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Protecting eDiscovery Privilege, the Case Against File Sharing Sites

File sharing services, such as DropBox, have become increasingly used as eDiscovery repositories for incoming data and outgoing productions. With easy sharing, via a simple URL link, it’s understandable why these tools appear to offer an optimal solution for sending and receiving massive amounts of data as one does with eDiscovery litigation. Unfortunately, this “solution” can become a massive liability and we caution clients against using these services because it is simply too easy to accidentally share privileged documents. In fact, there are several cases in which information has been inadvertently shared and the results were disastrous for the offending party.

What’s the problem?

It is not that it can’t be done correctly, it is more that one is asking for problems with an open platform like this. With default settings in place, the “owner” of a file relinquishes control of the data within the file when shared with other users. Once shared, the data within the file can be copied, changed and shared without the owner’s permission. New users can be added to the file to view the data and, with seemingly unlimited “cooks in the kitchen,” it is too difficult to maintain chain of custody and ensure responsible sharing. A few specific issues with file sharing services include:

  1. Shared files and folders are not static. This is not the equivalent of sending a document attachment via email. The shared file or folder remains “live”, thus any future additions or changes can still be seen by people with the link into perpetuity.
  2. On many platforms, user groups are created and can be duplicated to other folders with a simple click. For example, if several users have access to “Case X Final Production” folder, another attorney could grant access to all users in that file to “Case X Notes”- not realizing that opposing counsel was part of the original group.
  3. The link is not automatically password protected so anyone with the link can view the file unless proper authentication measures are manually enabled. This literally means that without setting up a password, anyone on the internet could potentially access your file.

What have the courts said?

In Harleysville Ins. Co v. Holding Funeral Home, Inc., Case No. 1:15cv00057 (W. D. Va. February 9, 2017), an insurance company refused a funeral home’s fire damage claim after determining the fire was caused by arson. An investigator for the insurance company uploaded video taken at the scene to a platform sharing site, box.com. The investigator sent the link to the insurance company attorney who then shared it with the funeral home attorney in order to substantiate their arson claim. Later, however, the insurance investigator uploaded additional files to that same folder, which the funeral home attorneys still had access to. The court found that because the link and files within were not properly password protected the insurance company had, in essence, “left the files on the park bench” in a virtual sense and thus waived privilege.

From the court:

Whether a company chooses to use a new technology is a decision within that company’s control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.

What does Lexbe Recommend?

We have developed the Lexbe eDiscovery Platform to include a number of checks against inadvertent disclosure of privileged docs. We create a secure encrypted link specific to each production that can then be safely shared. By insulating exports with secure production links, we help prevent user error that could result in sharing documents not meant for opposing counsel or outside parties.

Profanity and Obscenity Search Tool Released

George Carlin’s famous 7 dirty words, apparently, do not apply to today’s modern workforce. While television censors gagged Carlin’s list, work emails and texts receive no such censorship. Even Carlin might be amazed by what otherwise intelligent people include in their business correspondence.

You cannot afford to miss inappropriate language in your eDiscovery document review. Profanity in off-color emails or text messages can discredit even the strongest witness. With any eDiscovery search you will want to zero in on those documents where the writer’s tone suggests urgency, misconduct or emotion. Profanity is a good indication of stress or impropriety, so including obscenities in your keyword search should be de rigueur for most cases. In some cases (like employment discrimination) pervasive profanity and obscenity can drive case outcomes.

Based on our experience, Carlin’s ‘seven dirty words’ are not nearly enough to address usage in modern commercial cases. So we’ve preloaded a comprehensive list of 700 profane and obscene terms and phrases, to make your profanity search as comprehensive and as easy as possible. Let us know if we’ve missed any that you know!

Lexbe has built a Profanity Search Tool integrated into our platform so that you can run a comprehensive search and pull all of those documents into one file quickly. With over 700 terms there is a good chance our search tool will out perform even the most creative among you. Carlin would be impressed.

You can read more about how to launch this tool by reading our technical note on this feature by following the link below. Our team is always available for a quick demo, so if you would like to see the Profanity Search Tool in action, contact sales@lexbe.com.

Technical Note: Profanity Search Tool>

Note: The Profanity and Search Tool is available only for Lexbe customers who are practicing U.S. attorneys and legal professionals, over the age of 18, for use in connection with legal document review.

New! Annotation and Highlighting Functionality

Highlight Transcripts and Annotate Key Documents

Users can now review and highlight transcript text and associate deposition statements made by case participants with important documents and timeline events. In addition, key documents within Lexbe eDiscovery Platform can now be annotated with notes and highlights in preparation for a deposition or trial testimony. Important statements within an email, for example, can be highlighted and a separate on-page note added to prompt particular lines of questioning. Learn More about how you can use the new annotation editor to analyze incoming deposition transcripts and prepare for depositions and trial within your review environment.

Lexbe eDiscovery Platform is Heartbleed Safe

Over the last couple of weeks the media has reported on the Heartbleed bug that affected many web sites. Lexbe eDiscovery Platform was never vulnerable to the Heartbleed bug, so there is no need to change your password. If you do wish to change your Lexbe eDiscovery Suite password at any time for any reason please follow these instructions.

Using Custom Redaction Logs

Custom redaction logs can be created within Lexbe eDiscovery Platform to track and report on documents that you have redacted for confidentiality, privilege, or other reasons. Whether you have created the redacted version using Lexbe eDiscovery Platform’s redaction tool or using another utility, you can use custom redaction logs to help ensure that case information isn’t inadvertently disclosed. Learn more about creating custom redaction logs using Lexbe eDiscovery Platform.

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