KTLitSmart

As anyone faced with discovery requests knows, one of the most important parts of producing documents is determining what documents are subject to attorney-client privilege or work product doctrine and must therefore be redacted or withheld. Failing to conduct an effective privilege review can have dire consequences -- from exposure of highly confidential information to even waiver of the privilege. In Part One of this blog post, we discussed how difficult it can be in a corporate context to determine whether an individual document should be withheld or redacted as privileged.  In this Part Two, we discuss how employing technology in our privilege review reduces risk and makes this process easier and more efficient.

Have you ever given much thought to what constitutes a “family” of documents when producing electronically stored information (“ESI”)?  Even if you are an E-discovery attorney, you very well may not have. After all, it is pretty straight forward, isn’t it?  An email and all its attachments are a document family. Sometimes, you have a document with embedded files or images that may be split off into separate documents in the collection or processing process. That document and its embedded files are a document family. And . . . that’s pretty much it, right?  Well, not so fast. As cloud storage and collaboratively shared documents become more popular, we are seeing increasing numbers of emails that have hyperlinks to documents rather than conventional attachments.  So, are hyperlinked documents part of a family?  How are the courts handling these issues?

As the amount of electronically stored information (“ESI”) continues to grow at an exponential rate, basic E-Discovery knowledge becomes increasingly essential for litigators and legal professionals alike across a variety of practice areas. And yet, it does not appear that law schools are keeping up with E-Discovery’s ever-growing consequence. While a handful of law schools do offer standalone E-Discovery courses, it is far from the norm. Mere passing references to E-Discovery in higher education are inadequate to prepare future lawyers for the realities of the legal profession in this digital age.

A motion for an adverse inference was denied in Pratt v. Robbins, et al. where Defendants failed to preserve or produce a video that might have contained pivotal evidence going to the heart Plaintiff’s civil rights claim for excessive force.  Plaintiff argued that Defendants spoliated evidence by failing to produce the video footage that may have recorded the use of force at issue.   A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally held to a clear and convincing standard. Plaintiff’s decision to suddenly cry foul on the eve of trial did not go over well with the Court.

As part of the e-discovery process, we use digital means to identify relevant information for use in a legal proceeding. The proceeding may be a large-scale medical malpractice lawsuit, a patent infringement case, a government investigation, or countless other legal actions. However, the skills and resources used in those types of matters can also be used in other areas.

New technologies are being created and utilized every year. The most significant developments lately are the rise of chatbots - software applications that allow for online chat conversation via text or text-to-speech, without any direct contact with a human operator. Currently, the chatbot garnering the most attention is OpenAI’s ChatGPT program. This article will focus on this technology and how it works either for or against the E-Discovery review process.