FRE 502: Evidence & Digital Discovery...

What could the implications of this ruling be for employees in New York state? Scott v Beth Israel Med. Ctr. Inc.

The writing is on the wall with the attorney-client privilege and Federal Rules of Evidence 502. A review of current e-mail policy may also be in order at your institution if you plan on achieving "A Defensible Standard of Care."

On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.

Here are comments by the BLT:

If approved, the legislation would allow litigants to avoid waiving privilege on inadvertent disclosures if parties took reasonable efforts to vet the documents and asked for the return of any privileged information in a timely manner.

"The surging use of email and other electronic media has forced parties to spend billions of dollars and countless hours to guard against the unintentional release of such information," Leahy's office reported. Specter added that the new rule would help ensure that "the wheels of justice will not become bogged down in the mud of discovery.”

Stephen D. Whetstone, Esq. of Stratify says this:

Given the increased risks and costs, it is no surprise that many companies are trying to wrest control over the discovery process. More companies are now directing outside their counsel to leverage technology to automatically organize huge data collections, help understand foreign languages and detect privilege and thereby drive down the costs and mistakes that result from fatigued human review. The rule-makers get it, too. The Advisory Committee Notes to proposed FRE 502 provide: "Depending on the circumstances, a party that uses advanced analytical software application and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure."

In short, in the 12 months since adoption of the new discovery rules, the sky did not fall. But, for some, it grew darker and more expensive to prop up.

In case you haven't noticed your CIO in the General Counsel's office lately, you soon will. The use of automated tools for Electronic Content Management (ECM) have converged with the tools for Disaster Recovery Management (DRM). In the middle of the pile of documents, email and other electronically stored information (ESI) is something called effective Records Management.

Managing information that is discoverable through email from Party A to Party B using the internal e-mail system provided by the employer to the third parties outside of the organization including lawyers is the nexus here. How can an organization make sense of it all and keep the GC from pointing fingers at the CIO?

The answer begins with building awareness and education with all employees in the organization, not just the legal staff and IT. It begins the moment any employee opens the word doc or excel spreadsheet. The second you reply to that IM or e-mail on your PDA . Only through effective education and policy management will the enterprise learn how to modify behavior regardless of what tools and systems are put in place to organize, sort and query ESI.

"Whether building the castle walls or defending the crown jewels, knowing the right questions can make all of the difference."

The beginning of your educational journey starts here: CastleQuest

Show Me The Money: Complacency Risk...

The last time we checked, CFO's were still doing battle with CxO's about their budget and the growing magnitude of Operational Risks as a result of too little funding. Learning how to count differently is a consistent conversation within the ranks of corporate enterprises today. How do I address the needs of the employee, the regulators and management for software systems and safety solutions that require continuous change with this budget?

"Champions for new investments in Enterprise Content Management (ECM) solutions must make convincing arguments for change. Among many hurdles, the champion must express a business case for an ECM solution. That business case must present an economic analysis of the "before" and "after" financial impact. It must deliver measurable financial return on investment (ROI). The bottom line that is always asked is "show me the money".

Enterprise Content Management is the technologies used to Capture, Manage, Store, Preserve, and Deliver content and documents related to organizational processes.

The business case for any new investment requires an analysis of what the existing business issue or problem is and what the benefits are, making this new investment. Counting differently than in the past may require looking beyond the typical methods for creating this so called "Show me the money" step for executive management. Can ECM provide the solution to more than one of the problems in the enterprise with managing information and getting answers faster and more accurately than ever before? If it can, then this could be a path to designing a risk management architecture that provides a myriad of capabilities across a spectrum of potential vulnerabilities.

The most important job is to keep in-house information under control. The questions add up: where to put the thousands and thousands of e-mails, what to do with the electronically signed business correspondence, where to put taxation-relevant data, how to transfer information from the disorganized file system, how to consolidate information in a repository that everybody can use, how to get a single login for all the systems, how to create a uniform in-basket for all incoming information, how to make sure that no information is lost or ignored, etc. etc. Document technologies play an important role in all these questions. ECM solutions are necessary basic components for many applications. Every potential user will naturally consider his own individual needs before deciding on a system. However, putting off decisions does not make them less necessary. Every year something supposedly better and easier to use will come along, but waiting will just mean never installing anything. Every time the decision is put off, the mountain of uncontrolled and unused information gets bigger, and known problems get larger. A sensible long-term migration strategy removes the fear of fast technology change.

Complacency is a threat that many do not think about. What is the cost of complacency in delaying decisions to invest? Whether it be that latest hot stock, buying new enterprise software or the maintenance on the critical infrastructure supporting your operations, timing is everything. At some point, a decision has to be made and you are never going to have enough data to totally justify an investment one way or another. You must find the courage to do something, before complacency makes the decision for you:

One person has been killed and at least 20 others injured when a steam pipe exploded underneath a street in central New York during the evening rush hour.

The explosion in midtown Manhattan sent clouds of steam, mud and rocks into the air and forced the evacuation of nearby streets and Grand Central Station.

The New York Police Department said the incident was not terrorism-related.

Millions of pounds of steam are pumped beneath the streets of New York to help heat and cool thousands of buildings.

The 83-year-old pipe exploded just before 1800 (2200 GMT), sending people running from the scene as steam billowed up from the ground.

New York Mayor Michael Bloomberg later ruled out the possibility of a terrorist attack.

"There is no reason to believe whatsoever that this is anything other than a failure of our infrastructure," he told a news conference.

"The big fear that we have is whether there may or may not have been asbestos released."

Maintaining, upgrading and investing in your IT software systems is no different than looking after your power generation pipelines or critical infrastructure conduits along right of ways. Lack of robust Software Quality Assurance and the complacency for justification of new systems may not result in human fatalities such as the explosion in NYC. Unless of course the information you desire can't be found or can't be accessed when you need it.

Connecting the Dots and Show Me The Money are what complacency risk is all about.