One of the trickiest aspects of electronic discovery is successfully accounting for privileged documents.  Because it is not unusual for an electronic document production to contain millions of pages, even with the most diligent and careful of document reviews, there is a relatively high likelihood that one or more privileged documents will be inadvertently produced to the opposing party.  The rules governing privilege waiver vary from one jurisdiction to another, but in many jurisdictions, production of a privileged document – even when done unintentionally – constitutes a waiver of the privilege.  Even worse, in some jurisdiction, the waiver is not just a waiver of the privilege over that particular document; it serves to waive the privilege over any documents related to the subject matter of the produced document. (more…)

Imagine, for a moment, that you are the General Counsel of Amalgamated Widget, the nation’s largest manufacturer of widgets. One day, you are sitting at your desk when your phone rings. On the other end of the phone is one of the lawyers who works for you; she proceeds to inform you that Amalgamated Widget has just been served with a complaint alleging that your latest model of widget has been negligently designed and caused serious bodily injury to one of your customers.

Acting quickly, you begin working the phones. Within an hour, you have identified all of the relevant people within the company — from the engineers who designed the widget to the factory workers who built it; from the salesmen who sold it to the marketing guys who designed the ad campaign. List of potential data custodians in hand, you call the IT department and instruct them to freeze the e-mail accounts of each of those people. All e-mail as it existed at the time of the complaint will be preserved from deletion. You also copy all of their hard drives and all servers to which they may save documents. Finally, you pull a copy of the relevant corporate databases — everything from the design database that tracks the R&D process to the sales database that catalogs your customers. Then, just for good measure, you make a copy of the company’s web page.

Think you’ve preserved every bit of electronic information that could possibly be relevant? That’s so Web 1.0. (more…)

One of the most contentious issues in electronic discovery is an issue that you might not think people would fight over: the form in which electronic information is to be produced.

In the old days, before electronic discovery, form of production was an easy issue.  Documents pretty much existed in one form only – paper – and you produced them in that form.

With electronically stored information, however, it’s not quite that easy.  An electronic document may be produced by printing it to paper.  Or it may be produced in its native format.  Or it may be produced by converting it to TIF or PDF form, perhaps with an accompanying file containing some or all of the metadata associated with the underlying file. (more…)

If you’re the type of person who follows the news (and since you’re reading this on a website called Chicago Tech News, odds are you are), you’ve probably heard that we’re going to have a new Supreme Court Justice.  Will Judge Sotomayor’s promotion to Justice Sotomayor — barring an unforeseen revelation, she is almost certain to be confirmed, and for the sake of convenience, I’m going to prematurely refer to her as Justice Sotomayor in this column — have an effect on electronic discovery?  Probably not, but there’s enough room between “probably not” and “definitely not” that it’s worth taking some time to examine the ways in which her appointment might change things. (more…)

Last month, we talked about search terms, key words, and the Gross Construction case.  If you missed it, I highly recommend that you click the link and check it out.

Search terms are a natural outgrowth of the nature of electronic information.  The idea of harnessing the searchability of electronic information to cull relevant documents from irrelevant ones is an intuitive one.  If we’re interested in documents relating to widgets, it is natural to assume that relevant documents will contain the word “widget.”  Thus, we can take a large data set — a collection of a million e-mails and electronic files, for example — and search it for the word “widget.”  If only a hundred thousand documents contain the word “widget,” we’ve narrowed the scope of our task by 90 percent. (more…)

Back in the olden days, document review was simple.  The other side would ask you to produce all documents related to the claims in the case, a team of young lawyers would go to a warehouse full of paper that looked like the last scene in Raiders of the Lost Ark, and those young lawyers would start looking through the paper – page by page – to find the responsive documents.

But who uses paper anymore?

These days, document review doesn’t even involve documents – it involves electronically stored information, or ESI.  And the warehouse full of dusty boxes has been replaced with a server farm. (more…)