal term for relevant
information. The key lesson here is simple: do not lie and hide stuff and
if you do and get caught, get ready to be punished.While the elegance of
the adversarial litigation system certainly does not require litigants to
hold hands and sing songs around a camp fire, the other extreme of
stealing a million dollars to test the security measures of bank is simply
not a tenable position for a company.
Hiding
It Will Cost You Plenty & They Will Find It
The Qualcomm case
provides tons of fodder for this critical piece of information. The
electronic age leaves copies everywhere and anywhere, making 100%
elimination of any traces of information being created, sent, or received
a challenge. Investigators with the right tools can pick from a basket of
sources, such as sender or recipients personal machine, external storage
devices, company or third party servers, internal or external databases
and etc.The best course of action is for a company’s legal and technology
team to be transparent in their execution of preservation order and/or
delivery of an enterprise records management solution. Judge Grimm in Mancia v. Mayflower
Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008
) lays out why playing ‘hide the information’ and not playing nice in the
sandbox is bad for your client and more importantly the other side
eventually found the information. Companies should collaborate with one
another to define process and, more important, make sure that the document
retention schedules and litigation holds that exist on paper are executed
operationally.
Finding
It Requires A Bit More than Just Common Sense Victor Stanley Inc. v. Creative Pipe,
a copyright infringement case where the relevance to electronic discovery
is that keywords can be a game changer. Judge Grimm in Victor Stanley
provides some great ESI 101 concepts that litigators and attorneys as a
whole should have some operational knowledge of in some form. In Victor,
the defendants relinquished their attorney-client and work product
privileges to 165 ESI files because they screwed electronic search and
review in the production dance. Judge Grimm’s opinion certainly implies
that lawyers utilizing keyword searches alone are in for a big shock.
Lawyers, I suggest you reach out to your technologists and collaborate on
search strategy.
In 2009, it is critical that lawyers and technologists realize that
finding information in an enterprise requires more than just some well
crafted key words and requires a comprehensive strategy.
The onslaught that is sure to
come–companies large and small are going to be under legal siege in 2009.
Whether it is white collar crime, bankruptcy or wrongful termination, we’ll see
surges maybe even a Tsunami of new lawsuits. The current mentality “if you
build it they will sue” is sure to provide fodder and, dare I say, job security
for a great many of my legal and technology peers.
The concept of preparation, while
foreign to many companies, is critical to initiate because of many possible
benefits: saving money, reducing negative press, avoiding a drop in share
price, meeting compliance requirements and better legal outcomes. This concept
of preparation is analogous to the idea of not lending money to people who
cannot pay it back. Just as failure to follow this seemingly simple construct
has placed many people and companies in an untenable position, failure to
prepare for electronic discovery will find many marquis companies in a
high-risk, business –damaging position, or worse.
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