Protecting the right to attorney client privilege is one of the most expensive and complicated parts of eDiscovery, but there is little guidance to help lawyers. To fill this void, Nextpoint has updated and expanded our Best Practices Guide for Protecting Privilege, including the most important cases through the end of 2013. In clear and straight-forward language, this free white paper breaks down the recent case law and condenses it into simple instructions for protecting privilege in any matter.
There are hundreds or reported cases where lawyers lose the right of attorney client privilege from simple, avoidable mistakes. The Best Practices Guide for Protecting Privilege white paper has boiled dozens of the most important and precedent-setting privilege cases into ten sections. Each section explains the guidance from the bench on how to actively protect your rights in litigation, including the three-part test courts use to determine when privilege is waived for inadvertent production, special areas of concern like privileged attachments, and the controversial clawback provision.
This white paper is available as a PDF, which you can download along with other Nextpoint resources and articles from the Nextpoint Library page. Click here to download.
Executives from phone giant Nokia got a nasty surprise when they sat down to negotiate an important licensing agreement with competitor Samsung. Samsung representatives demanded that Nokia give them the same terms as Nokia had given Apple in an earlier agreement. The Apple agreement was supposed to be confidential, but Samsung executives allegedly bragged that they had all of the details of the secret deal.
According to court documents, they even bragged that they had gotten the information directly from Apple’s lawyers.
“All Information Leaks”
Apple’s lawyers did nothing wrong. According to a recent court order following the ongoing Apple v. Samsung lawsuit, attorneys had produced patent license agreements, including a June 2011 license between Apple and Nokia. The attorneys had correctly marked the Apple-Nokia license as “Highly Confidential —Attorney Eyes’ Only,” as permitted by the court’s protective order. Apple also produced and marked as “Highly Confidential —Attorney Eyes’ Only” similar patent license agreements it has reached with Ericsson, Sharp, and Philips. That information was included in a report which was marked Confidential.
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What is the first thing people say about lawyers? Do people talk about how great their lawyer is? Do they talk about the zealous representation, or ethical service and high standards?
Sadly, no. They talk about their bill.
No matter how good legal representation is, people usually talk about how much it cost. Even when parties win large judgements, they usually qualify it by saying, “yeah, but my lawyer took half.”
It’s time to change that conversation. We believe the place to start is in legal technology.
Last week, we looked at current efforts to make eDiscovery more affordable. Right now, rule makers are considering new language in the Federal Rules of Civil Procedure that would force parties to keep discovery proportional to the potential award in a given matter. That is, if a case might be worth limited amount of money, parties will be forced to limit discovery so a potential judgement isn’t eaten up in fees to litigation technology providers. The Senate pushed back on that idea, wondering if proportionality rules would make it difficult for aggrieved parties to obtain all of the data necessary to make their case through discovery. Read More >
This is the first in a two-part series looking at how Judges and Federal Rule-makers are attempting to make eDiscovery less expensive.
The last time the federal courts adopted new rules for the use of electronic evidence in litigation, things went pretty well. Everyone knew that courts needed rules to make lawyers take electronic evidence seriously, and in 2006, new rules were adopted. However, less than a decade later, it is obvious the discovery process is still broken, but the fix is going to be a lot harder to come by.
The current plan includes new language that will limit the scope of discovery to make affordable eDiscovery possible. That is, courts will impose a limit on the number of depositions, documents collected, or computers to be searched before a trial can start. The most recent proposed language says discovery must be:
…proportional to the needs of the case, considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
That is some beautifully crafted legalese; it’s obvious that a handful of very smart lawyers worked on that language. However, to put that high-minded language into practice is not going to be easy. For example, Judge Grimm (who we have spotlighted as one of the leading eDiscovery judges in the country) recently proposed an order that limits the amount of discovery to be pursued in a matter. He suggests that in some cases, lawyers should only be allowed to ask for 15 categories of documents from just 10 custodians from the last five years. Only reasonably accessible sources shall be searched and parties should not be allowed to bill more than 160 hours for search and review services. Parties may have to show how effective their document searches were executed.
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We’ve talked in the past about why legal services providers are primed for a newspaper-like contraction. Both newspapers and law firms deliver a text-based product, delivered by geographically-focused entities that largely rely on their reputation and institutional rules to protect their business models.
And both never believed that Internet-based technologies would impact their industries. Most lawyers still don’t believe it. But it’s not working out for most newspapers. The venerable Washington Post sold for a mere $250 million dollars to Jeff Bezos. Even more importantly, Google is now larger than both the newspaper industry and the magazine industry.
So how will disruptive technological shifts impact the legal industry?
Let’s look at the players:
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Just a few years ago, the New York Times predicted that an army of robots would put attorneys out of work. It’s an interesting premise, and there may be some truth in it. But in my experience in legal technology, the real challenge is not that technology is taking over legal tasks. It is that, too often, law firm are saddled with outdated technology that only makes their jobs harder.
Why isn’t there better litigation technology being used in law firms today?
In theory, technology is developed and deployed with one sole purpose; to provide a solution. Like helping an engineer develop a new part for a jet engine, or assisting a doctor in diagnosing diseases. On the web, technology is used to quickly process large volumes of data to detect travel and pricing trends and spit out real-time airfare savings.
You may not even be aware of how much technology impacts your life. Just think about all of the technological advancements that have been made and deployed just so you can read this blog post from your current location. It is so prevalent in today’s world that we often forget what life was like before smart phones, Facebook, online shopping, and GPS.
But if you look at the current technology landscape deployed in law firms, it is almost universally difficult to use and inefficient. As an Account Director at Nextpoint, I have the unique opportunity to visit and meet with law professionals across the country. They work at firms of varying sizes and practice areas but I hear the same complaints over and over again. It is usually said with a smirk and slight shaking of the head, “Michael, what we use sucks.” “It’s slow.” It’s old.” Or my favorite, “Its all paper.”
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