In Case You Missed It (June 2 – June 8, 2008)

News stories from the week of May 26, 2008 that piqued our interest:

E-Discovery Disclosure Goof Waived Attorney-Client Privilege, Judge Rules

ABA Journal, June 4, 2008

While many of our blogs have been about companies who don’t disclose enough information in the e-discovery process, this one is about a company that did the exact opposite. U.S. Chief Magistrate Judge Paul Grimm ruled that Creative Pipe Inc. did not take the necessary actions to protect attorney-client privileges when the company mistakenly turned over 165 data-sensitive documents in e-discovery. According to Grimm’s decision, the company used untested-keyword searches to separate sensitive documents from the rest.

“All keyword searches are not created equal,” Grimm wrote in the May 29 opinion (PDF). “Any order issued now by the court to attempt to redress these disclosures would be the equivalent of closing the barn door after the animals have already run away.”

According to Grimm, courts have the following approaches that help them determine waiver when e-discovery documents are unintentionally disclosed:

“The intermediate test considers the reasonableness of the precautions taken to prevent disclosure, the extent of inadvertent disclosures, any delay rectifying disclosure, and the overriding interest of justice.”

Consequently to their actions, Creative Pipe failed this on all levels. However, this scenario provided an opportunity that all legal counsel can learn from: the ways in which to explain the procedure that was taken when searching for and disclosing electronic documents.

Top Tips for Staying Legal

Byte and Switch, June 5, 2008

With the laws surrounding data preservation constantly changing in order to keep with various forms of electronic documents, it’s hard for storage professionals to keep up. Being held responsible for properly managing the information, it’s important that they at least understand the basic root of the laws in order to keep themselves on track. To do this, industry experts have suggested the following:

1. Get organized. 2. When it doubt, save it. 3. Get to know your lawyer(s). 4. Make no assumptions about your personal liability. 5. Keep those logs turned on. 6. Make use of what’s out there.

Take a look at the article and let us know your thoughts. Are there any tips you would add to this list?

Local legal experts address conference about text messaging rights

Detroit Free Press, June 5, 2008

As we’ve mentioned, electronic forms of communication are constantly evolving and it seems as though we’re constantly playing catch up. Text messaging, for example, is something that’s emerging in the courts as viable electronic evidence. If anyone knows about this, it’s Detroit Mayor Kwame Kilpatrick who is under fire for sending inappropriate text messages from his city-owned cell phone. Situations such as this is a warning to all employees that anything sent from company property (cell phone, office phone, email, etc.), is subject to review, according to Tom Hathaway and Brian Ziff, two businesses lawyers from Clark Hill . This was the topic of the recent Midwest Technology Leaders Conference where Hathaway and Ziff spoke to technology leaders about e-discovery and the corporate liability that comes along with it.

“When it comes to the workplace, there is now no expectation of privacy when it comes to electronic discovery,” said Hathaway. “If it’s been sent on a company e-mail account, from a laptop or a desk PC or a mobile phone or PDA, it’s fair game as evidence in a lawsuit.”

No matter how many times you delete a message, it never really disappears, according to Hathaway. With that in mind, we should all remember to play it safe and separate our work and personal lines of communication. Still not convinced that your personal life could be disclosed to the world? Talk to Mayor Kilpatrick. He probably has a thought or two to share.

Posted by Surety on June 10, 2008 at 02:51 PM
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