A Billion Dollar Fix for Free

http://ow.ly/9ffR4

An article by Craig Ball, Esq. on his blog Ball in Your Court.

The article discusses the Google v. Oracle dispute that has been the subject of recent decisions that discuss eDiscovery obligations, and are related to possible waiver of privilege.  At issue in the case was an inadvertent production of one draft of a document, where other copies of the document were withheld due to a privilege assertion.  The court held that the document did not meet the requirements to substantiate a claim of privilege, and the document in question is being admitted, damaging Google's position in the case.

The article states, "The e-discovery nexus arises from the way the copies were retained (reportedly as autosaved backups) and from the failure to intercept the copies before production. There are all sorts of bright ideas emerging from smart folks who have groundbreaking tools they could sell to that search naif, Google, to help it avoid this ever happening again. Reading some of these missives made me think of a post I wrote two years ago for the EDDUpdate blog called, “A Quality Assurance Tip for Privileged ESI.”  A link to the referenced article from two years earlier is provided in Mr. Ball's article.

The article further goes on to state, "One thing you should absolutely do is search the material about to be produced for examples of confidential attorney-client communications you know exist. That is, the stuff you most fear the other side seeing. Examples are probably right there in your file and e-mail. You should have a set of unique searches composed to ferret out these bombshells in anything you send to the other side. It’s the stuff for which you most need quality assurance and control, because it’s the stuff that would be most prejudicial if it crossed over."

In addition, the article also provides further advice, "I recently commented on a long, thoughtful post of Ralph Losey’s discussing Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010). I summed up my sentiments this way:

For all the many challenges there are to isolating privileged material in voluminous ESI, finding the privileged items well known to counsel and appearing in their own files need not be one of them."  A link to comment made to Ralph Losey's post is also provided.