litsupport summary for the week ending on 08/03/08

A lot of important and useful information is posted to litsupport each week. The following is a distilled summary, in the form of questions and answers.

Q. What are the recommended forensics certifications for legal work?
A. CCE is a non-vendor certification, focusing on methodology, terminology, documentation and standards and will come in very handy when in court. Furthermore, it is a PI requirement in some states; at least one product certification, such as EnCE, FTK, X-Ways, Pro-Discover, and GCFA for incident investigation.

Q. Is it a good or a bad idea to use OCR-based searching for first-pass privilege review in lieu of page-by-page review?
A.

GOOD:

1. Good for a first-pass priv review. Segregate the hits and their associated family docs into a "potentially privileged" review set for 1 or 2 atty's to eyeball. Be careful with search terms: searches for a laundry list of atty names and law firm can be over-inclusive. Thus, as an overall strategy to reduce risk at the outset, it's a good idea;
2. Great but it depends upon the OCR. Extracted text - yes, paper OCR - no. Use the OCR searches to help your review, but not as a "first pass priv. review."

BAD:

1. Probably a bad idea if they are going to perform a page-by-page review of only those documents brought back by the search and all other documents will be assumed to be non-privileged and will be produced without a page-by-page review. It is DEFINITELY a bad idea if there is no clawback agreement. This situation was dealt with in Judge Grimm's decision in Stanley v. Creative Pipe and resulted in a waiver of privilege;
2. The OCR search won't necessarily find potentially privilege documents with client (or attorney) handwritten notes.

This summary from the Litsupport Group postings created by the wonderful and talented members of the group has been culled by Mark Kerzner (mkerzner@top8.biz) and edited by Aline Bernstein (aline.bernstein@gmail.com).