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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.

Best Practices to Avoid Missing Key Evidence in Large Doc Review (Uber Index)

Nothing can be more disastrous than showing up at a depo and finding that your team missed a key piece of evidence in document review, but your opposition found it. Not finding that “smoking gun” admission, or allowing critical privileged information to slip through into a production can be avoided, but only if your search tools are fully functioning. Many attorneys assume that all eDiscovery processing approaches and search tools and techniques are basically the same, but nothing could be further from the truth. In this webinar learn crucial search functions and critical indexing differentiators that will protect you from inadvertently missing important evidence during eDiscovery.

Key Points

  • Overview Modern Search and eDiscovery Indexing Technologies
  • Basic and Advanced Search Options in Use Today
  • Search Indexing ‘Gotchas’
  • Pitfalls of Relying Solely on Image-Based OCR Indexing
  • Why Native Extraction Alone is Ineffective
  • Complexities of Working with Foreign Language and Translated Text
  • Optimal Seach with a Concatenated Indexing Approach
  • Takeaways

About the Speaker

Erin Derby is a Certified eDiscovery Specialist (ACEDS) and member of the Technical Services team with Lexbe LC. She specializes in working with clients handling eDiscovery in complex litigation and provides a high level of precision and expertise.

She provides guidance for technical discovery issues and procedures and ensures compliance with all court-ordered ESI guidelines. Prior to joining Lexbe, Ms. Derby was a Litigation Paralegal for 10 years for both plaintiff and defense law firms.

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Best Practices in Use, Authentication and Admissibility of Social Media Evidence

Social media can yield the most important evidence of your case, but only if you gather and use it properly. Social media has allowed individuals and businesses to communicate in new, unprecedented ways. Not surprisingly, it can be the most important evidence in your case. But identification, collection, authentication, admissibility and ethics rules require special consideration. Joining us for this webinar is Robert Keeling, partner at Sidley Austin and industry expert on the complex topic of social media eDiscovery.

Key Points

  • The Prevalence of Social Media
  • The Use of Social Media
  • Using Social Media as Informal Discovery
  • Applicable Ethics Rules, Guidelines, and Opinions
  • Takeaways, Tips, and Other Considerations
  • Authentication and Admissibility Considerations

About the Speaker

Robert Keeling is an experienced litigator whose practice includes a special focus on electronic discovery matters. He represents both plaintiffs and defendants in complex civil litigation throughout the nation and conducts internal investigations in the U.S. and throughout the world. Mr. Keeling has authored several articles on eDiscovery and social media and is a co-chair for his firm’s eDiscovery Task Force.

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eDiscovery Planning for the Plaintiff Lawyer

Leveraging hold notices, ESI protocols, meet and confer, and other opportunities obtain the evidence needed to successfully build a case. Trial lawyers often represent the primary requesting party for document-complex discovery and litigation. Increasingly, this can overwhelm how they traditionally have reviewed productions and marshalled potential evidence.

Plaintiff lawyers, particularly if operating on a contingency basis, must carefully budget their time investment and client expenditures, while continually revaluing the case potential. Exploding electronically stored information (ESI) collection sizes in modern litigation makes this a difficult balancing act, requiring litigators to thoughtfully plan their document request, create reasonable agreements with opposing counsel and aggressively advocate for their eDiscovery rights.

Craig Ball, a noted authority on eDiscovery and computer forensics, offers practical advice as to how trial lawyers can obtain the evidence they need to successfully build their case and effectively advocate for their clients.

Key Points

  • Responsibilities of the requesting party in setting the eDiscovery agenda
  • Best practices for litigation holds
  • How strategic agreements with opposing counsel can advance effective discovery
  • Dealing with preservation and spoliation issues
  • Preparing for Rule 26 conferences
  • Closing advice and take-aways

About the Speaker

Craig Ball is a Board Certified trial lawyer, certified computer forensic examiner, law professor and electronic evidence expert He’s dedicated his career to teaching the bench and bar about forensic technology and trial tactics. After decades trying lawsuits, Craig limits his practice to service as a court-appointed special master and consultant in computer forensics and e-discovery.

A prolific contributor to educational programs worldwide – having delivered over 1,600 presentations and papers–Craig’s articles on forensic technology and electronic discovery frequently appear in the national media. For nine years, he wrote the award winning column on computer forensics and e-discovery for American Lawyer Media called “Ball in your Court.” Craig Ball has served as the Special Master or testifying expert on computer forensics and electronic discovery in some of the most challenging, front page cases in the U.S.

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A Law Firm’s Guide To Handling Large Document Collection, Review and Production In-House

It is absolutely essential that both the client and counsel understand the landscape the litigation will expose, and this is accomplished by a thorough and thoughtful document review. Clients need such information to make an informed assessment of the potential risks (and rewards) of continued litigation. Counsel requires it to develop strategies to optimally deal with the facts (good and bad) that will ultimately be presented in the case. There is simply no substitute for carefully developing a proper, compelling and well-presented story on the facts. This webinar will address important legal issues, cost control methods and ensuring eDiscovery technology options and legal project management methodology is utilized fully for your next case so you can succeed.

Key Points

  • Data Growth and the Changing Landscape
  • Preparing your Firm for eDiscovery Projects
  • Assessing the Scope Of Your Project
  • Creating your Collection Plan
  • In-house Review
  • Determining your Best Production Options
  • Key Take-Aways
  • Conclusion

About the Speaker

Phillip Hearn has over 10 years of litigation knowledge managing document heavy litigation in state and federal courts with a solid understanding of law firm practices and business direction as well as advanced familiarity with eDiscovery best practices. He manages the professional services and technical staff at Lexbe and is certified in eDiscovery.
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