Legal Updates

One of the greatest fears in any litigation matter is that you will somehow accidentally produce work product or attorney-client privileged documents to the opposing side and waive the privilege. As a result, it has become standard protocol for parties to enter into clawback agreements that protect sensitive electronically stored information (ESI). Clawback agreements allow parties to agree that the inadvertent production of privileged information will not automatically waive the privilege and provide a process for the return or destruction of that privileged material.

You may have read my colleague Starling Underwood’s post on two recent Second Circuit decisions discussing sanctions for spoliation. If you have not, I encourage you to read it here.  In this post, and continuing our music-themed sanction discussions, I narrow the focus to Federal Rule of Civil Procedure Rule 37(e), which is used to determine whether and what sanctions are appropriate when ESI spoliation occurs. A recent decision from the Minnesota District Court involving the estate of the artist Prince Rodgers Nelson (“Prince”), Paisley Park Enterprises, Inc. v. Boxill, provides a detailed review of the sanctions analysis under Rule 37(e), while dealing with a category of very common ESI data often at issue in litigation today –  mobile phone text messages.

Picture this: Your team has completed the first level and quality control reviews. Your documents have been produced, your privilege log is out the door and you have just received the incoming document production from the opposing party. Now you have a universe of documents with the potential to be used as deposition exhibits, in expert reports, and as trial exhibits. It would be nice if there was a way to take advantage of your previous work identifying hot documents during first level and quality control reviews by using them to identify documents with similar issues or themes in the opposing parties production. You and your team spent days, weeks, or even months reviewing documents for production. Leveraging this time (and costs) would be greatly appreciated by your client. But is that even possible? Yes it is! 

In traditional litigation, third party discovery subpoenas are routine and the authority of the parties or the courts to issue them is well recognized. In arbitration proceedings, however, whether you can issue such third party discovery subpoenas varies depending on the controlling law in your dispute. This article addresses the growing split in the federal circuits with respect to whether third party discovery subpoenas are allowed in arbitration proceedings.

Last year, in In re Broiler Chicken Antitrust Litigation, the United States District Court for the Northern District of Illinois laid out a very detailed protocol for conducting TAR that can serve as a go-by for parties wishing to conduct TAR in their own litigation. If you are considering implementing TAR in your next review, you may want to take a look at this. 

This blog is part one of several regarding how to effectively and efficiently manage electronic discovery in large, complex litigation. It is in these types of matters that special attention to electronic discovery is crucial to the client’s overall success. We begin here with the earliest stages: data identification and preservation.