Insights Articles

Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of January 19-25. Here’s what’s happening.

Nonprivileged Documents Attached to Privileged Communications Must Be Produced

On his eDiscovery Today blog, Doug Austin writes about a case management order by Judge David G. Campbell in a products liability case in the U.S. District Court for the District of Arizona. A privilege issue was raised: The plaintiffs contended defendants took an incorrect position on when the attorney-client privilege applied to attachments to privileged communications and asked the court to order the defendants to review all attachments withheld as privileged.

Judge Campbell concluded that when nonprivileged documents are responsive to the plaintiffs’ document request and are attached to a privileged communication, the document must be produced, “even if the only location where the document is found in Defendants’ possession is as an attachment to the privileged communication.” In addition, he ordered the defendants to review all documents attached to privileged communications to determine if they are responsive, nonprivileged, and have not been produced elsewhere to plaintiffs.

Defense counsel said that when nonprivileged and responsive documents were found attached to privileged documents, they were withheld from disclosure and identified in a privilege log, but they did not check to see whether the nonprivileged attachments had been produced elsewhere to plaintiffs. Defense counsel argued that a further review of the withheld attachments was not needed because they checked 39 such attachments and found that all 39 had been produced to Plaintiffs elsewhere. But Judge Campbell disagreed: “The Court cannot conclude that a sample set of 39 is sufficient assurance that some responsive documents have not been withheld.”

The judge also addressed the fact that the plaintiffs didn’t raise the issue within 70 days of the privilege logs’ production as required by Case Management Order No. 19, but he pointed out the order provides that challenges may be brought later if there is good cause to conclude they could not have been made earlier. Because of the defendants’ practice of not checking to ensure that responsive, nonprivileged attachments had been produced elsewhere, Judge Campbell said good cause was found.

TikTok, RedNote, Bluesky … Oh My

A recent article in Legaltech News captures what eDiscovery professionals are saying about the latest iteration of the social media landscape, particularly the effect of the (brief) TikTok ban and users migrating to new platforms such as RedNote and Bluesky. Data found on these and other social media platforms can be invaluable in litigation. Companies need to have a plan in place to collect and preserve content from platforms and understand the latest tools for extraction of such data. A trusted eDiscovery vendor can help you prepare.

As Rose Jones, the global e-discovery practice group head at Hilgers Graben, said in the article: “From my perspective, partnering with the technology expert that has that expertise is really important to have that as part of your team.”

Other recent eDiscovery news and headlines:

• Tailor FRE 502(d) Orders to the Case (Ball in Your Court)
• Meet-and-Confer Letter Inspired by Leery Lawyer’s Guide to AI: Artificial Intelligence Best Practices (eDiscovery Today)
• Privilege Logs, Null Sets, Search Strings, and Number of Custodians in One Decision (EDRM Blog)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.