January 01, 2012

iWitness: The Challenge of Electronic Communications: Privilege, Privacy, and Other Myths

Lawyers beware. When attorney-client communications occur by email from home or work, the attorney-client privilege can easily be lost.

Daniel B. Garrie and Siddartha Rao

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Conducting keyword searches in large volumes of electronically stored information (ESI) is often an unavoidable step in the process of electronic discovery. Companies and counsel faced with e-discovery have little choice but to use search terms, or keywords, in a threshold exercise to separate relevant from nonrelevant information. This is because traditional document review techniques involving hard copies are not practical or financially feasible when reviewing a nearly endless amount of documents in electronic form. Counsel, therefore, tend to identify valid search terms and apply those terms to a designated set of documents.

Actual searches have become more sophisticated with predictive coding—“a combination of technologies and processes in which decisions pertaining to the responsiveness of records gathered or preserved for potential production purposes . . . are made by having reviewers examine a subset of the collection and having the decisions on those documents propagated to the rest of the collection without reviewers examining each record.” Jason R. Baron, “Law in the Age of Exabytes: Some Further Thoughts on ‘Information Inflation’ and Current Issues in E-Discovery Search,” 17 Rich. J.L. & Tech. 9 (2011), quoting Electronic Discovery Inst., eDiscovery Institute Survey on Predictive Coding 2 (Oct. 1, 2010). Disputes over search methodology, however, often result in the court determining how the search is conducted.

 

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