E-Discovery Bytes

10 Things You Should Never Put in an E-mail

kperhach@quarles.com (Katherine Perhach) — Fri, 05 Dec 2008 10:00:00 -0600

Want a hint as to the types of phrases found in emails that are going to catch the eye of a lawyer looking for a smoking gun in a lawsuit?

Roger Mathus of Death by Email quotes Elizabeth Charnock, CEO of Cataphora, on 10 things you should probably never write in an e-mail:

“I could get into trouble for telling you this, but…”
“Delete this email immediately.”
“I really shouldn’t put this in writing.”
“Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
“She/He/They will never find out.”
“We’re going to do this differently than normal.”
“I don’t think I am supposed to know this, but…”
“I don’t want to discuss this in e-mail. Please give me a call.”
“Don’t ask. You don’t want to know.”
“Is this actually legal?”

Ms. Charnock developed her "top ten list" based on e-mails and documents her company has analyzed for clients.

After reviewing Ms. Charnock's list, Matus advises, "If you find yourself typing one of these phrases, perhaps you should delete the entire e-mail." In other words, when in doubt, think before you press that "send" button.

Do you have other favorites? Feel free to share them with us in the Comments.

Predicting the Course of E-Discovery in 2009

jschaak@quarles.com (John Schaak) — Thu, 04 Dec 2008 14:01:00 -0600

As the new year approaches, many are wondering what e-discovery will look like in 2009. The question is now generating some interesting discussion in the blogosphere. I think Ralph Losey hit the key issue on the head this last week in a comment posted to EDD Update. The thrust of the post is that litigation will be on the rise next year, but that corporate budgets will be tighter, leading everyone to look for ways to make the e-discovery process more efficient and cost-effective.

In discussing the effects that leaner budgets will have on the e-discovery process, Losey makes, among others, two important predictions. The first is that we will see "an explosion of metrics and proportionality arguments to drastically reduce the amount of ESI to be reviewed and produced." The second is that in-house counsel may "finally become selective and pick new lawyers that get it, instead of their old stand-byes that don't." On the latter point, he further offers his "doubt [that] the budget will permit the cronyism system to continue."

I fully agree with Losey's prediction that companies will have to rethink their e-discovery choices, but I think there is more to be said about how to make smart decisions when it comes to e-discovery. To be sure, every company - and outside counsel - should already be looking at ways to achieve measurable efficiencies when it comes to e-discovery. And certainly, companies will be taking a harder look at the outside counsel they hire to do this work. As Losey suggests, some firms "get it," while others don't. A law firm with experience can really make the e-discovery process much more efficient, and much less expensive. For this reason, we're already seeing many companies move towards hiring national e-discovery counsel. I am confident that these trends will continue, especially in a tight economic market.

I am concerned, however, that tighter budgets may lead to the slowing, or even the reversal of another very important trend - that is, the trend towards taking a proactive approach to e-discovery issues. A quick example illustrates the point. In recent years, many companies have realized the benefit of creating a plan for managing, and responding to discovery requests that call for their electronic data. As part of that process, companies map their networks, so they know where their data is, and develop protocols for responding to requests for electronic discovery. As budgets tighten, some companies may not be willing to pay the up-front cost of developing these data management plans. In doing so, companies who are trying to save money may be making a costly mistake. The worst time to begin the process of understanding your network - where you have data, how it is stored, how to retrieve it efficiently - is when you are in the middle of litigation and have to respond to discovery requests. Litigation moves too quickly and gathering electronic data can be a time consuming process. In the rush to comply with demands for electronic discovery, those who have not planned ahead will not be able to think through their response as thoroughly, and will almost certainly see inefficiencies, work that has to be redone, or costly errors, as a result.

Making the right e-discovery decision will often mean different things for different companies. What is universal, however, is that the best decisions are usually made by those companies that have the best advice from those who really understand the e-discovery process. As Losey suggests in his post, those who understand the process will be the ones who have the competitive edge. That will be particularly true in the tight economy of 2009.

The Corporate "Know It All"

phutter@quarles.com (Patricia Hutter) — Wed, 03 Dec 2008 11:39:24 -0600

Our mothers always told us that “no one likes a know-it-all.” However, in today’s litigation environment, where electronic discovery and authentication of data have become important and too often dangerous, a know-it-all is exactly what companies facing litigation need. As Jonathan Sablone points out in his article, “Not Your Father’s Keeper Deposition”, litigators are now routinely using Rule 30(b)(6) depositions as a tool to authenticate data, determine whether another party has met its discovery burden and “to hijack entire cases”. See “Not Your Father’s Keeper Deposition." As a result, as Sablone accurately points out, the choice of the designated 30(b)(6) witness in the context of electronic and e-discovery is a decision that should be taken very seriously. The failure to do so can not only lead to unnecessary time and expense but, more importantly, can potentially endanger a party’s case.

Rule 30(b)(6) depositions allow an attorney to notice the deposition of an entity and the burden then shifts to the entity to designate one or more persons to testify on its behalf about the matters at issue. An entity can designate one person or it can designate multiple people and specify the matters upon which each person will testify. With matters relating to electronic records and e-discovery, savvy companies will take the time and expend the effort required to designate one or more witnesses who can testify about the relevant matters in a manner that is to the company’s advantage. This may be one “know-it-all” or several, each of whom is the “know-it-all” about a particular subject. Rule 30(b)(6) requires the witness to testify about information known or reasonably available to the organization. In other words, first hand knowledge of a matter is not required. This means that the company “know-it-all” can be prepped, thereby allowing a company to designate a person or persons that will make a “good witness.”

Obama To Give Up His Blackberry. Should You?

jschaak@quarles.com (John Schaak) — Tue, 02 Dec 2008 10:17:00 -0600

The New York Times has reported that President-elect Barack Obama will likely give up his Blackberry when he takes office in January. According to the Times, Mr. Obama - like legions of other professionals - is all but addicted to his Blackberry. Yet he is giving his up. So should you be thinking about trading yours in too? Going Luddite, if you will?

You may be stretching your thumbs right now, getting ready to send a lengthy and exasperated comment from your Blackberry. So I'll just start out by saying the short answer is no, you don't need to give up your Blackberry; and no one will try to take it from you. However, the Times article about Mr. Obama and his reluctant parting of ways with his Blackberry reminds us that we all need to be wary of how we use ours.

As the Times article explains, Mr. Obama will likely give up his Blackberry for two reasons. The first is security; anything can be hacked. The second is "the Presidential Records Act, which puts his correspondence in the official record and ultimately up for public review, and the threat of subpoenas." So, '[f]or all the perquisites and power afforded the president, the chief executive of the United States is essentially deprived by law and by culture of some of the very tools that other chief executives depend on to survive and to thrive."

Now, we everyday professionals - who really are that dependent upon our Blackberrys - do not have to worry about the Presidential Records Act subjecting all of our emails to public scrutiny. That is true. However, the data on everyone's Blackberry is subject to discovery in civil litigation and regulatory and criminal investigations. So many seem to forget this, or just don't think about it. These days, the smoking guns that win and lose cases, or make them for the government, are usually found in electronic correspondence. Email is just such a casual means of communicating; particularly when sent on a Blackberry. Most folks aren't thinking about the fact that they are creating a record when they fire off an email. And if you think lawyers can't get the information you have on your Blackberry, well, "yes we can." So if you're going to continue using your Blackberry, and you know you are, the tip for the day is to be smart about it. Some of the best advice I received in law school was from my Evidence professor, Daniel Blinka. He said, whenever you send a letter to another party, think about whether you'd want to see that letter appear at trial with a sticker on it that says "Exhibit A." In today's high-tech world, I would take that a step further and say you should imagine that exhibit sticker on everything you write. And that goes double for your emails, since that's where the good lawyers will look first.

Cloudy Days Ahead for E-Discovery

apc@quarles.com (Anthony P. Chan) — Mon, 01 Dec 2008 10:05:00 -0600

When it comes to e-discovery, your IT department and forensic experts may be ill-equipped to search, organize, and produce electronic files and documents that are outside the realm of the firm's internal network infrastructure.

The proliferation of vendors that offer web-based computing solutions compounds this problem. Commonly referred to as "Software as a Service" (SaaS), they range from simple email accounts to office suites to whiteboarding and other types of collaborative tools.

This technological alphabet soup in turn facilitates cloud computing and/or utility computing. Basically, it translates into a user's ability to access services from the Internet without having control over the technology infrastructure that supports them. From the IT management perspective, it's like the Wild West of computing. Here's a brief discussion on cloud vs. utility computing.

Lawyers are increasingly mobile due to the shear number of devices, applications and services that connect people, ideas and places. Invariably in-house software may be viewed as inadequate due to various reasons-- system downtime, malfunctioning, subpar performance, and even personal preference. Much to the chagrin of IT staff, users quite often resort to applications that fall outside of the firm's offerings. After all, no firm can acquire and support a large number of applications without a significant drain on IT resources.

Without evolving laws dealing with this type of computing environment, significant barriers will present themselves in the context of e-discovery. First, SaaS providers typically do not have document retention schedules nor are they obliged to initiate litigation holds. Second, information stored on 3rd party systems (databases and server farms) may require subpoenas for retrieval.

In the foreseeable future, e-discovery will no longer involve solely the litigation parties and their respective technical gurus. A multitude of Internet services and ASPs could conceivably be targets of discovery and the cost could escalate with no relief in sight.

Texas Court Says No Way to Wikipedia Article

jwilson@quarles.com (Joseph O. Wilson) — Wed, 26 Nov 2008 11:11:14 -0600

Into the "no duh" category of cases falls a recent Texas appeals court decision upholding the conviction of Manuel Flores for cocaine trafficking. Flores v. State, No. 14-06-00813-CR (Tex. App., Oct. 23, 2008). Flores contested his conviction on the grounds that he had been subjected to the "John Reid technique" of interrogation, which he claimed could lead to false confessions. As support, he asked the trial court to take judicial notice of the Wikipedia article on the technique. The court properly declined to do so.

Apparently borrowing a page from the Cheech and Chong primer on drug trafficking, Flores was busted when he went to pick up a package of 38 baskets made of straw into which 11 kilos of cocaine had been "intricately woven." (Pop culture mavens will recall the scene in Cheech and Chong's 1978 film "Up in Smoke" where the two successfully drive a van constructed entirely of marijuana across the border). Interestingly, as of this writing, Wikipedia doesn't contain an entry for the "John Reid technique," but does contain an entertaining entry for "Up in Smoke."

To establish the inherent unreliability of Wikipedia, the court cited a Wall Street Journal article, which said: "Anyone can edit [a Wikipedia] article, anonymously, hit and run. From the very beginning that has been Wikipedia's greatest stregth and its greatest weakness." James Glerick, Wikipedians Leave Cyberspace, Meet in Egypt, Wall St. J., Aug. 8, 2008, at W1. That unreliability is highlighted by the extensive disclaimers contained on Wikipedia, including this one: "The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields."

Thus, it would appear that, at least as far as Texas courts are concerned, Wikipedia is far from being the authoritative source that criminal defendants might think.

Thanks to BNA Digital Discovery and E-Evidence for flagging this case.

It should also be noted that the Eighth Circuit recently reached the same conclusion in a case with less entertaining facts. Basada v. Mukasey, No. 07-2276 (8th Cir., Aug. 29, 2008).

Beach Reading from the SEC

jschneid@quarles.com (Joshua Schneider) — Wed, 19 Nov 2008 15:52:48 -0600

The Enforcement Manual, or "Red Book," of the SEC (that's right: the SEC) was released to the general public this October and it is the perfect read if you're being investigated by the SEC or know someone who will be. It contains simply a wealth of helpful information on what the SEC wants in terms of electronic production. Although there are a number of relevant sections, two of the particularly helpful being sections 3.2.6.2, "Form of Production," and 3.2.6.2.3, "Format for Electronic Production of Documents to the SEC," both of which provide some guidance for those responding to an SEC subpoena. Now, in addition to the two standard responses to SEC subpoenas of (1) sending everything in every possible format, including scans of napkins with humorously-shaped and possibly discoverable stains and (2) sending nothing and hoping no one notices, the subpoenaed have a third option: send materials in precisely the formats that the SEC wants.

For those of you anxious to sink your teeth into the delicious prose of the Security and Exchange Commission, the complete manual is available here. (You will be relieved to know that the most recent SEC offering is without the tacked on romantic subplot that made Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date such a disappointment.)

Quality Not Quantity

mharris@quarles.com (Monika Harris) — Fri, 14 Nov 2008 17:08:56 -0600

The adage that "quality, not quantity matters" certainly applies to the maintenance of business records. Businesses often devote numerous hours to developing lengthy schedules defining what records must be kept and for how long. While the development of a comprehensive schedule is important, the quality of the records to be maintained is just as important. Records must be of a sufficient quality to allow companies to defend against legal claims.

One important quality consideration is how to store the records. Records should be stored so that records can be easily located when necessary to respond to a discovery request. Failure to do so can result in burdensome costs.

In In re Brand Name Prescription Drugs Antitrust Litg., 1995 WL 360526 (N.D. Ill. 1995), an Illinois district court required a defendant corporation to sort through volumes of stored email at its own expense. Pursuant to the plaintiff's discovery request, the records had to be formatted before the plaintiff could search and retrieve the email records. The court held that the defendant should bear the discovery cost of $50,000 to $70,000. Reasoning that the translation of data into a useable form by the discovering party is a foreseeable burden because electronic records should be available with the same openness as traditional forms.

As in this case, companies face increasing requests to produce electronic records. However, the take away is that ineffective storage can be risky and costly for both traditional records and electronic records. Therefore, retention programs should consider the quality of records to minimize risk and high costs associated with discovery.

My Boss May Own My Facebook Page !?

wakbar@quarles.com (Wendy Akbar) — Thu, 13 Nov 2008 22:32:43 -0600

Social networking websites have taken the world by storm. On MySpace and Facebook, users lovingly chronicle the intimate details of their lives, post their current relationship status and feelings, provide spontaneous opinions, and upload off-the-cuff photographs. Even the more professional networking site LinkedIn, is now trying to become more social by adding a blog application. Unfortunately, users often post without considering the trail of evidential bread crumbs they leave in their wake. Just last week, Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook. And today, investigators visit these sites as a matter of course when looking into an individual for purposes of employment, college admission, background checks for criminal activity, and so on.

This growing use of social network information raises two important questions for the corporate world in this new age of electronic discovery:

1. Are social networking sites accessed using an employer's computer, fair game when it comes to electronic discovery and document production?

2. If social networking pages are produced as part of electronic discovery, would this information then be admissible in court?

First, employees will notice that their personal workplace computers sometimes "remember" their MySpace or Facebook password -- not to mention gmail, hotmail, yahoo, and other accounts -- when they sign on. That's because the website browser takes note of and saves the password. But here's the catch. Because the password exists on the employer's hard drive, that password and therefore access to the social networking page, are literally within the possession, custody, and control of the employer. With the right IT know-how, the employer can easily access the site. The unanswered question is, is the social network page in the legal "possession, custody and control" of the employer? What happens when the employee or employer gets sued, and the social networking page becomes responsive to document requests?

It may depend on whether the adverse party is the employer or a third entity. In the case of the employer being sued, perhaps the employee is alleging discrimination in the workplace, and has a discussion on his Facebook page about how he made up the whole story. Does the employer have the right to access the Facebook page on its own? If not, does the employer have the right to demand images of the page in their document requests? The employer's argument would be that by accessing the page at work, the employee waived any right to claim that the site is private and personal. An even broader argument is that by posting personal information on a world-wide web, the employee has automatically given up any pretense of personal privacy at all, to the world at large.

A different implication arises if the employer is being sued by a third party for, say, legal malpractice. The third party does not have direct access to the Facebook page or the password. Does the third party have the right to request the employee's Facebook website through document requests to the employer? The employer, who has the password in its records, may be able to access the Facebook page. The answer hinges on whether the Facebook page is in the possession, custody or control of the employer, thereby requiring the employer to produce it to the third party.

Second, even assuming that the Facebook page must be produced, it still may not be admissible in court. Because websites are amorphous creatures, one must take a "snapshot" of the page in order to preserve a site as it existed at a particular moment. This process raises numerous evidentiary issues under the admissibility rules for standard electronically stored information. This includes considerations of relevancy, hearsay, authenticity, the "best evidence" rule and undue prejudice. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. May 2007).

In sum, more people sign up for social networking websites every day. It is only a matter of time before attorneys routinely request social networking pages during certain types of lawsuits. The law is still uncertain as to when and whether such pages must be produced, and whether those pages are going to be admissible in court. Employers should be mindful of these issues, and should impress upon their employees the dangers of posting inappropriate materials on their social networking pages. Similarly, employees should be aware that what they post -- even if they explicitly limit access to their page to friends only -- may someday come back to haunt them.

Slaying the e-Discovery Dragon: Are Law Schools Up to the Task?

ebolkcom@quarles.com (Elizabeth B. Chamberlin) — Mon, 10 Nov 2008 13:46:23 -0600

Ask any lawyer whether the typical law school course is "practical," and you'll likely receive a resounding "No!" - after they stop laughing, of course. But bloggers have stumbled onto a novel idea - why not teach law students practical skills for dealing with e-discovery issues before they are sent out into the legal community? In a recent article, William Hamilton, a commercial litigator at Holland & Knight and an adjunct professor at the University of Florida's Levin College of Law, pointed out that "e-discovery failures continue, apparently unabated" and "many of the dramatic e-discovery failures of the past two years have involved firms at or near the top of the profession." See The E-Discovery Crisis: An Immediate Challenge to Our Nation's Law Schools, November 5, 2008." Some experts believe that "attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession." Id. So why not educate the next generation of lawyers about the best methods for dealing with e-discovery? These law students can bring a new level of e-discovery competence to law firms, government agencies, and clients. Id. It may be the best method by which the profession can slay the e-discovery dragon and avoid the pitfalls and sanctions of the "e-discovery crisis."

In his article, published as a guest feature on the e-Discovery Team blog and the Paralegal Profs blog, Professor Hamilton does a thorough analysis of the impact law schools can have on the legal profession by teaching courses on e-discovery. Hamilton himself teaches a course on e-discovery at the University of Florida's Levin College of Law. He points out that most law schools are "blithely continuing to teach civil procedure as if nothing or little is happening 'out there.'" Id. All while the civil justice system "flounders under the weight of digital revolution." Id. Hamilton compares the inaction of law schools to "fastidiously arranging the deck chairs while the Titanic goes under." Id. He calls on law schools to educate young lawyers about the importance of e-discovery. After all, law schools are best equipped to address the e-discovery crisis, because they "operate in an educational environment absent crushing time and business restraints. Law students have the time to think, work, and struggle with e-discovery in a tolerant, incubating environment." Id. Practicing lawyers, on the other hand, are forced to attempt to learn best practices for dealing with e-discovery through CLE programs and seminars, all while trying to deal with the "crush of billable hours and the economics of the modern law firm." Id. Hamilton goes on to describe what a "practical" e-discovery course would look like. He insists that "teaching e-discovery means working through each of the e-discovery phases outlined in the EDRM model with similar hands-on experimental approaches." Id. He also emphasizes that the students must not be lectured, they must "do." In his own course, Hamilton emphasizes practical experience, and the students conduct mock "interviews" using IT professionals from the University of Florida's Legal Technology Institute as their subjects. See Hamilton's article for a full walk-through of a course in his classroom.

Professor Hamilton's point is a good one: the legal profession can begin to stop the bleeding from the e-discovery crisis by insisting that the new generation of lawyers be educated about e-discovery issues. Some law schools, like the Levin College of Law at the University of Florida, are already on board. But how likely are law schools across the country to answer Hamilton's call? After all, law schools have been historically slow to offer practical coursework for their students. But as sanctions from e-discovery violations build, law schools may be forced to pull their heads out of the sand and address the critical role they could play in educating the profession about e-discovery. Only time will tell if law schools will answer the call.

Financial Crisis - Do You Know Where Your Records Are?

kperhach@quarles.com (Katherine Perhach) — Mon, 13 Oct 2008 23:07:27 -0600

With the meltdown of the world's financial markets over the last few days, it should come as a shock to no one that pension holders, stock owners, and state governments are suing or considering lawsuits against various actors in the financial crisis, including investment banks, bond ratings agencies, and agencies such as Fannie Mae and Freddie Mac.

As noted in this article in Information Weekly, these pending and proposed lawsuits are going to require financial services companies to produce reams of e-mail and other communications, not to mention transaction records and other financial data. Is your company ready to deal with the production of its electronically stored information? If you were asked tomorrow to do so, could you?

Shameless Plug: E-Discovery Seminar/Webinar

kperhach@quarles.com (Katherine Perhach) — Wed, 24 Sep 2008 19:26:47 -0600

Our very own, Kelly Twigger, will be one of the presenters at "Law and Practice of Electronic Discovery," an electronic discovery seminar sponsored by the Milwaukee Bar Association, the Eastern District of Wisconsin, and Marquette Law School on November 6, 2008. Topics include litigation holds and the preservation of electronically stored information, responding to requests to produce electronic information, best practices for reviewing electronic information, and ethical issues involved with the inadvertent production of privileged documents. The seminar also includes a mock discovery session offering you the chance to observe lawyers in action as they demonstrate a discovery conference, a motion in limine hearing and the examination of an expert witness on electronic discovery issues.

Here is a link to the seminar information including information on how to view the seminar via the MBA's live webcast.

Discovery of electronically stored information is unavoidable. With more than 90% of records now being created in a digital format, plaintiffs, defendants, and third parties must be knowledgeable about the myriad of legal and technical issues affecting electronic discovery.

What U Txt Can Hurt U OMG!

jwilson@quarles.com (Joseph O. Wilson) — Tue, 20 May 2008 08:44:44 -0600

It would appear that Detroit public officials have a real problem with text messages. In addition to the current indictment against mayor Kwame Kilpatrick involving his alleged cover-up of text messages linking him romantically with his former chief of staff, text messages play a central role in another current case with Kilpatrick ties, and were the subject of a recent court decision that outlined how they would be disclosed.

The problems began with allegations of a 2002 party at the Kilpatrick's mansion involving exotic dancers. When one of the dancers who claimed that she was at the party was shot to death in 2003, her family filed a $150 million lawsuit against the city. The family claimed that the shooting was an attempt to cover up the dancer's role in the party, and further claimed that a Detroit police officer was the shooter. The family issued two subpoenas to SkyTel, which supplied the city's text messaging devices. The subpoenas sought text messages to and from all city officials and employees on the night of the shooting and text messages from a list of 34 city officials for certain periods between 2002 and 2007. The court allowed discovery of the text messages from the night of the shooting, but narrowed the second request.

The court issued an order on March 20, 2008 setting forth a procedure for discovery of the text messages. The procedure seems well-reasoned, and strikes a sensible balance between the family's right to access information relevant to its claim, as well as the city's interest in maintaining evidentiary privileges and protecting confidentiality in what is, obviously, a very sensitive matter.

The court's order sets forth the following steps:

1. The city must provide Skytel with the PIN number used by every city employee so that Skytel can access the accounts.

2. Next, the text messages will be turned over to magistrate judges (on CDs, not in paper format, the court is careful to note) for review and an initial determination as to discoverability under Federal Rule of Civil Procedure 26(b)(1). The magistrate judges will also have the authority to set reasonable limits on the scope of discovery sought.

3. After the magistrate judges issue their initial determination as to discoverability, the city will have a chance to make any objections, which will be ruled upon by the district court judge.

4. Any text messages that the court orders produced will be maintained subject to a stipulated protective order, and returned to Skytel at the conclusion of the case.

This sounds simple, but is sure to lead to many squabbles given the high stakes of the proceeding. We will keep track of developments to see how the judge's procedure plays out.

Court OKs Disk Mirroring Despite Confidential Client Matter

apc@quarles.com (Anthony P. Chan) — Wed, 07 May 2008 15:58:20 -0600

In a recent case (Ferron v. Search Cactus, L.L.C., 2008 WL 1902499), the the District Court for the Southern District of Ohio ruled that information stored on a computer that contained content protected by the attorney-client privilege presented insufficient reason for a party to prevent the computer from being mirrored for electronic discovery purposes.

The plaintiff in the case case was an attorney who utilized his home and office computers for storing and working with information related to the representation of clients and the maintenance of lawsuits, but who also used his home computer to store his personal banking and credit card information. He objected to the defendants' discovery request so that the defendants could analyze the electronic evidence in question.

The court rejected plaintiff's arguments that by fulfilling defendants' request, irrelevant personal information would be revealed. The court further rejected the plaintiff's argument that there would be a waiver of the attorney-client privilege if a third party, namely the forensic expert, were allowed the see information on the computer.

Instead, the court found that the plaintiff attorney's failure to fulfill his “duty to preserve information because of pending or reasonably anticipated litigation", a duty that was "independent of whether defendants requested a litigation hold," justified the defendants' discovery request.

The court ordered the defendants' expert to review his findings in confidence with plaintiff prior to making any findings available to defendants. At that time, the plaintiff could identify for deletion any information that was irrelevant and could also create a specific privilege log of any relevant information for which he claimed privilege. After this review was completed, the expert was ordered to remove the information claimed as privileged and to provide all other information to the defendants.

Given the court's decision, it appears that confidential information residing on a computer will not preclude wholesale disk drive duplications for discovery purposes. However, there are best practices to safeguard data and to ensure that you are not commingling personal and client data:

Use two computers-- one for personal and the other for client matters. If one computer is more convenient, install additional hard drives (internal or external) to be used with the same computer. External hard drives have the added benefit of portability, but they also pose a higher risk of accidental loss or theft. So encrypt your data if possible.

Use separate email accounts for personal and client matters. That way no one else (not even the forensic expert) has to read about your beach party in conjunction with your client's information, unless, of course, the other party has met the burden of proving your sandy outing is relevant to the discovery in question.

Create a matter-centric workspace by using separate folders for individual client matters. Information pertaining to a client matter can then be managed more easily due to improved document retrieval.

Text Messages Live Forever? Or no?

ssalmon@quarles.com (Susan C. Salmon) — Fri, 02 May 2008 11:43:47 -0600

Interesting Slate article about some of the nuts and bolts behind retention of text messages. . . how long they are stored on your phone, how long your wireless carrier will store them, and how your corporate record retention policies might affect those issues (as Detroit Mayor Kwame Kilpatrick recently learned the hard way).

E-Discovery "Wake Up Call"

ssalmon@quarles.com (Susan C. Salmon) — Wed, 30 Apr 2008 14:49:23 -0600

Findlaw posted a great article that nicely digests many of the new e-discovery obligations imposed by the revisions to the Federal Rules and analyzing their ramifications for corporate America and the U.S. government if entities don't "wake up" and take immediate proactive steps to get their electronic information house in order for future litigation. The author also lists the litany of excuses offered by parties - and rejected by courts - for a party's failure to comport with e-discovery obligations. The article is exactly what it purports to be: a wake-up call. It doesn't go into exhaustive detail, but it should alert the unwary to the potential landmines in the developing e-discovery landscape. Definitely worth a quick read (or a quick link) as one step to make sure you, your attorneys, or your clients are taking appropriate measures to avoid costly e-discovery snafus...or sanctions.

Portable Devices - Another Source for E-Discovery

apc@quarles.com (Anthony P. Chan) — Tue, 01 Apr 2008 11:07:55 -0600

In my earlier post "Hosted Apps: A Source for E-Discovery" I pointed out that "hosted applications" are a good source of information when deposing 30(b)(6) representatives and drafting requests for production of electronic information. But what about information buried in portable storage devices such as USB drives, flash drives, hard drives, iPods, PDAs, CD-ROM, DVD drives and even cell phones?

These little gadgets have become very popular tools for transferring data among computer systems and networks. What would be the smoking gun that indicates the deposed party actually utilizing such devices and denied possession of them?

The Windows computer platform may be tight in security but it also contains a trail of bread crumbs that may unveil the presence of some portable devices. Take a look at the Windows registry. It is essentially a database that resides on the computer containing critical information and settings for all the hardware and operating system software, among other things. Each time a portable device is attached to the computer (via a USB, serial / parellel port), Windows grab the information regarding the device manufacturer and serial number if it has one and stores it in its registry.

The registry also keeps a date stamp associated with the last time the portable device was written. So unless the deposed party is a computer forensics expert who knows how to hide her tracks, the Windows registry would likely provide a glimpse of whether the other party is forthright with producing the content you seek.

Hosted Apps: A Source for E-Discovery

apc@quarles.com (Anthony P. Chan) — Thu, 13 Mar 2008 14:14:10 -0600

In recent years, the "hosted applications" concept has gained popularity among some small to medium-sized firms due to significant savings from the high costs of software and hardware maintenance. Such applications should be considered when deposing 30(b)(6) representatives and drafting requests for production of electronic information.

Hosted applications, aka SaaS (Software as a Service), is a software application delivery model where a software vendor develops a web-based software application and hosts and operates the application for use by its customers over the Internet. Typically, customers do not pay for owning the software itself but rather for using it.

From a firm's perspective, the advantages of this type of arrangement are numerous albeit potential privacy and security issues (important/sensitive data being stored on the vendor's servers).

Platform neutral - applications and documents can be accessed from any computer.
No installation - reduced or eliminate software and hardware maintenance.
No downtime - applications and documents can be accessed 24 x 7 from anywhere.

Visiting wikkidapps.com can provide a sense on the kind of SaaS applications that are available today-- from calendaring tools to spreadsheets to word processors. Furthermore, internet software vendors can be setup in a foreign country and may present some challenging international e-discovery issues. Nevertheless, data repositories reside in hosted applications can prove to be fertile grounds for e-discovery, so include them in your list of applications to learn about from an opposing party.

Qualcomm v. Lawyers: Let's Get It On!

jwilson@quarles.com (Joseph O. Wilson) — Mon, 10 Mar 2008 21:00:00 -0600

Things are getting really ugly in what has turned into a grudge match discovery dispute between Qualcomm and the company's outside lawyers.

I wrote recently about the impressive sanctions handed down by a magistrate judge against Qualcomm and its outside counsel after they failed to turn over hundreds of thousands of documents in patent litigation. Qualcomm's lawyers sought to defend themselves at the sanctions hearing by pointing the finger at Qualcomm's failures in the discovery process. However, the magistrate judge ruled that they were prevented from doing so by the attorney client privilege.

The federal district court has reversed that ruling. Four Qualcomm employees had filed declarations with the court that tended to exonerate Qualcomm while placing the blame on the shoulders of outside counsel. Specifically, Qualcomm alleged that its lawyers had failed to ask Qualcomm for discoverable documents, had inadequately prepared witnesses for deposition and had failed to advise Qualcomm employees of the company's defenses prior to their testimony at trial.

Because of the introduction of "accusatory adversity" between Qualcomm and its counsel, the district court ruled that the self defense exception to the attorney client privilege should apply. So, it looks as though the lawyers will get to tell their side of the story. It'll be interesting to hear what they have to say.

Is your E-discovery Expert Qualified?

apc@quarles.com (Anthony P. Chan) — Thu, 06 Mar 2008 13:59:21 -0600

On Feb 8, 2008 Chancellor William B. Candler III of the Court of Chancery of Delaware issued an opinion directing a third party to submit information regarding the ediscovery qualification of an information consultant.

This case illustrates that although the actual gathering of electronic information should be left for outside experts, it is also important to ascertain their qualifications since they can be called in doubt. Before hiring a e-discovery expert, there are some steps that can be taken to achieve the best results which may minimize the overall costs of litigation.

Compiling a request for proposal is a good way to assess vendor qulification and organize the ediscovery process. The RFP can also serve as a bid for potential vendors. The Sedona Conference white paper entitled "Best Practices for the Selection of Electronic Discovery Vendors," lists several criteria that are deemed essential to evaluate a vendor's qualification in handling the job.

Vendor background - investigate the reputation and integrity of the vendor under consideration as well as any litigation histories.
Personnel background - investigate the vendor's employees and any of its subcontractors as well as its hiring procedures.
Product or service - check the services the vendor offers or propose to offer.
Conflict check - ensure that the vendor under consideration does not have access to privileged information that may jeopardize a pending matter.

Most vendors specialize in one area of electronic discovery, i.e. preserving it, gathering it, reviewing it, etc. Know what you are looking for and where their expertise lies before signing on.