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Look Before You Leap: ESI and Inadvertent Waiver

Connecticut Law Tribune

February 2, 2009

Authors: Charles L. Howard, Jill M. O'Toole

Consider this situation: You represent a plaintiff in federal court and think you have mastered the e-discovery beast. Before filing the case, you hired a consultant to help with the huge volume of e-mails and other electronically stored information (ESI). The consultant suggested sophisticated software to screen the ESI, and worked with the lawyers to develop a list of search terms to narrow the ESI and isolate potentially privileged documents. From the remaining ESI, you had an associate review e-mails in specific individuals’ e-mailboxes. The result? You produced 78,000 e-mails on three hard drivesalong with two privilege logs, which the associate prepared based on her document review.

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