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Ethics in E-Discovery: Part 1 of 4, Ethics Guidance Needed
The recent withdrawal of Boies, Schiller & Flexner from the Adelphia bankruptcy case, due to alleged disclosure and conflict problems regarding a document-management company, highlights the profession’s need for clearer guidance in dealing with outside electronic discovery vendors.
International E-Discovery
A Clash of Cultures and Law
In much of the world, countries have adopted legislation that protects the privacy of electronic information. These laws may prohibit the electronic transmission of information across borders, without the express consent of the subject of the communication. And this consent may be impossible to obtain: in many jurisdictions (notably, many countries in the European Union, which has adopted the E.U. Privacy Directive), it may be impossible to obtain the consent of employees; such consent is often considered to be inherently coerced due to the subordinate nature of the employee relationship.
This conflict between U.S. and European law is not merely legal; it reflects nothing less than a clash of cultures.
A Clash of Cultures and Law
In much of the world, countries have adopted legislation that protects the privacy of electronic information. These laws may prohibit the electronic transmission of information across borders, without the express consent of the subject of the communication. And this consent may be impossible to obtain: in many jurisdictions (notably, many countries in the European Union, which has adopted the E.U. Privacy Directive), it may be impossible to obtain the consent of employees; such consent is often considered to be inherently coerced due to the subordinate nature of the employee relationship.
This conflict between U.S. and European law is not merely legal; it reflects nothing less than a clash of cultures.
Ethics in E-Discovery: Part 2 of 4
Has Information Technology Raised the Level of Professional Competency?
Has Information Technology Raised the Level of Professional Competency?
Technology has changed the way we practice law. Searchable case law databases help us research faster, brief banks help us share work product, and document management systems help organize our cases. Many of these tools are exactly that: implements that help us work more efficiently and with greater organization. Lawyers can choose to use these technologies as they see fit.
Ethics in E-Discovery: Part 3 of 4
Ethics and Inadvertent Disclosure
Inadvertent disclosure of privileged information in discovery has become more commonplace as document productions grow more voluminous due to increasing use of electronic means of communication. More and more lawyers are being called upon—or, more appropriately, compelled—to produce millions of documents that at some point earlier in time were disorganized, existed only on computer hard drives and/or backup tapes, or had never before been put in a physical form. Lawyers not only have to deal with the sheer volume, but also with court rulings that sometimes hold that an inadvertent production of privileged documents constitutes a subject matter waiver as to an entire document collection. Consequently, there is tremendous pressure on the privilege holder to review all data for privilege.
Ethics and Inadvertent Disclosure
Inadvertent disclosure of privileged information in discovery has become more commonplace as document productions grow more voluminous due to increasing use of electronic means of communication. More and more lawyers are being called upon—or, more appropriately, compelled—to produce millions of documents that at some point earlier in time were disorganized, existed only on computer hard drives and/or backup tapes, or had never before been put in a physical form. Lawyers not only have to deal with the sheer volume, but also with court rulings that sometimes hold that an inadvertent production of privileged documents constitutes a subject matter waiver as to an entire document collection. Consequently, there is tremendous pressure on the privilege holder to review all data for privilege.
Ethics in E-Discovery: Part 4 of 4
Ethical Implications of Overseas Outsourcing
For years, companies have been outsourcing customer service duties to various countries around the world. Outsourcing refers to the process of sending work to an outside contractor, often in an effort to reduce costs. As emerging technology has rapidly expanded the roles of workers in places as far away as India, New Zealand and the Philippines, companies are outsourcing more technical jobs to foreign workers who have a high level of technical skill and English-language proficiency. Now, law firms and corporate legal departments have begun to take advantage of the cost savings and efficiencies presented by a foreign workforce.
Ethical Implications of Overseas Outsourcing
For years, companies have been outsourcing customer service duties to various countries around the world. Outsourcing refers to the process of sending work to an outside contractor, often in an effort to reduce costs. As emerging technology has rapidly expanded the roles of workers in places as far away as India, New Zealand and the Philippines, companies are outsourcing more technical jobs to foreign workers who have a high level of technical skill and English-language proficiency. Now, law firms and corporate legal departments have begun to take advantage of the cost savings and efficiencies presented by a foreign workforce.
Form of Production, Metadata and Embedded
The focus in Rule 34 is on the form or forms of production of the electronically stored information is sought in discovery. While this necessarily implicates issues about metadata and embedded data, it is not synonymous with it.
Rule 34 provides for discovery and production of all types of electronically stored information—whether visible content, embedded data or metadata
—but the Rule does not regulate the extent, if any, that metadata and embedded data must be produced in any particular case.
The focus in Rule 34 is on the form or forms of production of the electronically stored information is sought in discovery. While this necessarily implicates issues about metadata and embedded data, it is not synonymous with it.
Navigating the E-Discovery Maze
What Every Litigator Should Know
What Every Litigator Should Know
Electronic discovery has been around since the advent of the computer. Yet, it is only within the past few years, if even then, that most attorneys seem to have taken notice. By now, finally, most lawyers have heard the term and a few horror stories. The recent amendments to the Federal Rules of Civil Procedure have galvanized interest further. However, very few lawyers seem to understand the technical dynamics and details that define the electronic discovery universe. The devil is in the details—the technical details. Until you or your counsel deconstruct, comprehend, and harness those details, you will not own the e-discovery process. The process will own you.
This article explores that technical underworld, including what metadata is and why it matters, and the “ins” and “outs” of email, network drives, local drives, and backup tapes. While no article can completely map the maze, this one should at least get you started.
Not Your Father's Keeper Deposition
Choosing a Witness for the E-Discovery Rule 30(b)(6) Deposition
In the new age of electronic discovery, there has been much press (and hype) over the volume of data, issues unique to electronic records, and the various e-discovery tools available for both production and review. Relatively little attention has been paid to the "Keeper of Records" deposition (KOR) issues that must be addressed in the electronic age, however, including authentication of data (and overcoming hearsay objections) and determining whether the proffered data satisfied the discovery obligations of the producing party. Even less ink has been spilled on the decision-making required to choose the appropriate witness for electronic KOR depositions. This article highlights some of the issues that litigators and parties face when making the latter decision.
Choosing a Witness for the E-Discovery Rule 30(b)(6) Deposition
In the new age of electronic discovery, there has been much press (and hype) over the volume of data, issues unique to electronic records, and the various e-discovery tools available for both production and review. Relatively little attention has been paid to the "Keeper of Records" deposition (KOR) issues that must be addressed in the electronic age, however, including authentication of data (and overcoming hearsay objections) and determining whether the proffered data satisfied the discovery obligations of the producing party. Even less ink has been spilled on the decision-making required to choose the appropriate witness for electronic KOR depositions. This article highlights some of the issues that litigators and parties face when making the latter decision.
Preparing Your Corporation for the New Federal Rules
Create a Data Map
The recent amendments to the Federal Rules of Civil Procedure now require litigants, at the very earliest stages of the case, to know what potentially relevant electronically stored information (“ESI”) they have, where it is, how it is being maintained and what it will cost to produce it. In particular, the new Rules force the parties to define their ESI as either readily or not readily accessible (the latter may qualify for an exemption from discovery), based on the burden and expense associated with its retrieval. Businesses able to show that certain information is not readily accessible may succeed in shifting significant costs of production to their opponents or in forcing withdrawal of their opponents’ discovery requests.
Create a Data Map
The recent amendments to the Federal Rules of Civil Procedure now require litigants, at the very earliest stages of the case, to know what potentially relevant electronically stored information (“ESI”) they have, where it is, how it is being maintained and what it will cost to produce it. In particular, the new Rules force the parties to define their ESI as either readily or not readily accessible (the latter may qualify for an exemption from discovery), based on the burden and expense associated with its retrieval. Businesses able to show that certain information is not readily accessible may succeed in shifting significant costs of production to their opponents or in forcing withdrawal of their opponents’ discovery requests.
