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Use and Abuse of Attorney-Client Privilege and Work Product Doctrine in E-Discovery

Two  federal courts recently dealt with thorny issues stemming from defendant employers’ use of the attorney-client privilege and work product doctrine. These rulings should be heeded by those of us who develop or revise electronic data review protocols, particularly any  guidance for determining when to withhold documents under the attorney-client privilege or the work product doctrine.

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Reserve Your Rights: Always Ask for Native

As the document production trend continues to move almost exclusively towards electronic formats, make sure you always indicate in your Request for Production of Documents the specific request that certain information may be requested in native format. This preserves your right to request documents that are not produced in a reasonable usable format to be produced later in a usable manner. Often times the most desirable, usable format is native especially if you anticipate Excel spreadsheets or drafts of contracts that may have hidden formulas or other information such as track changes.

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The Cooperation Proclamation: Way of the Future or Ideal Never to Pass?

When the Sedona Conference issued its Cooperation Proclamation in 2008, the concept was simple: collaborate with the adverse party to make the electronic discovery process transparent, effective, and efficient.  Work together to reduce costs.  Cooperate to fulfill the true spirit and intent of the rules.  But is this possible? 

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