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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at [email protected]

Litigation 101 for eDiscovery Tech Professionals: What gets turned over in Discovery? (Part 2)

December 12, 2012

By Jane Gennarelli

 

** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here and here to go to the first eight posts in the series.**

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In last week’s post we covered what does and does not get turned over in the discovery process.  In some cases, there are documents that are turned over that are subject to special handling rules.  These are documents that are covered by a protective order, and they are typically confidential or business sensitive documents.  Let's describe a typical scenario that illustrates the need for a protective order and the mechanisms by which they protect parties in litigation.

ABC Corp. files a lawsuit against XYZ Inc. claiming that an XYZ product infringes on a patent owned by ABC.  Consider the types of documents that would be relevant in this case: that collection is likely to include documents with very sensitive, trade secret information on formulas, product design, materials, manufacturing, and so on.  The last thing the organizations want is to put these sensitive documents in the hands of another company – especially a competitor.  ABC and XYZ agree to (and the court approves) a protective order that permits legal counsel for the receiving party to review these documents, but not anyone who works for the receiving party.

Typically, a protective order includes directives for:

  1. The scope of the protective order:  what categories of documents/information will be covered?
  2. How the documents will be identified as confidential (for example, they may be marked “Confidential” or “Highly Confidential”)
  3. Who can have access to the protected documents.  For example, maybe they can only be viewed by legal counsel.
  4. Restrictions on how the documents will be handled and used.
  5. How deposition testimony and related exhibits that include sensitive information will be handled.

A protective order, therefore, lets the parties produce sensitive information without risking the potential problems of disclosing trade secret information.

There are a couple of other points regarding what gets turned over in discovery of which you should be aware:

  • Redactions:  Some documents are redacted before they are produced – that is, portions of the text are obscured.  This may happen when a responsive document contains some text that is not responsive and sensitive, or text that is privileged.  For example, it’s common to redact non-party patient names in cases involving medical information.
  • Objections:  Objections are not limited to the trial.  A party may object to a discovery request (for example, on the grounds that it isn’t relevant or that it’s privileged), in which case the court makes a ruling.

We’ve still got quite a bit to cover regarding discovery.  In next week’s post, we’ll start discussing document handling steps and how technology professionals can help attorneys with these tasks.  Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
http://www.cloudninediscovery.com/ondemand/free-software-trial.aspx

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