Archive: March 31, 2008

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Avoiding E-Discovery Pitfalls
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Court Sets Protocol for Production and Review of Text Messages

Avoiding E-Discovery Pitfalls

By K&L Gates partner David R. Cohen

This article appears in the March 2008 edition of BizTech Magazine, and begins:

If you’re not currently involved in litigation or an investigation and won’t be in the future, then e-discovery isn’t something your business needs to concern itself with.  The rub is that it’s often impossible to predict whether your business will be involved in a lawsuit or investigatory action.

Fortunately, the recent amendments to the Federal Rules of Civil Procedure do not impose any requirements on companies outside of the litigation process.  And because small and midsize businesses are less likely to be involved in litigation, they are at less risk.  However, if your business and IT departments aren’t prepared and you suddenly find yourself involved in a lawsuit, it may be too late to take the appropriate action.  Here are three best-practice steps that IT departments should keep in mind with regard to e-discovery and electronically stored information . . .

View the full article online, or as a .pdf here

Court Sets Protocol for Production and Review of Text Messages

Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008)

Plaintiff in this case is the minor son of a murder victim, whose murder remains unsolved.  The complaint alleges that the defendants engaged in a laxity in investigation, deliberately ignored and actively concealed material evidence, and deprived the plaintiff of an opportunity to bring a wrongful death suit against the murderer.

In a separate order on March 20, 2008, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of certain text messages.  The court found that the plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City of Detroit (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication.  Moreover, because a communication might be relevant, but not subject to discovery, e.g., protected by a privilege, the court stated that the procedure must be capable of addressing such issues and objections to production.

Accordingly, the court issued this order establishing a protocol for review and production of text messages, and assigning two magistrate judges to perform the review.
 

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