GCs to Employees: Think Before You Send

E-discovery rules have caused in-house counsel to take a harder line with some of the e-mails that workers think are private

Katheryn Hayes Tucker
Fulton County Daily Report
November 9, 2007

“Don’t put this in writing, but … ” Those are the opening words of an e-mail that got the writer’s company in legal hot water. And there are plenty more where that came from.

“This is off the record,” started the e-mail that in fact put it all on the record.

How about this one? “We may be in breach of contract, and here’s why.”

These examples of troublesome e-mails general counsel say they’ve run across don’t include the countless off color so-called jokes forwarded to contact lists of colleagues, interested or not, or links to Web sites that are definitely not part of a corporate job description… read more here

Rule 34(b)(ii) of the Federal Rules of Civil Procedure (FRCP) states that:

if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.

With the broad scope of impact of these rules, and little definitive precedent and interpretive judicial opinion, there’s much activity in the realm of compliance and legal discovery technology as folks seek clarity. Lately, we’ve come across a couple of experts weighing in on the matter.

The phrase “in which it is ordinarily maintained” often has been construed as meaning in its native file format … there are several problems with this interpretation, however ….

… says Courtney Ingraffia Barton, Esq., Vice President of Industry Relations at Applied Discovery in her article at The Discovery Standard.

(more…)

Is it meant to be a ’safe harbor’ or a ‘lighthouse’?

By Kevin F. Brady
The Legal Intelligencer
August 3, 2007
Rule 37(f) is a new rule added by the amendments to the Federal Rules of Civil Procedure that became effective Dec. 1, 2006. It’s been described by commentators in many different ways, including “safe harbor,” “lighthouse” and “minefield.” One of the judges who sat on the rules committee that proposed Rule 37(f), said that it’s meant to be more like a “bubble bath” than a “safe harbor” — something to make companies feel good about handling electronically stored information in litigation. more

FRCP And MetaData - Avoid The Lurking E-Discovery Disaster

Executive Summary

New e-Discovery rules are forcing organizations to develop policies and implement actions to address the new world of civil litigation in a digital era. The rules clarify that document metadata will be part of e-Discovery and must be considered in every case. Organizations who do not take steps face significant risks. Organizations that step up to the challenge by designing and implementing reasonable policies and selecting tools that help automate procedures will not only lower e-Discovery costs, but will avoid future e-Discovery disasters that can lead to sanctions and penalties and lost business, brand reputation and customers.

A treasure trove of potentially damaging information hides in plain sight beneath the surface of today’s electronic documents. Although we see the occasional newspaper story announcing the embarrassing release of this hidden data, the issues raised by document “metadata” have only slowly made their way into litigation matters, court cases and law practices. more

Dennis Kennedy is a well-known legal technology expert and technology lawyer. He writes and speaks frequently on electronic discovery and other issues at the intersection of technology and law. His website and blog (www.denniskennedy.com) are highly regarded resources on these issues and contain many of his articles.