The Brief

The Brief, Vol. 41, Spring 2022

The Next Frontier of Electronic Discovery: A Primer on Litigation Issues Relating to New Digital Messaging Systems

by Beth Newton

Over the past several years, a shift in electronic communication has been underway as new digital messaging systems like Slack, Signal, and WhatsApp (among others) have become increasingly popular, including for business purposes. Commu- nication on these systems typically takes the form of chats or text messages and is accompanied by customizable settings affecting privacy and message retention, such as auto-deletion, advanced encryption, and cross-platform integration capability. New Digital Messaging Systems now supplement—and in some instances compete with—email as modes of workplace communication. Further, especially given the rise in remote work as a result of the COVID-19 pandemic, employees increasingly use these systems to conduct business activities on personal rather than company-issued devices. New Digital Messaging Systems may offer significant benefits to corporate users, including enhanced privacy and data security and facilitation of collaborative, efficient communication among employees. As New Digital Messaging Systems have become more popular, they have also begun to pose issues of first impression in connection with electronic discovery.

IME Expert Discovery under Federal Rule 35: Privileges and Perils

by Daniel R. Michelmore

Federal Rule 26 privileges each side to either foreclose discovery into their own respective experts by designating them as consulting experts or to narrowly restrict their discovery by designating them as testifying experts. While there is considerable confusion, many courts have applied this privilege framework to discovery issues involving independent medical examiner experts. But there is another rule, Rule 35, which specifically applies to examiner experts. Once invoked, Rule 35 nullifies any privileges under Rule 26. Under Rule 35, plaintiffs examined by motion or agreement may obtain unfettered discovery from the defense examiner free and clear of the consultative and testifying expert privileges, including draft reports and communications with defense counsel. In seeking this information, however, plaintiffs automatically waive all privileges to their own examiners. While seemingly equitable, this rule in operation sanctions plaintiffs to wield privilege both as a sword and a shield and, by making plaintiffs the sole arbiter of privilege, usurps the power of the defendant.