Category Archives: Estorian Looking Glass

The Four Factor Test to Determine Whether Corporate Email is Protected by Attorney-Client Privilege

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The issue of attorney-client privilege remains one of the most revered privileges that the American judicial system bestows upon clients as it enables any person to communicate open and honestly with his/her attorney. Now this right is under scrutiny as keeping communications between a defendant and his/her attorney has become difficult to achieve due to the increased role that email plays as a form of primary communication medium between them.

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Government Agencies No Longer Receive a ‘Get out of Jail Free’ Card When it Comes to eDiscovery

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Organizations across the United States have steadily felt the sting of legal action involving eDisocovery as they are quickly discovering that it is no easy feat to comply with mandates such as the Federal Rules of Civil Procedure (FRCP). This is resulting in mounting sanctions and a steadily decreasing patience in courts towards eDiscovery mistakes. However state and local government agencies were conspicuously absent from this steady stream of eDiscovery rulings.

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EchoStar Discovers that Images Matter in Email Too

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DCIG has consistently stressed the need for good eDiscovery processes for electronically stored information (ESI). A steady stream of sanctions surrounding poor eDiscovery strategies is a consistent reminder that a lack of planning can be damaging to your case. A recent case, Ferron v. EchoStar Satellite, LLC., in one such reminder that images and links in emails can be subject to eDiscovery and that the failure to preserve them could be costly.

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California’s New State Law Raises eDiscovery Stakes; Costs Poised to Skyrocket

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“As California goes, so goes the nation” is a phrase that I have heard before and it immediately came to mind when I read that Governor Schwarzenegger had signed California Assembly Bill 5, otherwise known as Chapter 5 – Electronic Discovery Act. Signed into law on June 29th, 2009, what makes this law significant is that it expands upon the verbiage used in the Federal Rules of Civil Procedure (FRCP). So for organizations already worrying about the FRCP, take heed because the Electronic Discovery Act takes eDiscovery to yet another level.

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SEC Case Reveals Former AIG Execs Demanded Email Evidence Be Destroyed

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When the wheels came off the American economy in the fall of 2008 there was a steady stream of companies lining up for a government bailout and none were of a higher profile than American Insurance Group (AIG). Over a chorus of jeers from the general public the United States Government set out to rescue the “Too Big to Fail” company by setting up an $85 Billion dollar reserve in exchange for 79% ownership of the company. Emotions ran high during this time period and no matter which side of the aisle you were on in regards to the bailout of AIG, the current SEC complaint against AIG will make most any person angry.

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If an “Approved” File Exception List for Keyword eDiscovery Searches Exists, I Couldn’t Find It

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One of the most significant areas of eDiscovery is performing a relevant keyword search of data to produce the proper documents as mandated by eDiscovery requests. This collection of ESI (electronically stored information) holds particular importance as produced documents will go through a review process prior to producing these to opposing counsel. As data continues to grow within organizations eDiscovery costs continue to rise therefore it is extremely important to have a robust search that reduces non-relevant information during a search.

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Admitted Bad Habits around Email Reinforce Why Companies Need to be Proactive in their Email Management Policies

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Every now and then a study comes along in IT that makes you wonder if the public will ever listen to security alert messages as some of these studies yield results that quite literally make you want to throw your hands up in frustration. A case in point is the recently released study by Message Anti-Abuse Working Group (MAAWG) entitled “A Look at Consumers’ Awareness of Email Security and Practices.” However it is the report’s subtitle “Of Course, I Never Reply to Spam – Except Sometimes” is what gets to the heart of the matter and what frustrates me as it shows that email users do understand the risks of spam yet still click on the message.

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90 Day Email Retention Policies are not a One Size Fits All

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A recent report from Ferris Research estimates that the total number of business e-mails sent in North America alone will surpass 139 million in 2009 and 143 million in 2010. This volume of email growth continues to put pressure on IT staff in every size organization to manage its inflow, outflow and retention. While the mechanics of managing emails inflows and outflows can be fairly straightforward, when it comes to setting policies as to how long to retain these emails, the picture can start to get a bit hazy.

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Dell Makes a “Mockery” of Court System; eDiscovery Ineptness Earns Dell Contempt of Court and $25,000 Fine

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First Louisiana State Court Judge Rosemary Ledet found Dell in contempt of court; then she accused Dell of making a “mockery” of the system; and then, to give her statement some teeth, she hit Dell with a $25,000 fine. Granted, a $25,000 fine is not a huge sum of money for a company like Dell and it certainly was a lot smaller than the $182,000 requested by Plaintiff’s attorneys. But the tongue lashing and ensuing fine should serve as a wake-up call to all size organizations that judicial patience in regards to eDiscovery is running thin and callous or indifferent attitudes towards eDiscovery are no longer being tolerated.

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A “Destroy All Data” Policy will not absolve You of Your Data Retention Responsibilities

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“If it really costs millions to do that [e-discovery], then you’re going to drive out of the litigation system a lot of people who ought to be there.” This quote by Supreme Court Justice Stephen Breyer cuts to the heart of current issues surrounding eDiscovery. A recent DCIG blog highlighted how out of control litigation costs have become and have left companies with hard decisions on whether it is best to settle cases based solely on the cost of eDiscovery or attempt to litigate. But as companies face unprecedented economic pressure, a key question comes to mind, “Are these costs driving risky data retention strategies such as destroying all of your data?”

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The Cost of eDiscovery is Bringing the American System of Justice to the Brink of Destruction

By | Estorian Looking Glass | One Comment

“There is no truth if you cannot find relevant evidence and, unless companies get their eDiscovery act together, eDiscovery is about to destroy the American System of Justice as we know it.” That statement summarizes the opening remarks that Ralph Losey, the noted eDiscovery attorney of FloridaLawFirm.com, made during a recent presentation. From there, he went on to explain why he believes most organizations – public or private, large or small – have no viable strategy for eDiscovery and why a reactive approach to eDiscovery is putting the viability of the American System of Justice as we know it at risk.

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Condemning Emails, Revived SEC Probe Contribute to Decision to Voluntarily Shutdown Pequot Capital

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DCIG has posted several blogs discussing the economic downturn, the banking crisis and the role that hedge funds played in the seemingly endless stream of bad news and frauds that have graced the headlines. So, when it was announced that the prominent hedge fund Pequot Capital was shutting down due to the SEC reopening an insider trading probe, it was another sign that the largely unregulated hedge fund industry is back once again in the SEC’s crosshairs.

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The Credit Card Act of 2009 Brings Email Opt-out Front and Center

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It isn’t often that bipartisanship wins the day among politicians, but when an issue arises that stirs the ire of the public such as the credit card industry has done there is a sudden ability to get things done. This was evident in the recently passed Senate Bill 414, more commonly referred to as the “Credit Card Act of 2009.” In an amazingly bipartisan vote of 90-5 the bill passed.

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New EU Directive May Go Too Far in Electronic Surveillance

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On March 15th, 2009, a new law went into effect in the European Union (EU) that set in motion a controversial new course for government access into digital information. The EU Data Retention Directive was derived from the perceived need of the EU’s member states to protect national security or public safety. Its goal is to provide law enforcement the access to information it needs to protect public and national interests but it may go too far by capturing too much public information that the public may not view as so public

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Court Rejects Argument that Companies Can Transfer Responsibility to Employees for Email Management and Retention

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A current patent infringement lawsuit has provided a great reminder of why email retention policies and procedures as well as archiving technology are invaluable in today’s eDiscovery environment. While discussing policies and procedures can be a mind numbingly boring exercise, this case provided some great reminders as to why they are important in setting the groundwork for a robust and defensible eDiscovery process.

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Predatory Lending Practices are Back As Banks Bite the Hands That Feed Them

By | Estorian Looking Glass | 3 Comments

If you are like me, trying to comprehend the logic behind the current bank bailouts and the billions of taxpayer dollars being infused into the financial sector is becoming harder, not easier, to understand. For instance, Bank of America (BofA) just reported receiving $20 billion dollars in bailout money as well as loan loss commitments of another $97 billion from the federal government. Yet with BofA taking billions of unearned dollars, what can their customers expect in return? Not a thank you, as one might expect, but instead a slap in the face.

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Email–Not Just Communication But a Legal Document of Record

By | Estorian Looking Glass | 2 Comments

While we may think of email applications as a communication tool, the formal definition of what constitutes an individual email is changing. Regardless of an email’s folder location, intent, or status, email is a vital piece of corporate electronic information and no different than any other document. Email is now much more than just a communication mechanism but a legal document of record that can be used to an organization’s advantage.

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2009 Stimulus Bill Provides Needed Funding For New State and Local Government eDiscovery Initiatives

By | Estorian Looking Glass | One Comment

It isn’t just businesses that are hurting in this down economy. As companies cut back it is having repercussions everywhere and local, state and federal government are not exempted from these cutbacks even as their requirements also increase. Case in point, a recent case decision handed down determined that the SEC must comply with the Federal Rules of Civil Procedure (FRCP) just like “any other litigant” that puts the same burdens of eDiscovery and legal holds on governmental agencies that previously only affected private organizations.

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Landmark Ruling Brings SEC under the Microscope; Establishes Government is not immune from the FRCP

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On January 13th, 2009, a ruling in the S.E.C. v. Collins & Aikman Corp was handed down in what is sure to become a landmark ruling. What makes this an important ruling? Judge Shira A. Scheindlin ruled that the SEC had to abide by the Federal Rules of Civil Procedure (FRCP) just “like any other litigant.” This could have ramifications across government entities as the FRCP increasingly touches federal, state and local governments. It is already a well documented fact that the FRCP is changing how private industry manages its data but this ruling sets out numerous areas in which the SEC failed in its internal eDiscovery processes and rightly was held accountable.

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