New Rule 5.2 Formalizes Privacy Protections for E-Filed Documents

The Advisory Committee on the Federal Rules of Civil Procedure recently created a new Rule that is at least tangentially related to e-discovery.  The new Rule 5.2 addresses privacy concerns for documents e-filed in federal court.  The new rule provides guidance on what information should be redacted, what may be filed under seal and how to file a single "reference list" containing all confidential information redacted from other documents.  Notably, a party waives the right to the protection of the Rule if it files its own confidential information without redaction.  While some courts, such as  the Eastern District of Wisconsin, had already adopted similar rules on a local basis, the Committee has now made them applicable to all federal civil courts.  The new Rule went into effect on December 1, 2007.


Electronic Communication: Not just e-mail anymore

When a preservation order specifies that "electronic communication" is to be preserved,  there is a common misconception that this phrase refers only to e-mail correspondence.  Not so, my friends.  There are a bevy of other versions of electronic communication that are potentially relevant to the standard forensic collection process.

They include:

  • Instant message communications (Yahoo! Messenger, MSN Messenger, Google Talk, AOL Instant Messenger and Skype, to name a few.)
  • SMS or Text Messaging (not just for teenagers anymore.)
  • Voice over Internet Protocol (VoIP)
  • Fax communications directly sent and received on a company's computer
Companies should be sure to make their computer forensic expert aware of what third party software has been installed and used on company computers so that all relevant electronic communications can be secured and preserved. For a full analysis of the importance of securing all types of electronic communication, see this helpful article from Metropolitan Corporate Counsel.

Tracking E-Discovery Cases

With the availability of new technologies, tracking e-discovery cases does not have to be a chore. Although many blogs and websites follow the trail of the latest e-discovery developments, only a few services can actually deliver the desired results.

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2007 E-Discovery Cases - Year in Review

Kroll Ontrack, an electronic discovery and computer forensic service provider, has put together an interesting analysis of the electronic discovery case law that has been decided since the new federal rules were enacted a year ago.

According to Kroll, of the approximately 105 e-discovery opinions reported since December 1, 2006, the major issues involved in these cases break down as follows:

  • 25% of cases addressed discovery requests and motions to compel
  • 24% of cases addressed spoliation/sanction
  • 23% of cases addressed issues involving the form of production
  • 9% of cases addressed preservation/litigation holds 
  • 7% of cases addressed attorney-client privilege and waiver 
  • 6% of cases addressed production fees 
  • 6% of cases addressed admissibility of electronic evidence

The moral of the story?  75% of the cases analyzed by Kroll Ontrack dealt with discovery requests, motions to compel, the destruction of electronic data, sanctions, and the format in which electronic data must be produced.  E-discovery is not going away any time soon and corporations must have a game plan and a document retention policy in place that permits them to respond efficiently and cost effectively to document requests and motions to compel that request electronic data.  Without a game plan, corporations could, quite unintentionally, find themselves in the quarter of the cases that discuss sanctions and the spoliation of evidence.

A Little Light Reading

For those of you with time on your hands and who are interested in the IT aspect of ediscovery, there's a new book entitled "Never Talk When You Can Nod. Compliance, eDiscovery And Enterprise Content Management Systems". Authored by Andrew Chapman, Director of the EMC Documentum Compliance Solutions Group, EMC Corp., the book attempts to delineate the critical relationship between enterprise content management (CM) and ediscovery (ED) issues ...

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The Money Pit

In their book "Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis," authors Jeffrey Ritter (a recipient of the American Bar Association’s 2004 Cyberspace Law Excellence Award) and Karen Worstell (Chief Information Securty Officer at Microsoft) assert that the greatest economic risk companies face with electronic discovery is choosing the wrong law firm. Conversely, they explain how law firms can utilize the Model RFI (Request for Information) to assess electronic discovery readiness by evaluating their resources, services and tools to better serve their clients. Continue Reading...

The Five (or Six) Steps of Electronic Discovery

When a client is hit with a request for electronically-stored information, it is useful to think globally about what has been set in motion--a discovery process that will extent over some period of time and encompass some universe of information.  There are five major steps that the client will need to be prepared for: Continue Reading...

Standardizing Production in the E-Discovery Industry: Can it be Done?

One area of the electronic discovery process that is particularly time consuming and costly is the transfer of electronically stored information (ESI) to and from applications involved in different phases of the discovery process.  For example, if parties agree to produce electronic information in TIFF format, Excel Spreadsheets, PDFs and Outlook e-mails may be required to be converted to TIFF files.  The conversion to a single format can be extremely costly and time consuming.  In October 2007, the Electronic Discovery Reference Model (EDRM) announced a new Extensible Markup Language (XML) standard for the easy transfer of electronically stored information.

EDRM is an industry group that was created to develop practical standards for the e-discovery industry.  EDRM hopes that as the XML standard is adopted in the industry, the e-discovery process will become more efficient and effective as the movement and storage of electronically stored information becomes more streamlined. For a description of the XML standard, and for more helpful information, see this article from Newstex blog and LexisNexis.  And stay tuned to see if theory becomes reality with the proposed standard. 


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A Celebratory Glass of Champagne?

Happy Anniversary Amendments!

On this day, the one year anniversary of the effective date of the Amendments to the Federal Rules on electronic discovery, I would like to take the opportunity to thank all those who worked so diligently for so many years to develop rules that essentially created a new niche in the world of litigation. After all, I (together with many of my compatriots) have spent the better part of the last three years developing materials to educate our firm lawyers, speaking at a variety of seminars on how businesses should prepare themselves for e-discovery, learning how to talk the talk of technology to interface between IT folks and lawyers -- and yes, it remains a challenge -- and advising clients on how to plan for the inevitable production of electronic information, and then producing it. I've been busy, and that's good. But the question remains, are we better off than before the Amendments? Continue Reading...