EDD: Issues, Law, and Solutions: Confidentiality vs marketing

Wednesday, April 8, 2009

Confidentiality vs marketing

I've been providing litigation support services for more than 15 years. In all that time I have worked on innumerable cases that are / were on the front page of the national papers or are the flavor of the day on the nightly news. These cases may have involved Tobacco; Finance; Construction; Mergers and Aquisitions, Corrupt Politicians; or sometimes even a poor celebrity who has run afould of the law. Whatever the situation the bottom line is that I cannot talk about the details. Heck, I don't want to even talk about who I am working for or what is involved in broad general terms. At times I have stopped reading the paper when working on a high profile case. Its just easier that way...I don't need to know the backstory.

Lawyers are often required by law to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney-client evidentiary privilege, which only covers communications between the attorney and the client. Superior Document Services has in a sense evolved into a legal "Switzerland". We understand that every client; has a right to privacy and confidentiality. We are impartial to a fault and fastidious in our protection of our clients and their cient's identities.

Superior Document Services has no exterior signage beckoning the general public; a locked secure facility and digital camera's at each and every point of egress and ingress. More importantly I have many trusted long term employees bound by formal confidentiality agreements. The bottom line is "CONFIDENTIALITY IS A GIVEN"

So - this all leads to a conundrum in litigation support marketing. I can't shout from the rooftops that I did ALL the ediscovery work on the Exxon Valdez lawsuits ( I didn't ) without violating; in my mind at least, the implied trust. So as you can see by the above picture published by the AP; Superior Document Services got some free publicity the other day during the trial of a major major ex NFL star. I still am thrilled when I see someone carrying a box with my Superior logo down the street so as you can imagine I was ecstatic when I got calls from friends that our boxes were prominently featured on both local and national tv news.

After some internal personal debate - I'm posting the picture here. I think its pretty ...err, cool?

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Sedona Principles 2nd ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.
Copyright © 2007 The Sedona Conference®. All Rights Reserved.
Reprinted courtesy of The Sedona Conference®.
Go to http://www.thesedonaconference.org/ to download a free copy of the complete document for your personal use only.