Cooperation in Ediscovery: Counsel’s Database

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In 1997, Judge D. Brooks Smith (W.D. PA) ordered the defendant in a class action to produce its counsel’s database of potentially responsive documents or suffer the consequences. One reason I sought that order was to cut through what would otherwise have been an untenably expensive process. Here are excerpts from the transcript, and the minute entry. Continue reading

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Minds Matter: H5, Rules-Based TAR, and Cooperation

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dipole_small copyThis article is about how H5‘s rules-based approach to technology-assisted review provides a great framework for illustrating cooperation in ediscovery. But first, some context.

By this time next year, Rule 1 of the Federal Rules of Civil Procedure will have been amended to codify the principles of proportionality and cooperation between opposing counsel. Continue reading

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The EDiscovery Privilege Order

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priv-shrunk2-mergedAs shown below, any federal court has the absolute statutory authority, which it should exercise immediately upon the filing of any action, to unilaterally enter an order that provides as follows (an “EDiscovery Privilege Order”):

1) No communications between any of parties hereto concerning ediscovery in this action shall waive the attorney-client privilege or work-product protection in this action or in any other federal or state proceeding, including but not limited to any federal court-annexed or federal court-mandated arbitration proceedings. Continue reading

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The EDiscovery Communication Privilege

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priv-shrunk2-mergedThe following Order encourages disclosures between the parties about ediscovery by making certain communications non-discoverable and inadmissible, and by ensuring that those communications will not waive any otherwise applicable privilege or protection.

Continue reading

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