March 19, 2014 Articles

A Privileged Position—Guidance for Nonwaiver Agreements and Orders

By David L. Schwan

For many young lawyers, the thought of discovery is usually preceded by the word “electronic.” You simply cannot fathom a world in which paper was the paramount, if not exclusive, realm of discovery. And while e-discovery has brought many helpful innovations to litigation, the legal world has confronted new problems requiring new solutions.

For instance, before email became the leading method of business communication, document discovery usually focused on a few file cabinets that were identified as possessing potentially responsive information. This would include relevant memoranda and notes, which were passed around and ultimately stored in an identifiable place. Then, with the advent of email and electronic documents, multiple versions of a single document were exchanged among several people across an organization and beyond. This led to an exponential rise in potentially relevant data for lawyers to review.

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