Monica Bay has an interesting interview with Martin Tully, who chairs Katten’s e-discovery group. Tully has some good advice for how such a group can work within a firm:
Use a collaborative approach. The members of an e-discovery group should come from different practice areas. They should be familiar with e-discovery because of their practice, but e-discovery shouldn’t be all they do. They should have different roles, including partners, associates, paralegals, and litigation support positions.
Deploy basic knowledge broadly. Everyone in the firm should have a baseline understanding of e-discovery issues.
Be the well of expertise. The e-discovery group should provides expertise. These are the people to reach out to and direct questions when difficult issues arise.
I’ll be presenting at the U.S. Open golf tournament today. The topic is ethics and electronic discovery. My thesis is that lawyers need to adapt in two ways in the age of electronic discovery:
Better understand technology, because evidence today is likely to be in electronic form (the duty of Competence).
De-emphasize the adversarial duties of Diligence and Confidentiality and re-emphasize the cooperative duties to Expedite Litigation, Candor Toward the Tribunal, and Fairness to Opposing Party and Counsel.
Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (May 26, 2010 C.D. Cal.)
Defendant subpoenaed the social networking sites Facebook, MySpace, and Media Temple, requesting plaintiff’s subscriber information and communications related to the dispute. Plaintiff moved to quash the subpoenas, arguing that such disclosure would violate the Stored Communications Act (“SCA”). The magistrate judge denied plaintiff’s motion to quash, and plaintiff moved for reconsideration.
The district court judge granted reconsideration, holding that the SCA applied to the social networking websites at issue and quashed the subpoenas to the extent they sought private messages.
However, the court distinguished between private messages and those posted more openly, such as on a Facebook status update or a MySpace comment. Accordingly, the court remanded the case to determine plaintiff’s privacy settings.
At page 10, lines 7-10, replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence.>.
The CompTIA study shows 88 percent of attorneys surveyed expect law firms to engage in e-discovery processes more frequently as more and more cases involve electronic information.
Among more than 650 IT professionals surveyed, 53 percent expect the use of e-discovery within their organizations to increase over the next few years.
The enactment of the California Electronic Discovery Act means more e-discovery in state court. But not all organizations are ready for the challenges of e-discovery:
Fifty percent of organizations surveyed have already developed an e-discovery strategy, either partial or comprehensive. Another 26 percent indicate that their organization has no official e-discovery strategy but have engaged in e-discovery processes informally. Among organizations that have yet to develop an e-discovery strategy, cost and expertise are cited as the primary reasons.
“Many organizations lack expertise in this emerging area,” said Tim Herbert, vice president, research, CompTIA. “That’s significant because the increasingly connected and digital world in which companies operate means the number of situations calling for e-discovery will only grow.”
While many organizations may still be getting up to speed, they can benefit from the best practices developed by other in-house teams and experienced outside counsel. In my experience within the e-discovery community, there is a willingness to share and collaborate.
The New Jersey Supreme Court ruled that an employee’s emails to her attorney — sent via her employer issued laptop — were privileged because she used her personal webmail account which was password protected. The attorney-client privilege was not waived despite her employer’s “policy that banned all personal computer use and provided unambiguous notice” that the employer could retrieve and read such communications. The Court reasoned:
Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual – that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system — would not be enforceable.
The Court further ruled that the employer’s attorneys violated the New Jersey Rule of Professional Conduct 4.4(b) by reading the emails from a forensic image of the laptop before notifying opposing counsel:
To be clear, the Firm did not hack into plaintiff’s personal account or maliciously seek out attorney-client documents in a clandestine way. Nor did it rummage through an employee’s personal files out of idle curiosity. Instead, it legitimately attempted to preserve evidence to defend a civil lawsuit. Its error was in not setting aside the arguably privileged messages once it realized they were attorney-client communications, and failing either to notify its adversary or seek court permission before reading further. There is nothing in the record before us to suggest any bad faith on the Firm’s part in reading the Policy as it did. Nonetheless, the Firm should have promptly notified opposing counsel when it discovered the nature of the e-mails.
A full copy of the opinion can be downloaded here.
Via Law.com, the court has lifted sanctions against attorneys representing Qualcomm:
Judge Barbara Major said it was “undisputed” that Qualcomm Inc. improperly withheld tens of thousands of documents from Broadcom Corp. However, she wrote, “the evidence presented during these remand proceedings has established that while significant errors were made by some of the responding attorneys, there is insufficient evidence to prove that any of the responding attorneys engaged in the requisite ‘bad faith’ or that [attorney Kevin] Leung failed to make reasonable inquiry before certifying Qualcomm’s discovery responses.”
The order lifting sanctions can be viewed here (PDF).
