2008 in Review - Developments in Electronic Discovery

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In 2008, courts and Congress sought to facilitate the review and production of electronically-stored information (ESI) and to minimize the risk that a party will waive the attorney-client privilege in cases of an inadvertent production of privileged ESI. These clarification efforts, however, carry with them complexities of their own that potentially complicate the ESIproduction process and frustrate the unwary practitioner.

These key developments—drawn from two significant rulings and from revisions to the Federal Rules of Evidence and Civil Procedure—highlight the importance of:

implementing a comprehensive electronic discovery plan at the outset of any potential dispute, and conducting a thorough review of potentially relevant ESI;

preparing a “clawback” or non-disclosure agreement, based on procedures and a document review protocol that the court will find reasonable (and seeking court approval of that agreement for maximum protection);

and implementing a comprehensive review of documents for privilege, instead of relying solely on keyword searches.

For a detailed discussion of any of these developments, and our advice on understanding and implementing the new standards, please read full article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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