Cloud hosted repositories can be very effective in controlling eDiscovery costs. Data can be hosted and access shared to the litigants to review specific data. Permissions can be devised so neither side can see the work product of the other, only the data.
The California Court of Appeal weighed in on the disqualification of a law firm for allegedly accessing the opposing party’s confidential work product in violation of a mediation confidentiality agreement on a hosted repository. Urs Corp. v. Atkinson/Walsh Joint Venture, No. G055271, 2018 Cal. App. Unpub. LEXIS 5173 (July 26, 2018). While an unpublished opinion and cannot be cited for authority in court, it is good to see that the California Court of Appeal to look at how the technology was used in order to reverse the disqualification by the lower court.
The analysis focused on declarations submitted by the law firm’s outsourced network systems IT person and project manager for the hosted review application. The IT person was directed to delete data stored on the law firms Share Site folders; the project manager was instructed to quarantine the hosted data so no one from the firm could access the information. The project manager explained this was achieved through item-level security on the review application so no one from the firm could access the data. After a court order, the data was immediately destroyed.
The Court found that the declarations established with sufficient specificity when data had been deleted from the law firm’s internal servers and that no one from the firm could access the data on the hosted review application. There was no evidence from the opposing party to contradict the appealing party’s declarations or compliance with the court order to destroy the data.
Disqualification of counsel is a serious matter. Courts take such drastic actions in order to maintain ethical standards in order to preserve the public trust in the administration of justice. The reasons to disqualify counsel are either (1) successive representation by an attorney of a former and a current client; or 2) inadvertent disclosure to opposing counsel of privileged or confidential communications. Urs Corp., at *21-22, [citations omitted]. Neither situation applied in the current case, because the issue was whether the law firm violated the Confidentiality Agreement for mediation. If there had been no breach, there would be no grounds to disqualify the law firm. Urs Corp., at *24.
The Court explained that the complaint filed by the law firm did not use or make reference to any of the hosted mediation documents. Moreover, the complaint was barebones, in that it dealt with the lack of payment to the plaintiff. The Court said using this as a basis for disqualification was “too much of a stretch….” Urs Corp., at *30. As there was no substantial evidence of violation of the confidentiality agreement, the disqualification order was reserved.
Using a Hosted Repository in Litigation
There are ways to use hosted repositories to reduce costs for sharing documents in mediation or even for a judge to rule on privileges asserted for withheld documents. I will use Everlaw as an example, as I am certified in that product. If there are documents to be shared specifically for mediation with multiple parties, such as in a large construction defect case, a “Project” can be created just with those records. Counsel can be invited to access just those specific documents for review. Alternatively, if there is withheld ESI and a court would need to review the records in order to rule on the privilege claims, a “Project” could be created for the judge to review the records.
Other cloud review applications could have other ways to achieve the goals from the above examples. This requires attorneys to understand the solutions they are using and the features that can help them control costs.