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Rule 502(d) Orders and the Attorney-Client Privilege

In today’s increasingly data-driven world, compliance with discovery requirements can mean production of hundreds of thousands of pages of documents, if not millions. Federal Rule of Evidence 502(d) was enacted to reduce the costs and risks associated with discovery, and to allow a federal court to protect the privilege of documents that have been inadvertently disclosed. Federal Rule of Evidence 502(d) provides that “a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”

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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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FURTHER REVISED RULE 37(e) PASSES STANDING RULES SUB-COMMITTEE – NEXT STOP, GENERAL DEBATE

"Let us go on perfecting the Constitution by adding, by way of amendment, those forms which time and trial show are still wanting." --Thomas Jefferson Letters; Letter to Wilson Nicholas, 1803.

Following a series of final revisions to the highly controversial proposed re-draft of Federal Rule of Civil Procedure 37(e), and after significant discussions and debate, the Standing Committee of the Federal Rules and Practice Procedure finally approved a revised rule on May 29, 2014. True to form, the most recent version of the rule as adopted by the Advisory Committee on Civil Rules on April 10 – 11, 2014 did manage to pass, but once again only after significant discussion and debate among the Rules Committee members.  While the Sub-Committee has yet to review two memoranda proposing changes to the Committee Notes for Rule 37(e), the revised rule now moves forward to be heard for general debate and comment by the larger Rules Committee. 

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FROM LAW CLERK TO FIRST CHAIR: EFFECTIVE POSITIONING OF TAR

The selection of the actual TAR technology platform, while important, is not the most salient factor required for making optimal use of TAR.  Rather, identifying and seeking collaborative agreement as to the ultimate strategic use and objectives sought from TAR, and really understanding the what, when, why and how to use it, is the most salient factor required to inform your pragmatic decision regarding whether or not to employ a TAR methodology.

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E-Discovery Vendor or Partner: It’s All in the Name

A quick glance at  Dictionary.com reveals the following definitions for the word ‘vendor’ vs. the word ‘partner’:

vendor:
-noun
1.        a person or agency that sells.

partner:
-noun
1.        a person who shares or is associated with another in some action or endeavor; sharer; associate.

How do you and your organization view your relationship with your external e-discovery service provider(s), as those of a vendor, or those of a partner?  Frequently razzed about my overt avoidance of the word ‘vendor’ when seeking e-discovery RFP project consultations and bids at the onset of a new litigation matter, the word ‘vendor’ still never fails to leave a sour taste in my mouth. 

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Ex Parte Discovery Permitted in Website Trademark Infringement and Defamation Case

The recent decision of a Utah District Court has opened the door to ex parte discovery in cases involving website content.  In 1524948 Alberta Ltd. V. Joe Doe 1-50, No. 10-900 (D. Utah September 23, 2010), the plaintiff alleged that certain website content infringed on its trademark and was defamatory. 

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Be Careful What You Post: Social Networks Are Discoverable

As two recent cases have made it abundantly clear, one must be very careful what is posted on your social networking cites.  I was fascinated by the discussion in the blog on Forbes website entitled: Do Your Social Networking Privacy Settings Matter If You Get Sued? by Kashmir Hill.

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Retrieving Discoverable E-Discovery Data from Social Media Sites: Or, "Wow, is this what I asked for?!"

A great deal of attention has been properly paid to the inherent data privacy and compliance issues surrounding critical e-discovery data stored on social media sites such as Facebook, LinkedIn and Twitter.  Moreover, when this same data is stored in the Cloud, these issues become further complicated.

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Court Rules on Social Media Sites' Privacy Settings

On May 26th, the U.S. District Court for the Central District of California ruled that, under the Stored Communications Act of 1986, postings to a user’s Facebook “wall” (and, similarly, to the “comments” page on MySpace – although nobody actually uses MySpace anymore) are considered private so long as the user has his privacy settings set such that only “friends” can see his wall postings.

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Always Have A Plan

As it is so eloquently stated in the Canadian legal blog, SLAW in the article entitled Practice of Law: Practice Management by Peg Duncan; it is crucial to always have an E-Discovery Project Plan.

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