Kelly G. Hyndman of Jurinspired.com discusses what Federal Rule of Evidence 502 (FRE 502) means, and why it is something you must know. This rule is especially important in the era of electronic discovery, and deals with the interplay between inadvertent disclosure, waiver, and privilege.
The Association of Certified EDiscovery Specialists
The Association of Certified EDiscovery Specialists lives at http://www.aceds.org and describes themselves as follows:
ACEDS, a vendor-neutral, independent organization, develops its offerings and services solely for the benefit of its members without constraint of outside commercial or financial ties. It operates on the unswerving principle that the quality of its CEDS™ certification, training, continuing education, specialized information and networking will be instrumental to your success in e-discovery.
The CEDS certification examination, described at http://aceds.org/CEDS, covers the following areas:
- Information Management and Litigation Readiness
- Data Production
- Project Planning
- Project Management
- Litigation Hold Implementation
- Legal Framework and Obligation
- Collection, Planning, and Implementation
- International Discovery
- Data Processing
- Data Culling
- Review Planning
- Document Review
Reaction to the Examination
This examination was challenging. The questions are all situationally oriented. That is to say, you are given a number of facts, and then you are asked about some aspect of eDiscovery based on those situational facts. The answers are nuanced enough so that most of the questions require you to pick from at least two good answers, maybe three.
Given the length of the questions, it is absolutely essential to pace yourself on this examination. When I took the examination, I had four hours in which to complete 145 questions. It took me 23 min. to finish the first 10 questions. “Doing the math” told me that I had better speed up if I wanted to have a shot at finishing the exam in the allotted time.
I reached and kept up a pace of about 1.6 min. per question. Some questions were easier than others, so that I was able to take a quick restroom break at the two-hour mark, without feeling terribly pressured. After that, I stayed ahead of the time curve, which left me about 4 min. for checking up on a few questions that I had marked as once I wanted to revisit.
I was happy to see that instant feedback was provided at the conclusion of the exam. A member of the ACEDS management team called me on the day of the exam to congratulate me for passing, and to reiterate that the organization was available to me whenever needed in the future.
Plans for the future
In the Commonwealth of Virginia, Rule 7.4 of the Rules of Professional Conduct (which is based on ABA model rule 7.4) states that “A lawyer may communicate the fact that the lawyer has been certified as a specialist in a field of law by a named organization, provided that the communication clearly states that there is no procedure in the Commonwealth of Virginia for approving certifying organizations.”
I have been certified as a specialist in eDiscovery by the Association of Certified EDiscovery Specialists. There is no procedure in the Commonwealth of Virginia for approving certifying organizations.
The District of Columbia does not have a rule of professional conduct equivalent to ABA model rule 7.4
The meaning of the term “Litigation Hold” and counsel’s continuing duties to oversee preservation. The “Safe Harbor” provision of FRCP 37(e) is also discussed.