E-Discovery Forum - E-Discovery News http://electronicdiscovery.info/forum/ Syndicated electronic discovery news from across the internet and leading e-discovery blogs en Thu, 09 Sep 2010 06:50:07 GMT vBulletin 60 http://electronicdiscovery.info/forum/images/misc/rss.jpg E-Discovery Forum - E-Discovery News http://electronicdiscovery.info/forum/ Can Addressing eDiscovery Lead to Better Litigation Win Rates? - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14263-can-addressing-ediscovery-lead-better-litigation-win-rates-electronic-discovery.html Thu, 09 Sep 2010 03:31:19 GMT *Can Addressing eDiscovery Lead to Better Litigation Win Rates?* In reading the morningâ??s headlines, an interesting statistic stood out to me... Can Addressing eDiscovery Lead to Better Litigation Win Rates?

In reading the morningâ??s headlines, an interesting statistic stood out to me â?? 51% of lawyers have lost a case in the last 3 months alone because of eDiscovery problems. The source of this data is not clear, but it came through the Twitter feed of Symantecâ??s Enterprise Vault team. Taking the stat at face value, itâ??s astounding â?? eDiscovery problems as the cause of a lost case. There is something very disheartening about any case being lost on anything other than its merits.

On the other hand, the notion that eDiscovery problems can lose a case should hopefully spur further action by corporations to get eDiscovery under control. If the benefits of cost reduction and sanction avoidance are not enough, perhaps a better win rate will catch the attention of the executive suite. Interestingly, in research we are conducting right now on early case assessment (ECA), a better win rate is one of the use-cases ECA targets.

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Source: eDiscovery Journal
By: Barry Murphy




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14263-can-addressing-ediscovery-lead-better-litigation-win-rates-electronic-discovery.html No Crackdown but Questions in Europe About Data Protection and the Cloud - Electronic http://electronicdiscovery.info/forum/e-discovery-news/14247-no-crackdown-but-questions-europe-about-data-protection-cloud-electronic.html Wed, 08 Sep 2010 15:34:38 GMT *No Crackdown but Questions in Europe About Data Protection and the Cloud* German authorities have recently expressed skepticism about cloud... No Crackdown but Questions in Europe About Data Protection and the Cloud

German authorities have recently expressed skepticism about cloud computing and the potential it has for breaking data protection laws.

According to the Information Law Group, there is no imminent danger of a European crackdown but legal experts are advising international companies to address the potential concerns in their planning and operations.

The controversy stems from Dr. Thilo Weichert, head of the data protection commission in the northernmost German state of Schleswig-Holstein. Weichert is calling for the abolition of the Safe Harbor framework and doubts the ability of companies to protect the rights of Europeans, who enjoy some of the strongest personal privacy laws in the world.

According to the Information Law Group, the Safe Harbor Framework was "developed jointly by the European Commission and the US Department of Commerce, under which American companies can publicly certify compliance with a standard set of Safe Harbor Privacy Principles approved by the European Commission and enforced by American regulators, predominantly the Federal Trade Commission."

The concerns about data privacy are also felt across Europe. Most of the tension arise from how personal data is stored in the Untied States, where privacy laws are less comprehensive.

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Source: readwriteweb.com
By: Alex Williams




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14247-no-crackdown-but-questions-europe-about-data-protection-cloud-electronic.html The good, the bad and the ugly truth about social media - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14246-good-bad-ugly-truth-about-social-media-electronic-discovery.html Wed, 08 Sep 2010 15:34:38 GMT *The good, the bad and the ugly truth about social media* Social media is a great way to keep in touch with old college buddies. Or to lose your... The good, the bad and the ugly truth about social media

Social media is a great way to keep in touch with old college buddies. Or to lose your job. Or to get yourself hauled before a judge.

The power of social media, and the pitfalls, has been particularly evident in the past couple of weeks, as a Chamber of Commerce executive stepped down from her job after questions about her use of Twitter, and a juror faced contempt of court because of something she posted on her Facebook page during a trial.

Both are wiser now, and hopefully others have learned something from these situations as well. Social media is not to be used carelessly.

In Dexter, the chamber executive director resigned in late August after a column in the Dexter Leader questioned how she was using Twitter to promote a campaign aimed at getting people to shop and dine locally. She told AnnArbor.com that the campaign was sound, but acknowledged that she was a novice to Twitter and her efforts to use it were amateurish. â??Quite frankly,â??â?? she said, â??I wasnâ??t that good at it.â??â??

At least she didnâ??t run afoul of the law. In Mount Clements, a 20-year-old woman was removed from a jury after she wrote on Facebook that it was â??gonna be fun to tell the defendant theyâ??re guilty.â??â?? At the time, the trial was still proceeding. Her remarks were discovered by the son of the defense attorney, who had been looking up the jurors on Facebook.

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Source: annarbor.com
By: Tony Dearing




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14246-good-bad-ugly-truth-about-social-media-electronic-discovery.html Associate Tech Survey 2010: Less Tech Lowers Morale - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14245-associate-tech-survey-2010-less-tech-lowers-morale-electronic-discovery.html Wed, 08 Sep 2010 15:34:38 GMT Associate Tech Survey 2010: Less Tech Lowers Morale

Plenty of firms cut tech spending during the recession. Now they're paying a price in associate esteem

In the midst of a recession, should firms cut back on technology investment to conserve cash or ramp up spending to win a competitive advantage when the economy turns around? As shown by the results of our annual midlevel job satisfaction survey, firms tested both approaches, to mixed results. As part of the survey, we asked 4,942 third-, fourth-, and fifth-year associates from 137 large and midsize firms to rate their firms' technology in the areas of quality, training, support, and use on behalf of clients on a 1-to-5 scale, with 5 being the highest possible score.

Click here for tech scores and firm rankings.

Elsewhere in the survey, we asked associates how the recession had affected their firms generally, and found division among midlevels who mentioned technology in their answers. Some said that their firms cut back technology investment because of the recession, an approach that they characterized as shortsighted. Midlevels at other firms said that the recession spurred an increased focus on technology, although when asked, management tended to dismiss the correlation.

Among the firms where midlevels complained of cost-cutting was Morrison & Foerster, which finished 69th on our technology rankings, down from 46th a year ago. "Technology updates have been nonexistent," wrote one Morrison & Foerster fifth-year. "The firm is cheaper than ever in all respects, and it is depressing." At Bingham McCutchen, which finished 58th, down from 38th a year ago, a fifth-year wrote that the firm is "even less nimble with respect to adopting new technologies" than it was in the past. (A Bingham spokeswoman acknowledges that the firm took a "more conservative" approach to technology in 2009 but is investing more money this year.)

One firm that postponed upgrades and paid the price with a low score was Chadbourne & Parke. With a mark of 2.07, Chadbourne finished in last place on the question measuring midlevel satisfaction with technology quality. (The firm's composite score was 2.805, placing it at number 133.) "Prior to the world having fallen apart during the latter part of 2008, we had prepared a technology-improvement strategy," says Chadbourne chief operating officer Hal Stewart. But the economic slowdown pushed the firm to reconsider. Stewart acknowledges that improved technology can create long-term reductions in operating costs, but it also requires higher short-term spending. "It's like the chicken and the egg," he says.

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Source: law.com
By: Charlie Mead




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14245-associate-tech-survey-2010-less-tech-lowers-morale-electronic-discovery.html 3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data - Electronic D http://electronicdiscovery.info/forum/e-discovery-news/14239-3rd-circuit-probable-cause-may-needed-cell-phone-location-data-electronic-d.html Wed, 08 Sep 2010 13:53:32 GMT *3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data* In the first appellate ruling on a cutting-edge privacy issue, the 3rd... 3rd Circuit: Probable Cause May Be Needed for Cell Phone Location Data

In the first appellate ruling on a cutting-edge privacy issue, the 3rd U.S. Circuit Court of Appeals has declared that cell phone location data may trigger Fourth Amendment concerns and that prosecutors demanding access to such records may be required at times to satisfy a probable cause standard.

The ruling in In re Application of the USA - Electronic Communication Service (pdf) is a setback for the Justice Department, which had argued that judges are required under §2703 of the Stored Communications Act to issue orders for access to such data whenever prosecutors show that it would be "material" and "relevant" to an ongoing investigation.

But the appellate court's ruling also reversed a decision by U.S. Magistrate Judge Lisa Pupo Lenihan of the Western District of Pennsylvania that said §2703 didn't apply and that prosecutors must always show probable cause to access such data.

Instead, the appellate court largely adopted the position espoused by a coalition of civil rights and privacy groups who, in an amicus brief, argued that although the records are covered by §2703, judges must be free to decide when to demand that prosecutors satisfy the probable cause standard.

"Because the statute as presently written gives the magistrate judge the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly," U.S. Circuit Judge Dolores K. Sloviter wrote in an opinion joined by Judge Jane R. Roth and partly joined by visiting 9th Circuit Judge A. Wallace Tashima.

The ruling was hailed as an important protection of privacy rights by professor Susan Freiwald of the University of San Francisco School of Law, an expert in the area of privacy and technology, who filed her own amicus brief and was one of two lawyers arguing against the government.

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Source: law.com
By: Shannon P. Duffy




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14239-3rd-circuit-probable-cause-may-needed-cell-phone-location-data-electronic-d.html S. Florida districts weigh policy for teachers using social media - Electronic Discov http://electronicdiscovery.info/forum/e-discovery-news/14233-s-florida-districts-weigh-policy-teachers-using-social-media-electronic-discov.html Wed, 08 Sep 2010 12:56:01 GMT S. Florida districts weigh policy for teachers using social media

Online networking has uses in schools as long as it's not personal, some say

After people meet in the real world, their next step is often a visit to the virtual one, where they'll make a "friend" request on Facebook or MySpace.

But that can create a dilemma for teachers who get such requests from students, especially in Broward and Palm Beach counties, which have no written social media policies.

"I don't want to see the nonsense they write," quipped Wendy Peale, a language arts teacher at Falcon Cove Middle School in Weston, before getting serious. "I don't confirm friend requests from students. They're not my friends. I'm friendly with them, and I'm concerned about them and if there was something they needed to discuss, I would be there to guide them. But I just think they can't be my friend."

Officials at the Lee County School District agree. Last month, they adopted a four-page guideline that said communicating with current students "could be viewed as inappropriate."

Social media use has grown dramatically in the past decade. According to the Pew Research Center's Internet and American Life Project, 73 percent of 12- to 17-year-olds used a social media site in 2009 to communicate with friends and family as well as share photos, videos, links to information and status updates.

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Source: articles.sun-sentinel.com
By: Akilah Johnson




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14233-s-florida-districts-weigh-policy-teachers-using-social-media-electronic-discov.html <![CDATA[Difficulties producing 'digital evidence' cause lawyers to lose cases - Electronic Di]]> http://electronicdiscovery.info/forum/e-discovery-news/14232-difficulties-producing-digital-evidence-cause-lawyers-lose-cases-electronic-di.html Wed, 08 Sep 2010 12:56:01 GMT Difficulties producing 'digital evidence' cause lawyers to lose cases

The challenge of processing digital information has caused lawyers to lose a case or to be fined or sanctioned in the last two years.

A survey of 5,000 lawyers across EMEA by Symantec found that they are struggling to manage the vast amounts of electronically stored information that play a vital role as evidence in legal matters across the EMEA region.

Half of those surveyed (51 per cent) admitted to problems identifying and recovering e-discovery in the last three months. However the poor availability of â??digital evidence', which can also hinder the legal process and the power of technology to identify and collect relevant information among millions of electronic files has had a positive impact on many cases across EMEA.

Almost all of the lawyers questioned (98 per cent) said that â??digital evidence' identified during e-discovery had been vital to the success of legal matters in which they had been involved in the past two years.

Over half of the respondents (60 per cent) admitted they struggled with the amount of information that had to be searched; 29 per cent complained that they did not have enough time to conduct thorough investigations; while 24 per cent said they lacked sufficiently sophisticated e-discovery technology to fulfil requests effectively

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Source: SC Magazine




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14232-difficulties-producing-digital-evidence-cause-lawyers-lose-cases-electronic-di.html How email archiving policy impacts FoI requests - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14231-how-email-archiving-policy-impacts-foi-requests-electronic-discovery.html Wed, 08 Sep 2010 12:56:01 GMT *How email archiving policy impacts FoI requests* *By accurately archiving email and having easy access to it, organisations can ensure that data... How email archiving policy impacts FoI requests

By accurately archiving email and having easy access to it, organisations can ensure that data privacy is maintained and records cannot be altered in the process.

CIOs need to be aware of changes to the enforcement of the Freedom of Information Act and how they manage email argues Andres Kohn of Proofpoint.

The Information Commissioners Office (ICO) has pledged to take a tougher approach to (FoI) enforcement, but unless major changes in archival processes are made, this could be difficult to achieve.

Under the new measures, organisations will face action from the ICO if they regularly fail to issue a response on time, refuse to disclose information without specifying an exemption, or if they fail to respond to a request altogether.

Despite the fact that FoI requests can be a burden on an organisation, and perhaps even perceived negatively as a dirt-finding mission, the ICO rightly sees them as vital in building public trust.

As I see it, there are several major reasons behind the FoI bottlenecks. The first is that there is a often a lack of internal policies about how to deal with these requests, which are constantly growing in number, and the second is that data archives have usually been designed to store not to retrieve. They are not designed to be well indexed and easily searched, and as such retrieving data can be resource consuming and expensive.

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Source: cio.co.uk
By: Andres Kohn




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14231-how-email-archiving-policy-impacts-foi-requests-electronic-discovery.html Ongoing Case Assessment a Tool to Manage Litigation - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14230-ongoing-case-assessment-tool-manage-litigation-electronic-discovery.html Wed, 08 Sep 2010 12:56:01 GMT *Ongoing Case Assessment a Tool to Manage Litigation* Although many companies have developed written protocols for evaluating the risk associated... Ongoing Case Assessment a Tool to Manage Litigation

Although many companies have developed written protocols for evaluating the risk associated with a new suit, they infrequently use case assessment as a systematic process to manage litigation. Typically, companies will perform a preliminary case analysis shortly after the suit is filed but will rarely consult the assessment later in the case. Changing this can help in-house counsel better manage litigation and keep costs down.

A well-designed case assessment identifies key factual and legal aspects of a case; facilitates the development of an effective litigation plan; provides a framework for making a realistic appraisal of likely outcomes, including the prospects for alternative dispute resolution; and contributes to effective budgeting decisions. Additionally, the case assessment can harmonize the expectations of in-house counsel and their internal clients, and it is a vital process for coordinating litigation strategy with outside counsel.

In-house lawyers should divide the case assessment into three stages: preliminary analysis, ongoing review, and closure.

â?¢ Preliminary analysis. An effective case assessment begins with an objective analysis of a case's key facts, known and unknown. There is no substitute for a thorough investigation conducted under the direction of legal counsel.

In addition, litigation counsel must work closely with business managers to identify key people with relevant knowledge and to develop a plan for collecting and preserving the company's documents and electronically stored information.

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Source: law.com
By: Matthew W. Caligur




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14230-ongoing-case-assessment-tool-manage-litigation-electronic-discovery.html Courts Still Wary of Hard Drive Review Requests - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14229-courts-still-wary-hard-drive-review-requests-electronic-discovery.html Wed, 08 Sep 2010 12:56:01 GMT *Courts Still Wary of Hard Drive Review Requests* Cloning a computer hard drive is a significant tool that should not be overlooked when seeking... Courts Still Wary of Hard Drive Review Requests

Cloning a computer hard drive is a significant tool that should not be overlooked when seeking to uncover electronically stored information. However, a motion seeking to clone an opposing party's hard drive may likely only be successful upon demonstrating that the information sought could not be obtained any other way.

Courts want more than speculation that the requested ESI would ordinarily have been stored on the hard drive, and may require a substantiated proffer that the failure to voluntarily produce such ESI is due to its unintentional retention or deletion or a more sinister motive.

Cloning to test for the existence of specific ESI may be appropriate where, for instance, there has been a repeated failure to turn over sent e-mails (and, for example, what has been produced were only e-mails received from others); e-mails from a deleted or garbage folder have not been provided; or cause has been shown for the need to examine whether ESI claimed by one side to have been deleted exists in some fashion and/or can be recovered.

While motions seeking to review information stored on a hard drive are being granted more frequently, courts continue to remain circumspect in granting such applications.

Courts are concerned about burden and will not order a wholesale turnover of a hard drive. They will impose limitations to address potential fishing expeditions; privacy concerns as they relate to irrelevant materials; disclosure of competitive materials to ensure that such materials will not be misused; materials protected by the attorney-client privilege, work product immunity doctrine or other privileges; and inconvenience to a non-party owner of a computer. In addition, a court may require a representation that the party requesting the inspection, consistent with New York law, will pay for the costs of the production or review of the hard drive.[FOOTNOTE 1]

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Source: law.com
By: Mark A. Berman




Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14229-courts-still-wary-hard-drive-review-requests-electronic-discovery.html Lawyers admit losing cases through information management failure - Electronic Discov http://electronicdiscovery.info/forum/e-discovery-news/14222-lawyers-admit-losing-cases-through-information-management-failure-electronic-discov.html Wed, 08 Sep 2010 08:18:21 GMT *Lawyers admit losing cases through information management failure* *Lawyers admit losing cases through information management failure... Lawyers admit losing cases through information management failure

Lawyers admit losing cases through information management failure


"A survey of 500 lawyers in the UK has revealed that problems with processing digital information had led all of them to lose a case or suffer a significant legal impact on their work in the last two years.

All the lawyers surveyed admitted that in some cases they had been unable to locate or process electronically stored information (ESI) that could have been presented as evidence.

Some 54 percent said that ESI issues had materially affected cases in the last three months alone.
British lawyers are not unique in facing these difficulties, according to a survey conducted last month by LM Research for Symantec."






Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14222-lawyers-admit-losing-cases-through-information-management-failure-electronic-discov.html Controlling The Chaos Of E-Discovery - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14221-controlling-chaos-e-discovery-electronic-discovery.html Wed, 08 Sep 2010 08:18:21 GMT Controlling The Chaos Of E-Discovery

Controlling The Chaos Of E-Discovery

"Cost control is a top priority, particularly during the review phase of electronic discovery. Expenses mount dramatically as attorneys' time is tapped to evaluate electronically stored information (ESI) and determine what is relevant and privileged. The key is to substantially reduce the initial volume of data to review, continue to minimize the quantity of data that requires higher level of review expertise, and use the right expertise level for appropriate tasks.

The power of workflow (intelligent item routing) and validation (work product quality control) are strong allies in maximizing resources. A solid workflow process streamlines review activities so reviewers do not get bogged down. Automated workflow routing maximizes reviewers' productivity and keeps them on track and busy. For example, Kiersted's K4 platform eliminates waiting time and administrative delays by empowering attorneys to independently assign themselves bins of relevant documents to review. Simultaneous work efforts are possible when all users have active control, and self-administration capability means less work for the project manager, system administrator and docket manager. Real-time validation ensures that items are marked consistently with rules set for the specific project. Working in tandem with workflow, validation enforces the rules that govern linear progression of documents from one milestone stage to the next."






Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14221-controlling-chaos-e-discovery-electronic-discovery.html Briefing: Informative Graphics - Electronic Discovery http://electronicdiscovery.info/forum/e-discovery-news/14214-briefing-informative-graphics-electronic-discovery.html Tue, 07 Sep 2010 20:32:40 GMT Briefing: Informative Graphics

During a recent phone briefing with Gary Heath, CEO of Arizona's Informative Graphics, assistant editor Heather Schultz and I learned about two of its main products â?? Brava Viewer and Redact-It. Brava, which is available in a desktop or web-based version, helps users view, annotate, redact, and publish documents saved in any file format. The most recent version is Brava Flash, which offers the same functions as the standard Brava viewer, through a flash interface. Redact-It helps users remove sensitive or privileged information from documents, images, and e-mails. Users can search for and select text that they want redacted, and can provide a short explanation as to why the information was redacted. Users are prompted multiple times during the redacting process, to help sure they completely remove data. Because these programs focus on preparing information for presentation, Heath says the company falls on the processing and production phases of the Socha-Gelbmann Electronic Discovery Reference Model (www.edrm.net).

During a recent phone briefing with Gary Heath, CEO of Arizona's Informative Graphics, assistant editor Heather Schultz and I learned about two of its main products â?? Brava Viewer and Redact-It.

Brava, which is available in a desktop or web-based version, helps users view, annotate, redact, and publish documents saved in any file format. The most recent version is Brava Flash, which offers the same functions as the standard Brava viewer, through a flash interface.

Redact-It helps users remove sensitive or privileged information from documents, images, and e-mails. Users can search for and select text that they want redacted, and can provide a short explanation as to why the information was redacted. Users are prompted multiple times during the redacting process, to help sure they completely remove data.

Because these programs focus on preparing information for presentation, Heath says the company falls on the processing and production phases of the Socha-Gelbmann Electronic Discovery Reference Model (www.edrm.net).



Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14214-briefing-informative-graphics-electronic-discovery.html Judge Waxse Weighs In on the 2010 Civil Litigation Conference at Duke - Electronic Di http://electronicdiscovery.info/forum/e-discovery-news/14212-judge-waxse-weighs-2010-civil-litigation-conference-duke-electronic-di.html Tue, 07 Sep 2010 14:35:23 GMT *Judge Waxse Weighs In on the 2010 Civil Litigation Conference at Duke* In the most recent edition of Digital Detectives, our Legal Talk Network... Judge Waxse Weighs In on the 2010 Civil Litigation Conference at Duke

In the most recent edition of Digital Detectives, our Legal Talk Network podcast, John and I had the pleasure of interviewing Magistrate Judge David Waxse of Kansas about his participation in the May 2010 Civil Litigation Conference at Duke Law School.

Judge Waxse, as always, was clear, concise and colorful. His inside view of the Conference was interesting to us on many fronts. He felt that the consensus at the Conference was that the Federal Rules of Civil Procedure are not broken, but that they need a certain amount of amendment, which he discusses in some depth.

What needs more work, according to the judge, is judicial management of cases - particularly in using the existing rules forcefully to manage cases more efficiently, with more speed and with less tolerance for attorney misconduct.

He also offers his view of the current fact vs. notice-based pleading issue. As always, he minces no words. Thanks Judge Waxse for a fascinating interview. You can find the podcast here.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq






Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14212-judge-waxse-weighs-2010-civil-litigation-conference-duke-electronic-di.html <![CDATA[Son's Receipt of Privileged Emails Did Not Result in Waiver where Son was a "Necessar]]> http://electronicdiscovery.info/forum/e-discovery-news/14191-sons-receipt-privileged-emails-did-not-result-waiver-where-son-necessar.html Mon, 06 Sep 2010 08:29:15 GMT Son's Receipt of Privileged Emails Did Not Result in Waiver where Son was a "Necessary Conduit in Delivering" Attorney's Emails to Plaintiffs

Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email. That is not always the case. In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs&rsquo; attorney-client privilege was waived as a result of their son&rsquo;s receipt of privileged emails where it was established that the son&rsquo;s assistance was necessary to ensure plaintiffs&rsquo; timely receipt of the emails, in light of plaintiffs&rsquo; lack of email proficiency.

In this case, the magistrate judge determined that privilege had been waived as to emails created by or shared with non-parties who are not attorneys, namely plaintiffs&rsquo; financial advisors and plaintiffs&rsquo; son. Specifically, the court rejected the financial advisors&rsquo; assertions that they were &ldquo;assisting in the transmission of factual information between Plaintiffs and Plaintiffs&rsquo; counsel&rdquo; and found there was &ldquo;no evidence that their involvement was necessary to ensure the provision of legal advice, or to facilitate the delivery of emails.&rdquo; Likewise, the magistrate judge rejected the explanation of plaintiffs&rsquo; son that his &ldquo;technical assistance was necessary for his parents to timely receive the email communications from counsel&rdquo; because his parents were &ldquo;not proficient in the use [of] electronic mail.&rdquo; The magistrate judge reasoned that &ldquo;[l]ack of technical competence &hellip; is not the equivalent of an inability to communicate. Mr. Green was not required to act as a translator between his parents and their attorney. Rather, he simply expedited their communications. There is no evidence that other, confidential means of communication would not have been sufficient.&rdquo; Plaintiffs objected to the order.

Taking up the issue, the district court identified an exception to the principle that communications involving third parties are generally not privileged where &ldquo;the purpose of the communication [to a third party] is to assist the attorney in rendering advice to the client&rdquo; and where the party asserting the privilege can establish that the client had a reasonable expectation of privacy with respect to the communication at issue and that disclosure to the third party was necessary for the client to obtain informed legal advice. The court further established that disclosure to an agent of the attorney or the client does not result in waiver.

The district court sought additional guidance from New York State law addressing the "attorney-client privilege&rsquo;s application in the context of electronic communications, including email." Section 4548 of the New York Civil Practice Law and Rules states: &ldquo;No communication &hellip; shall lose its privileged character for the sole reason that it is communication by electronic means or because persons necessary for the delivery or facilitation of such electronic communications may have access to the content of the communication.&rdquo;

Accordingly, the district court upheld the magistrate judge&rsquo;s finding that privilege was waived as to emails disclosed to plaintiffs&rsquo; financial advisors where there was no evidence that the financial advisors "serve[d] some specialized purpose in facilitating the attorney-client communication" or &ldquo;played a &lsquo;necessary&rsquo; role in the delivery or facilitation of the emails.&rdquo; As to the plaintiffs&rsquo; son, however, the district court found the magistrate judge had erred in holding that privilege was waived and by failing to apply Section 4548. Specifically, the district court held that plaintiffs provided sufficient evidence to establish that their son&rsquo;s assistance was &ldquo;necessary for the delivery or facilitation&rdquo; of counsel&rsquo;s emails. The district court also found the magistrate judge had erred &ldquo;by not finding that [plaintiffs&rsquo; son] served as an agent for the Green plaintiffs, and that his involvement in the delivery of the otherwise confidential communications would not constitute a waiver of privilege.&rdquo;

The court concluded:

A finding that privilege has not been waived in this case is appropriate as a matter of public policy. Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party--here, the Green Plaintiffs' son--in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege.

A copy of the full opinion is available here.





Visit the publisher of this e-discovery news article: original source. ]]> E-Discovery News Electronic Discovery News Feed http://electronicdiscovery.info/forum/e-discovery-news/14191-sons-receipt-privileged-emails-did-not-result-waiver-where-son-necessar.html