Hicks Morley recently published its “2007 Year in Review,” which is an indexed and edited compilation of much of the case law I’ve covered in this blog plus other significant cases from 2007. I feel somewhat unpatriotic about it, but co-editor Paul Broad and I selected the Vioxx privilege case as the most notable case of the year. Professor Rice’s reasoning on the factual inferences that ought reasonably to be drawn about the purpose of a communication based on how e-mail is communicated to and from internal legal counsel is significant, but we like Vioxx more for what it demonstrates about the challenge in managing business information today.
Here’s a snippet of our opening editorial:
Picture the records. Thirty thousand of them, all printed and stored in about 81 bankers boxes. They were not organized in chronological or any other logical order and contained numerous e-mail strings with duplicate communications, none of which were grouped. Merck actually had to review a set of records that was over 60 times this size to even claim privilege over these records, but even in litigation of such massive scale, Merck no doubt economized by doing some form of automated search on internal and external counsel names. This wasn’t good enough in the end, because when the plaintiffs challenged Merck’s privilege claims the litigants and the court were drawn into an examination of each and every line in every one of the 30,000 disputed records – first by way of a summary process and then by way of a detailed examination of a 2600 record sample. Since Merck’s novel theory that would have enabled it to avoid the burden of a record-by-record justification was rejected – one that relied on pervasive regulation of the drug industry – many of its privilege claims were rejected.
Although the Vioxx case actually involved physical records, it highlights the challenge associated with e-discovery that is the dominant concern of our civil justice system today. How can businesses afford to meet their production requirements in light of their massive and unorganized stores of electronic records? Yet civil litigators and law clerks might empathize with information and privacy coordinators. Every coordinator we know has ploughed through stacks of printed e-mail chains to assess whether any exemptions from an access requirement (all with their nuances and ambiguities) should be claimed.
All of us are working on our part of this challenge. We’re working on the root cause by managing information better, retaining it for shorter but legally compliant time periods and by providing guidance to employees on responsible record creation. (Is that really what you want to be putting in an e-mail?) We’re working on good preservation, search, retrieval, review and production processes – those that are efficient and defensible, and often rely on technology. And finally, we’re working on the law of production and access to information itself.
You can download a copy of the 2007 Year in Review here.