Harkabi v. SanDisk Revisited

Image via WikipediaI found an interesting Blog Post by K&L Gates today, going further in depth on the repercussions of the Harkarbi case here. If you were interested in the case I think its worth a look. For a brief overview of what happened you can read over my previous blog post here, but I'd definitely recommend reading K&L's analysis for a more thorough interpretation.

Europe: In-House Attorney-Client Out the Window

In a stunning decision yesterday the European Court of Justice held that communications between the company and in-house lawyers are not protected from disclosure or discovery.

Law.com quotes London solicitor J. Daniel Fitz, former chairman of the board of Association of corporate counsel, "The ECJ ruling has serious ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today's global legal marketplace require."

The Guardian's Julianne O'Leary believes that this is an unjustified knock against in-house counsels, who will be unable to do their jobs effectively -- that is to provide sound legal advice to their employers. Law.com's Marcia Coyle agrees in that the ruling is "a blow to multinational businesses".
 
The ruling holds that privilege will only be granted pertaining to "independent lawyers," that is "lawyers who are not bound to the client by a relationship of employment."

I agree that this will drastically reduce the abilities of in-house counsel to provide legal advice, fundamentally changes the role of in-house counsel and will force companies to lean on outside counsel more often. A few things quickly off the the top of my mind which this also affects in the EU:

-Cost of litigation will increase as use of outside counsel becomes more prevalent
-Role of in-house counsel will be drastically retooled to reflect the increased transparency
-Electronic discovery will become more important since in-house counsel communications are now discoverable
-Multinational corporations will need to be increasingly careful policing their communications

Ball Sees Decisions

Over on Craig Ball's EDD Update, he posts in reference to Zubulake that: 

Total reliance on an employee to search and select won't cut it in Judge Scheindlin's court. 

The decision puts a nail in the coffin of custodial-delegated holds and persuades me that, at least in the SDNY, no nabob should delegate preservation and search to minions, and certainly no lawyer should leave search to clients alone.  The opinion prompts further resignation to keep everything--especially all e-mail--and cease rotating tapes [s]hould someone so much as whisper the word "lawsuit."  

Mr. Ball is an e-Discovery thought leader and has practically written the book on the subject. In this case, I could not agree with him more and this relates directly to my last post. ESI must be managed centrally; relying on custodial-delegates is just not defensible AND is inefficient. There is no reason to keep high-cost, high-liability processes alive when there are known processes to replace them.

Extenze That Retention Policy

Image via Wikipedia

From The Modern Archivist's Adam Sand: 

In Takeda Pharmaceutical Company Ltd. V. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010), a patent dispute between two pharmaceutical companies, the court ordered that the relevant time period for all discovery requests be expanded to include the past 18 years.  Because the plaintiff had conceived of the patent and reduced it to practice 18 years ago, the documents from the entire time period may contain relevant data.

 This is not a new trend. Companies are being forced to hold onto their ESI for longer and longer periods of time due to the increasing liability of lawsuits. In specific, companies with a critical mass of intellectual property (especially in the case of long product development cycles such as in Pharma), can be hamstrung to hold onto their information for years.

 Although it is currently unclear as to an industry standard or mandate, as Mr. Sand continues, "it is possible that more organizations will be holding on to their ESI for ten years or more." This brings to the fore two relevant issues:

 1. How are companies going to realistically enforce these policies?

 2. How can companies manage the vast amount of data these retention policies force them to hold?

 The solution for the execution of the policy is to simplify, and interestingly enough the solution for the storage will follow. In order to enforce such a policy, ESI must be centrally managed. There is no way to ensure proper life cycle management if there are either multiple copies or multiple policies or some combination of both. One copy, one policy will ensure proper retention compliance.

 Storage, then, will see dramatic reduction if there is only one copy! Check out www.zlti.com for more.

p.s. We are launching a new site this week, so be sure to keep checking it!