Crane on Law by James Crane

We can expect that litigation over subprime mortgages is going to increase into the near future. Plaintiff firms have either already brought actions or are putting together their playbook. Additionally, attorneys general in New York, Ohio, and Massachusetts have sued lenders and appraisers. The Federal Trade Commission and the Department of Justice Civil Rights Division are also active in this area. Corporate counsel across nearly every industry should examine the issues and evaluate whether their client will have exposure in the fallout.

Last year, federal banking regulators provided guidance to lenders regarding non-traditional or subprime mortgage products in the Interagency Guidance on Nontraditional Mortgage Product Risks and the Statement on Subprime Mortgage Lending. These guidelines address underwriting standards, risk management practices, consumer protection issues, and control systems. This has been adopted by most lenders and will likely constitute the plaintiffs playbook for the subsequent lawsuits regarding predatory lending practices.

Back in 2005, there was an interesting little controversy swirling around metadata that I thought I would bring up as a reminder to some and news to others. President Bush nominated Judge Samuel Alito for the Supreme Court and there was a good chance that the confirmation process would be contentious. In the days leading up to the Senate Confirmation hearings, an unsigned memo criticizing Alito was circulating.

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Yesterday, I had the pleasure of presenting Altep’s Quarterly e-Discovery Case Law Update to the Tampa Bay Paralegals Association at the Tampa Club. (TBPA = http://www.tbpa.org/ and Tampa Club = http://www.thetampaclub.com/tampa_club.htm). It was a great venue and an outstanding group of people. I have to offer a special thanks to Yvonne DeAntoneo and Leslie Matthews!! I look forward to presenting a review of online review platforms at their fall technology conference.

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So, metadata is the hidden data about a document. To see an example of metadata, open a Microsoft Word® document, click on the “File” menu, and choose “Properties.” A dialog box will open up, where you’ll find a variety of information such as when the document was created, last edited, and other little tidbits, like editorial comments and when and if it was printed. On an email, the metadata would include any recipients, even BCC, and information about the computers through which the message was routed. So, you can easily see the significance of metadata. The real questions arise when one ponders whether and when it should be considered as evidence, and how one should go about gauging the reliability of a system’s metadata.

More discussions to come.

I am so energized as more and more legal professionals are taking an interest in e-Discovery! The greatest accomplishment of the amended Rules is that it forced legal professionals to account for the digital world around us. One integral and sometimes misunderstood part of that world is metadata. Since I am asked fairly regularly about what metadata is and why it matters, I thought we could look at a few metadata items over the next few posts.

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Privilege review is one of the most costly and complicated parts of defending a large-scale action, for a variety of reasons. Given a population of potentially privileged documents, attorneys will often have a reasonable difference of opinion regarding the privileged nature of particular documents. Ddeciphering between the business and legal roles of corporate employees is challenging. Here are 3 actions a company can take to establish, maintain, or preserve privilege in documents it intends to protect:

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In Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., the District Court of the District of Columbia examined a case that illustrated what not to do if you want to rely on the Safe Harbor provisions in the Federal Rules. (242 F.R.D. 139, D.D.C. 2007).

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I could go many different directions with a headline about the costs of e-discovery. I could discuss cost-saving techniques, like I did here (http://www.altep.com/content/view/3/52/). I could explain how you often “get what you pay for” … you know there’s a reason why that vendor charges 50% less than all of the competitors…

However, the focus today is just to break down the basic categories of cost associated with executing the e-discovery part of a case.

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One of the most important considerations in executing a large-scale action is how to organize the data population prior to review. If the discovery team is using the proper technological tools, you can successfully limit the review of unnecessary material and bring the most relevant documents forward by using filtering.

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Many attorneys are in the very early stages of accepting technological tools to deal with massive discovery challenges. Even in cases involving more than a hundred thousand documents, counsel still asks that digital documents be blown-back to paper for review, and then produced as paper to the opposing party. My question is, WHY? I can only assume that it's due to lack of training and knowlege regarding use of the available technologies, and people's sense of comfort with the “traditional” ways in which things have always been done.

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