Category — Technology Outsourcing
Breaking the Seal: Does Using Third Party eDiscovery Vendors Raise Privilege and Work Product Issues?
We’re not breaking news when we tell you that the exponential growth of electronic documents generated by clients has complicated the discovery process. Reducing this massive volume of information down to the relevant information needed to resolve a dispute requires the use of technology for collecting, filtering, processing, analyzing and producing electronically stored information. Attorneys now have to deal with metadata, servers, and social media in order to litigate the merits of cases. Ethics rules have been modified to require lawyers to understand the risks and benefits of technology. And preservation sanctions have alerted attorneys to the need to understand the difference between an email server and a locally-archived PST file. Attorneys should not try to lead double lives as data processors and litigators. Given the real need to properly handle these issues, consulting technology and litigation support providers is common and necessary. But does involving these third-party resources create a risk to the attorney client privilege or work product protections?
July 17, 2014 No Comments
Your litigation in 2014 will involve requests for production of electronically stored information (“ESI”), and there is a good chance that some of that information is stored somewhere in “the cloud.” ESI stored in the cloud has unique challenges and opportunities. Determining what relevant, discoverable ESI resides in the cloud; assessing whether it is, or should be, within the scope of your discovery plan; and executing a process for preserving, collecting, and producing it all require an understanding of the legal and practical issues impacting cloud storage. Here are a few key considerations to help you navigate the process.
April 17, 2014 No Comments
The paper check could disappear from the lives of everyday Americans within 12 years, according to researchers at the Federal Reserve of Philadelphia. In a recent poll, 38 percent of respondents indicated that they “never” write personal checks. In fact, the new trend in personal banking is the checkless checking account.
However, American businesses large and small are still pulling out their check ledger and making more 50 percent of their payments the old fashioned way—by paper check. That rate is down from 81 percent of business-to-business payments by paper check in 2004, 74 percent in 2007, and 57 percent in 2010. But even though B2B check payments have decreased in the past decade, the rate of decrease has started slowing—suggesting that it may be difficult for businesses to completely convert to a system of electronic payments.
April 8, 2014 No Comments
As more companies embrace the bring your own device (BYOD) model, the old adage “what’s mine is yours and what’s yours is mine” is proving more accurate than some in-house counsel might want – especially when it comes to the possession and ownership of electronically stored information (ESI). Indeed, it might be time to add “no employer custody? no problem!” to the eDiscovery misconception list.
January 21, 2014 No Comments
The continued adoption of cloud computing tools, like web-based email, cloud data storage, and hosted software services, means that important communications will often be maintained by third-party electronic service providers rather than the author of the communication. During litigation, if a party suspects that the other side used a cloud-based service to communicate about the subject of the dispute, the party needs to figure out the best way to acquire the communication. The answer may seem simple: the electronic service provider is a non-party in possession of relevant documents – so just serve a third party subpoena requesting the documents. After all, the service provider might produce a stockpile of valuable communications, and the requesting party can avoid the headaches of fighting with the opposing side over issues of relevance, responsiveness, or privilege. If the service provider resists, the requesting party can always invoke the power of the court to enforce the subpoena.
But not so fast – some may argue that the Stored Communications Act (“SCA”) puts all of those great cloud-stored communications beyond the reach of a non-party subpoena, and, even worse, serving such a subpoena could lead to some serious and expensive discovery disputes with the opposing side.
April 11, 2013 No Comments
“Data Dumping” — the idea of dumping terabytes of data on the opposing party in discovery. By now we’re all aware that the practice is frowned upon, if not expressly forbidden. However, when faced with broad discovery requests, a relatively short time period in which to respond, and a mountain of as-yet-unreviewed data, some litigants find it all too easy to succumb to the temptation of simply turning over all of the data to their adversary without first conducting a meaningful review. After all, what’s the worst thing that could happen? [Read more →]
January 4, 2013 No Comments
Big data, business intelligence, and cloud computing. Concepts like these were largely unheard of a decade ago. Today, complex information management tools like these are stock-in-trade for many businesses and the engines that make modern commerce hum. Further, one of the big advantages of the Internet age is that organizations now have the ability to offload the management important technology functions to third parties. That’s what is at the heart of technology outsourcing. Obviously, farming out core functions to a vendor can create significant risks. In this post, we consider how firms can use contract provisions to manage some of these risks. An exhaustive list of key outsourcing contract provisions is beyond the scope of this article. Instead, we focus on a few significant areas to consider when entering into a technology outsourcing contract.
November 8, 2012 No Comments
Insurance against loss from cyber attacks is proliferating, and a three-judge panel in the United States Court of Appeals for the Sixth Circuit recently found coverage for an insured under a more generic computer fraud rider to a commercial crime policy, providing protection against loss arising from a data breach involving computer hackers stealing personal confidential information. Specifically, in Retail Ventures, Inc., v. National Union Fire Insurance Co. of Pittsburgh, Pa., the court affirmed the trial court’s rulings in favor of the insured (1) that the loss from the data breach “result[ed] directly from” the hacking scheme and (2) that an exclusion for loss of confidential information did not apply to the loss of customer information.
September 19, 2012 No Comments
We all know that litigants or potential litigants have an obligation to preserve potentially relevant and discoverable evidence, under certain circumstances, when litigation is reasonably forseeable. But what are your obligations when a third-party controls your documents? And what are your preservation obligations if you are a non-party to the suit? Preservation is a very fact-specific obligation that requires analysis of the unique facts of each matter. [Read more →]
July 25, 2012 No Comments
eMerging Solutions to E-Discovery Issues: Assembling the Right Team and Technology to Mitigate Risks, Reduce Costs, and Leverage Data
The explosion of data in our world is almost incomprehensible and requires law firms and their clients to think more proactively about electronic information in the context of litigation and government investigations. The same old systems, practices and personnel that sufficed to collect and produce paper documents or small volumes of email won’t cut it in a new world order where a single individual can store the equivalent of a truck load of documents on a device the size of their thumb. The reality of managing these increasing volumes of data in a rapidly evolving legal and technical landscape is starting to impact even those who thought “e-discovery is just discovery” a few short years ago. Taking meaningless gigabytes and filtering them into useful information that can efficiently resolve a legal matter while simultaneously reducing costs and risks requires the right combination of people, process and technology.
At Troutman Sanders, our solution was to expand our dedicated team of lawyers and technologists who focus on e-discovery and arm them with the most advanced technology through a new legal services company – Troutman Sanders eMerge. eMerge combines strategic legal thinking with state-of-the-art technology to effectively manage e-discovery issues in litigation and investigations of all shapes and sizes.
July 2, 2012 No Comments