Gibson Dunn Mid-Year Electronic Discovery Law Update – Part 2

The content of this blog series is based upon Gibson Dunn’s 2011 Mid-Year E-Discovery Update, with the permission of its authors. This publication can be read in its entirety at: http://www.gibsondunn.com/publications/Pages/2011Mid-YearE-DiscoveryUpdate.aspx

Gibson Dunn recently released its 2011 Mid-Year E-Discovery Update, as discussed in part one of this series posted on 9/7/2011.  This final post endeavors to highlight only a few topics within Gibson Dunn’s valuable publication that affect our industry.

social-media-electronic-discoveryDefining “Inadvertent”

One issue relating to e-discovery that was addressed by the courts in early 2011 is inadvertent disclosure of privileged information. In the recent past it has been a struggle to define “inadvertent” as it relates to technology, with the judiciary seeming to believe that manual review is crucial to the test of whether disclosure of privileged information was “inadvertent” or could have been avoided with due diligence in manual review of at least a sampling of documents.

The Effect of Social Media

It appears that, while courts are finding social media information to be discoverable, the ability to authenticate such data (due to ease of potential manipulation) may become crucial. Authentication may be accomplished through deposition, collection of hard drive data (including Internet history) or using information received directly from the social media or internet service provider surrounding who created the at issue user account or posted to the at issue social media site. It is important to also note that although users of social media sites are advised that they have no traditional right to privacy relating to their use of a site, it is probable that the court will require adequate justification to delve into an individual’s social media information. Having such justification, the courts are continuing to support the discovery of information surrounding an individual’s use of social media.

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Privacy in the Workplace

Despite the decision in Stengart v. Loving Care, 990 A.2d 560 (N.J. 2010), courts seem to be reluctant to allow an assertion of privilege when the information at issue arises from employee use of company resources for personal reasons (such as accessing web mail or using a company email account to communicate on personal issues). The key factor in determination of privilege in this instance appears to be the employer’s policy as to personal use of company equipment and/or email accounts. Having such policies in place seems to impede the employee from later asserting a privilege, especially if that employee signed an acknowledgement of receipt and understanding of such policies. Interestingly, one court went so far as to rule that a party had waived marital privilege in neglecting to delete older personal communications with his spouse upon receiving notice that personal privacy policy changes were being implemented.

As the judiciary continues to grapple with discovery issues that arise from the need to request and review electronically stored information and rapid growth in the technology industry for handling such data, defensibility in e-discovery must evolve and its service providers must adapt. Understanding the e-discovery process and retaining an electronic discovery services consultant or service partner, such as Advanced Discovery, helps navigate toward more defensible discovery processes.

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