E-Discovery Resource Center
The latest e-discovery coverage from Executive Counsel.
Google Plus Raises New Liability Questions
Joshua Kubicki
Executive Counsel October/November 2011
Facebook, Twitter and LinkedIn have become powerful marketing tools, allowing companies to engage with millions of potential clients or customers. But as the boundaries between personal and professional interaction blur, the question of “personal privacy” vs. “company policy” is inevitably encountered.
E-discovery Malpractice and How to Avoid It
Kelly D. Kubacki
Executive Counsel October/November 2011
What appears to be the first ever lawsuit alleging e-discovery malpractice was filed on June 2, 2011, in the Superior Court of California, County of Los Angeles. J-M Manufacturing Company Inc. sued the law firm of McDermott Will & Emery, along with “DOES 1 through 100,” alleging the firm failed to supervise contract attorneys during the review process, resulting in the production of privileged documents. The complaint claims the firm’s conduct was “fraudulent,” “malicious” and “oppressive.” The matter was subsequently removed to federal court and is ongoing.
A Primer on Metadata To Scrub or not to Scrub?
H. Hunter Twiford III and John T. Rouse
Executive Counsel August/September 2011
Under the 2006 amendments to the Federal Rules of Civil Procedure, there is a strong emphasis on a party’s ability to produce and review files in their “native format,” which is the associated file structure defined by the original application creating the file. For example, Microsoft Word documents are created as .doc files in their native format, but a printed or scanned version – a .pdf or .tiff image – is no longer in the native format. The concept may be somewhat new territory for many attorneys, but some familiarity with it is important, since it’s in the native format where the metadata is found.
Early Case Assessment is Defensible, Strategic and Smart
Christopher Wall and Lisa A. Spinelli
Executive Counsel June/July 2011
Document review continues to be the costliest and most time-consuming aspect of e-discovery, and organizations are looking for new approaches and technologies to make it cheaper. Could technologies such as artificial intelligence (AI) soon replace first-tier – or even second-tier – review in major litigations? Has AI achieved enough reasoning power and legal capability to stand in for lawyers and contract attorneys in a meaningful and defensible manner? Is the market even asking the right questions about the capabilities of these new technologies?
Benefits and Risks of Predictive Coding
Ken Leissler and Wai M. Yip
Executive Counsel April/May 2011
Document review continues to be the costliest and most time-consuming aspect of e-discovery, and organizations are looking for new approaches and technologies to make it cheaper. Could technologies such as artificial intelligence (AI) soon replace first-tier – or even second-tier – review in major litigations? Has AI achieved enough reasoning power and legal capability to stand in for lawyers and contract attorneys in a meaningful and defensible manner? Is the market even asking the right questions about the capabilities of these new technologies?
In-house or Outsource for Information Hosting?
Fernando Parra
Executive Counsel February/March 2011
It is common for corporations to be faced with daunting amounts of data residing in unstructured formats, and the volume of data is growing at a frightening rate. We have seen our clients’ data storage needs grow by approximately 800 percent over the past three years. The need to host documents may arise while handling a specific legal matter, where the need is for rapid search and review of electronic records, or it may arise in the context of ongoing business, where the need is to rapidly index, find and use electronic records.
Computer Forensics in IP Theft Litigation and Investigations
John E. Davis and Alexander Parachini
Executive Counsel December 2010/January 2011
THE GREATEST THREAT to a company’s intellectual property often comes from its own employees and contractors. In a 2009 study, the Ponemon Institute reported that 59 percent of surveyed former employees admitted taking company data, and 67 percent admitted using or planning to use their former employer’s sensitive information to obtain a new job or benefit their new employer. With insider access, a company’s prized trade secrets and stores of customer personal information may be copied and transferred to a competitor or to an identity theft ring.
Automated Enterprise Data Mapping
Corey Reitz and Sarah Brown
Executive Counsel October/November 2010
FORTUNE 500 COMPANIES typically produce several tera-bytes of electronically stored information (ESI) annually. Each employee sends between 60 and 200 emails per day, and that comprises only a fraction of it. Whether stored on hard drives, databases, removable media, or backup tapes, the data is archived, replicated, and it grows exponentially. With the courts’ expansive interpretation of Federal Rule of Civil Procedure (FRCP) 34 and Judge Scheindlin’s recent revisiting of preservation obligations in Pension Committee v. University of Montreal Pension Plan, the attention and rigor required to address discoverable ESI truly is ever-expanding.
Court Clarifies its own Decision in a Key E-Discovery Case
Robert B. Friedman and David J. Kessler
Executive Counsel August/September 2010
ANYONE WHO HAS MANAGED electronic discovery in modern litigation knows that no matter how carefully you imp-lement document preservation procedures and supervise collection efforts, electronically stored information (ESI) can be lost. It doesn’t take negligent or wrongful conduct.
Information Tech and Legal Need to Function as a Team
R. Jason Straight and Regina J. Jytyla
Executive Counsel June/July 2010
Now that virtually all corporate information is electronically stored information (ESI) and subject to new discovery rules, and a sophisticated judiciary has become less tolerant of ESI “discovery indiscretions,” the roles of both IT and in-house legal has changed too. According to the authors, legal departments and IT should be working together as a team. This will have the effect of reducing spending for both routine information management and litigation response.
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Managing the Production of Structured Data
James Vint, David Turner and Colleen Casey Voshell
Executive Counsel February/March 2010
E-discovery has focused primarily on unstructured data, such as emails, documents stored on file shares, spreadsheets and other “loose” documents. But due to a number of factors, including amendments to the Federal Rules for Civil Procedure governing production of electronically stored information (“ESI”) and the increasing sophistication of litigants, the production of so-called structured data may become more routine in future large matters.
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Employ a Reasonable Method, Know Its Limits
Adam I. Cohen
Executive Counsel July/August 2009
Search is fundamental to discovery. Before discovery went digital, search typically involved lawyers or paralegals gathering information manually, primarily through interviews of custodians and witnesses, about where relevant paper documents were likely to be found. Usually lawyers would leave it to the custodian to provide the relevant documents. Sometimes lawyers would search through files provided by the custodian, or go to the location where the relevant documents were likely to be found, and then rummage around in the papers.
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How to Overcome Common Legal Hold Mistakes
Laura M. Kibbe and Bobby Balachandran
Executive Counsel May/June 2009
In the wake of recent court rulings, many businesses are having to rethink their litigation hold strategies or face potentially dire consequences. The hallmark of a defensible litigation hold strategy is a consistent and repeatable process that ensures the preservation and ultimate availability of all relevant paper and electronic information.
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Basic Email Management Policies
Chris Bradley
Most organizations today are at risk because they have minimal or no policies to control data that is shared through everyday communications. According to industry analyst Enterprise Strategy Group, more than 65 percent of an average company’s intellectual property is sent both internally and externally via email and resides somewhere within the messaging infrastructure.
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Protecting Attorney-Client Privilege When Emailing with Outside Directors
Katherine Gordon Maynard
To qualify for protection under the attorney-client privilege, communications of legal advice, including e-mail, must be made in confidence. When company counsel is communicating with a board of directors comprised of outside directors, thoughtful attention should be given to whether or not email communications with those directors are indeed confidential, and therefore privileged.
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A Proactive E-Discovery Process for Multinational Companies
Carlos Fuentes and Matthew Blake
When it comes to electronic discovery, multinational corporations face unique challenges, starting with the fact they must navigate rules and regulations across multiple jurisdictions. Data privacy laws in the EU, for example, generally are more restrictive than those in the United States and can make collecting and transferring e-discovery difficult.
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Strategies for Controlling E-Discovery Costs
Adam Cohen
Discussions about electronic discovery are largely dominated by two topics: potential sanctions and high costs. In the current economic climate, the latter has come to the fore. A wide range of strategies are used to address it.
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