Archive: October 5, 2010

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Building Your e-Discovery Toolkit
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Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Building Your e-Discovery Toolkit

By Julie Anne Halter, K&L Gates

This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.

In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet.  Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006.  And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.

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Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

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