Commercial Litigation and Arbitration

Lotus Notes — An Electronic Discovery Nightmare in New Jersey

According to the opinion in Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007), Lotus Notes has a feature that can keep you awake at night: "[I]n the Lotus Notes application, unlike Microsoft Outlook and other email platforms, even though mails had been moved and segregated into separately labeled subfolders, and said folders subsequently deleted, a copy of these e-mails still remained in the larger folder structure. As such, when [plaintiffs’ vendor] converted the e-mails from their native form into single page image files, the e-mails which Plaintiff had allegedly segregated into a ‘privileged’ subfolder, and subsequently deleted, actually remained in the larger folder structure, and were thus produced to the Defendant.“ The plaintiff, having thoroughly reviewed and culled all documents online, performed only a spot check of the hard copy printout. The spot check did not reveal that all — yes, all — of the privileged documents were still there, Bates stamped, numbered and given a confidentiality designation. Held, case remanded to Magistrate Judge to determine whether the plaintiff took reasonable precautions to prevent waiver of privilege and satisfied the other inadvertent-waiver factors of Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.Supp. 404, 411 (D.N.J. 1995).

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