September 26, 2008

Don't Blink! This Week's eDiscovery Developments

To catch you up for the week --

New FRE Rule 502 signed by President

New Evidence Rule 502 protects against the inadvertent waiver of the attorney-client privilege or the work product protection. It will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment.

Discovery Disaster Threatens to Derail Case Against Former McAfee GC

Contract attorney reviewers, like Rodney Dangerfield, just get no respect. Despite being under subpoena for two years, several key e-mails were not produced by a law firm until the eve of trial, allegedly because their contract review attorneys tagged them as "not relevant", and the senior lawyers missed them as well.

My take: Supervising attorneys, regardless of whether they're supervising the work of internal legal assistants, outsourced contract attorneys or other service providers still bear the ultimate responsibility for their collective work. The timing of the firm's "discovery" is sure to be good fodder for cocktail and blogger discussions for weeks to come. The judge initially reacted by saying "heads will have to roll", but then relented upon hearing the explanation.

E-Discovery Response Must Include Context?

Sometimes the electronic equivalent of papering your opponent to death can backfire: The producing party responded with 400,000 pages worth of ESI, significantly more than the requesting party was seeking. The problem: They delivered the documents in 220 unlabeled computer folders -- the way the company said they were kept in "the ordinary course of business." Per the article:

"A party who in response to a discovery demand has chosen to produce documents as they are ordinarily maintained must do just that - produce the documents organized as they are maintained in the ordinary course of producing party's business, with at least some modicum of information regarding how they are ordinarily kept in order to allow the requesting party to make meaningful use of the documents," the magistrate judge wrote in Pass & Seymour v. Hubbell Incorporated, 5:07-cv-00945. (emphasis added)

To make information meaningful, parties have to provide their adversaries with some context to help them navigate their way through it, according to the magistrate judge.

"At a minimum, that means that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered," wrote Peebles, who sits in Syracuse, N.Y.

GCs See Major Changes in Company Risk Management in Wake of Wall Street Meltdown
"Corporate general counsel expect increased company risk management and more regulatory enforcement in the wake of collapsing financial institutions, such as Fannie Mae, Lehman Bros Holdings Inc. and American International Group.

State government regulatory oversight will rise with more attorney general probes, and federal oversight will expand in step with the next presidential administration, said some general counsel attending the Argyle Executive Forum in Chicago this week."

Not an eDiscovery development per se, but a sign GCs are already seeing they'll need to intensify their risk management and compliance initiatives or suffer the consequences, which in my opinion will include eDiscovery ramifications and costs.

Topic(s):   Electronic Discovery
Posted by Jeff Beard