KT LitSmart

“You’re gonna need a bigger boat.” 

This iconic line was uttered by Chief Brody in the 1975 blockbuster film Jaws when he first saw the massive size of the shark they were trying to catch. At that moment, Brody realized they were in completely over their heads, and the boat they had was not big enough to accomplish their task. While Quint’s Orca fishing boat and his traditional methods were capable of handling previous assignments, they were not going to be enough to take on the enormous shark they were chasing. 

For better or worse, the digital environment we live in has resulted in an explosion in the number of documents and amount of information created and used by companies in their daily operations. A mid-sized company’s internal emails alone can run into the tens of thousands a day, and that is before factoring in reports, meeting minutes, studies, presentations, and other business documents. Adding in external emails and related attachments, you are looking at millions of documents a year. Because of this increased volume of data, companies dealing with potential litigation must adjust accordingly. 

Like Brody, they need a bigger boat. An effective e-discovery strategy can provide companies with a bigger boat capable of handling even the most massive litigation matters.

The emergence of ephemeral messaging applications to communicate with friends, family, and coworkers quickly, securely, and effortlessly has boomed over the past decade. In that time, users of ephemeral messaging apps have risen significantly, from millions to billions of active users! Ephemeral messaging is an integral and evolving part of both individual and company communications with advantages and challenges impacting companies and the legal industry. Companies must consider the ramifications of their employees' use of ephemeral messaging and adopt policies and procedures to best protect themselves and comply with requirements relating to litigation and regulation. Courts have already begun addressing the failure to preserve relevant ephemeral messages and have been issuing sanctions in a myriad of legal challenges. Ephemeral messaging is here to stay, and companies, courts, and attorneys must understand and adapt to evolve with this emerging technology.

Changes to Federal Rules of Civil Procedure 16(b) and 26(f) are projected to come into effect in December 2025 that have been promulgated to address what proponents refer to as the “‘privilege log’ problem.” December 2025 is still relatively far in the future and whether the proposed amendments to Rules 16(b) and 26(f) are actually adopted is still subject to additional approvals, including approval by the Supreme Court. Nevertheless, bear in mind that nothing in the current Federal Rules of Civil Procedure prevents the parties from implementing the more proactive approach the proposed amendments seek to achieve. 

There are few things more dreaded in discovery than the time-consuming, tedious, onerous, beastly privilege log – especially in complex litigation matters involving thousands of pages of documents. These logs, however, are a critical component of the E-Discovery process that requires careful attention to detail in planning, analysis, and preparation. In this blog post, we will explain what a privilege log is, discuss the various types of privilege logs, recommend pre-privilege review strategies, and address post-submission concerns.

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?