Leverage Economic Constraints to Strategic Advantage
Frederick L. Whitmer, a partner at Kilpatrick Stockton, and Megan Bussey, an associate at the firm, challenge litigators to alter their preconceptions about the breadth of their document requests and the areas that they wish their adversaries to search, as an economically sensible reaction to the demands of e-discovery, but which also has intellectually motivated substantive benefits. The time is right, they say, for such thinking in light of the dramatic shift in the economic climate of the U.S. legal marketplace.
Robert D. Owen, a partner at Fulbright & Jaworski, and Melissa H. Cozart, counsel to the firm, write: Even though many documents produced during discovery have little value, lawyers spend a lot of time and their clients' money reviewing every piece of information to prevent the inadvertent disclosure of privileged information. By limiting the consequences of inadvertent production, Rule 502 was meant to reduce parties' burden to conduct expensive preproduction privilege reviews. However, the rule has not been shown to provide large costs savings, partly due to courts' varying interpretations of what qualifies as "reasonable" steps to prevent disclosure the producing party took.
Free With Registration: Please Stop Speaking After the Tone…
Mark S. Sidoti, a director at Gibbons, and Paul E. Asfendis, an associate at the firm, write: Modern companies are presented with many options for generating, receiving, storing, retrieving and disposing of electronic business communications. Perhaps nowhere is the progression of technology more evident than in the context of voicemail. Where voicemail messages were once stored on analog tapes, many organizations now utilize digital technology, and some opt for "unified" technology in which a company's telephone and computer systems are integrated. Not surprisingly, such advances raise a number of e-discovery issues. Businesses considering implementation of new voicemail technology should evaluate the effect, if any, that implementation will have on the company's obligations to preserve, search for, and disclose relevant voicemail messages.
Perspective: A Proposal To Prevent Blackmail At the Pleading Stage
Michael H. Gruenglas, a partner at Skadden, Arps, Slate, Meagher & Flom, and Robert A. Fumerton and Patrick G. Rideout, associates with the firm, propose a simple measure to rebalance the risks and rewards for parties involved in civil litigation, while preventing the potential abuse of e-discovery to extract nuisance settlements from defendants. Specifically, they argue that all e-discovery should be stayed during the pendency of any motion to dismiss unless the plaintiff agrees to reimburse the defendant for all e-discovery costs in the event that the defendant's motion to dismiss is granted.
