Transcript Discovery Best Practices

Litigation Best Practices
Sailing Through Discovery
with
Kristen E. Hudson
Schopf & Weiss LLP
1. Litigation Hold
What are they?
When are they sent?
Who do they go to?
What must be preserved?
Emails
Network files
Personal computer files
PDAs
Back up tapes – cancel destruction orders!
What is the attorney’s obligation?
Litigation Hold
Consequences for non-compliance
Sanctions for attorneys and clients
Time and money to defend discovery efforts
Loss of privilege
Spoilation of evidence claim or adverse jury
instruction
Litigation Hold
Best Practices
Issue a WRITTEN litigation hold as soon as litigation is
contemplated to the appropriate individuals
Be overinclusive for records and employees – include key
and minor players, former employees, and employees
who changes positions
Obtain a copy of the litigation hold that was sent
Do not delegate to unsupervised or inexperienced
personnel
Litigation Hold
Best Practices
Throughout litigation monitor to ensure that the
litigation hold remains in place
Keep a contemporaneous record of discovery
efforts
Do not stop monitoring, even if a discovery stay
is issued
2. Insurance Coverage
Risks Covered
First Party v. Liability
CGL
Bodily injury/Property damage
Advertising and personal injury
Employment Practices Liability
D&O
Entity Coverage v. Coverage for D&Os
Obligation to reimburse defense costs
Professional Liability
Many others
Insurance Coverage
Duty to Defend
What triggers the duty to defend?
Claims or suits
Notice
Potential for coverage
Defense of entire suit
Use of extrinsic evidence
Insurance Coverage
Best Practices
Always Read the Policy
The entire policy
Consider rules of construction
Give Notice to Insurer
Claims made vs. occurrence
Late notice and prejudice
Keep the Insurer Informed
Provide updates
Consent to Settle
Consider All Possibilities for Coverage
Gather all policies
Coverage sometimes exists in unexpected places
3.
E-discovery Agreements
Overbroad discovery requests can lead to
terabytes of production
What governs the production of e-discovery?
FRCP 16 and 26(b)(2)(B) (limits effective 12/10)
The 7th Circuit’s Pilot Program
State Court?
Nothing
See Ill. Sup. Ct. Rules 201(b)(1) and 214
E-discovery Agreements
Principles of the 7th Circuit Program
Faciliate cooperation between parties early re
preservation and exchange of e-discovery
Focus on proportionality
Principle 2.01 provides a list of topics to discuss with
opposing counsel at the outset
Identify the ESI, the scope, the format of preservation and
production, the procedures for handling inadvertent production
of privileged information, etc.
E-discovery Agreements
Best Practices
At the outset, work with your opposing counsel to agree
on scope and form of e-discovery, even in state court
Educate yourself about your clients’ system, back-ups,
and schedules
Educate yourself about the opposing party’s system,
back-ups, and schedules
Designate a technical liaison employed by the client and
someone on your team that understands the systems,
the formats, and their capabilities
4. Data Collection
Best Practices
Trust, But Confirm - Do trust that your client has
turned over the requested documents, but take
time to confirm by speaking directly to key
players and custodians
Document your conversations in a
contemporaneous discovery log
NEVER promise that all documents have been
produced
5. Discovering E-discovery
Best Practices
Use discovery to make sure opponent is giving
you the right information
In interrogatories, ask your opponent to identify
the key players
In request for documents,
Ask for copies of the I/T policies and procedures
Ask for the document retention policy
Ask for the litigation hold
Discovering E-discovery
Best Practices
Define “document” broadly in your requests
Depose a corporate representative on:
I/T preservation
The company’s policies and procedures
How the policies and procedures were implemented
in your particular case
6. Requests to Admit
Governed by FRCP 36 and Ill. Sup. Ct. Rule 216
Great tool for authenticating documents
Can narrow factual disputes early in litigation
Must admit, deny, or say why, after
investigation, you cannot admit or deny it
Limited to 30 in state court effective January 1,
2011
Requests to Admit
Amended Rule 216
Maximum number is 30, unless a higher number is agreed to by the parties
or ordered by the court for good cause shown
Each subpart is a separate request
Special Requirements. A party must:
(1) prepare a separate paper which contains only the requests and the
documents required for genuine document requests;
(2) serve this paper separate from other papers; and
(3) put the following warning in a prominent place on the first page in
12-point or larger boldface type: “WARNING: If you fail to serve
the response required by Rule 216 within 28 days after you are
served with this paper, all the facts set forth in the requests
will be deemed true and all the documents described in the
requests will be deemed genuine.”
Requests to Admit
Committee Comments to Rule 216
Paragraphs (f) and (g) are designed to address certain problems with Rule
216, including the service of hundreds of requests for admission. For the
vast majority of cases, the limitation to 30 requests now found in paragraph
(f) will eliminate this abusive practice. Other noted problems include the
bundling of discovery requests to form a single document into which the
requests to admit were intermingled. This practice worked to the
disadvantage of certain litigants, particularly pro se litigants, who do not
understand that failure to respond within the time allowed results in the
requests being deemed admitted. Paragraph (g) provides for requests to be
contained in a separate paper containing a boldface warning regarding the
effect of the failure to respond within 28 days. Consistent with Vision Point
of Sale Inc. v. Haas, 226 Ill. 2d 334 (2007), trial courts are vested with
discretion with respect to requests for admission.
Requests to Admit
Best Practices
Carefully craft requests to advance your case
Review and send to your client immediately
Calendar the due date
Start response early
Object to poorly crafted requests, but try to
answer as best as you can
7. The Privilege Log
The Shield and the Sword
Privilege log – list of documents and other
material withheld from discovery based on claim
of privilege or protection
What is Privileged?
Objection must be timely – failure to object
operates as a waiver
The Privilege Log
Federal & State Comparison
Federal Rule 26
Must describe “the nature
of…things not produced
or disclosed – and do so
in a manner that, without
revealing information
itself privileged or
protected, will enable
other parties to assess
the claim.”
IL Sup. Ct. Rule 201(n)
Claim of privilege “shall
be made expressly and
shall be supported by a
description of the nature
of the…things not
produced or disclosed
and the exact privilege
which is being claimed.”
SNAPP, KRACKLE & POP PRIVILEGE LOG
DATE
TYPE
SUBJECT
AUTHOR(S)
RECIPIENT(S)
BASIS
10/18/99
Draft document
Draft affidavit of M. McMatter in
support of Debtor’s objections
prepared by outside counsel for
purpose of rendering legal advice in
confidence without disclosure to
outside parties, and containing
counsel’s handwritten markings and
exhibiting counsel’s mental processes
regarding same.
Huff & Puff,
LLP*
Mary McMatter
Attorney Work
Product Doctrine
Undated
(10/99)
Attorney’s notes
Communication from outside counsel
to M. McMatter for purpose of
rendering legal advice in confidence
without disclosure to outside parties
regarding direct examination of M.
McMatter in bankruptcy litigation,
and containing counsel’s handwritten
markings and exhibiting counsel’s
mental processes regarding same.
Huff & Puff, LLP
*
Mary McMatter
Attorney Work
Product Doctrine
Undated
(10/99)
Attorney’s notes
Communication from outside counsel
to M. McMatter for purpose of
rendering legal advice in confidence
without disclosure to outside parties
regarding direct examination of M.
McMatter in bankruptcy litigation and
exhibiting counsel’s mental processes
regarding same.
Huff & Puff, LLP
*
Mary McMatter
Attorney Work
Product Doctrine
The Privilege Log
Best Practices
Take the time to carefully mine your opponent’s
log and analyze the information
Procedurally sufficient?
How detailed is the description?
Significant Omissions in dates or details?
Over-inclusive – protect non-privileged matters
or “bad” facts
Challenge over-inclusive logs by motion to
compel or in camera inspection
The Privilege Log
Best Practices
Take the time to carefully draft your privilege log
following FRCP 26(b)(5)(A)(ii) or Ill. Sup. Ct. R.
201(n) to reduce the likelihood of a challenge
Obtain list of attorneys, paralegals, and legal
secretaries
Know the source of the documents
8. Objections
Best Practices
Use It or Lose It!
Must object to poorly drafted discovery or risk
waiver
Add a general objection based on attorney-client
privilege
Especially with subpoenas - serve objections and
responses as soon as possible
Add a general objection on the attorney-client
privilege
9. Clawback Agreements
Best Practices
Allow for the return of inadvertently produced privileged information
without waiver
Governed by FRCP 26(b)(5)(B) - provides a party may request the
return of inadvertently produced information, and upon request the
opposing party “must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose
the information until the claim is resolved; must take reasonable
steps to retrieve the information if the party disclosed it before
being notified; and may promptly present the information to the
court under seal for a determination of the claim.” The producing
party must preserve the information until the claim is resolved.
Clawback Agreements
Best Practices
Include a general objection to all discovery re
the return of inadvertently produced attorneyclient privileged information
Danger: just because you have an agreement
in Illinois, this may not govern whether a waiver
has occurred in another jurisdiction that strictly
construes privilege waivers
10. Read the Rules
Best Practices
Be meticulous in following the rules
Read the Court’s Standing Order
11. Pick Your Battles
Prioritize your client’s issues
Don’t fight if you do not have to
Document everything
Kristen E. Hudson
Partner, Schopf & Weiss LLP – Pro Bono Chair
J.D. Magna Cum Laude, John Marshall Law
School
B.A. With Honors, University of North Carolina at
Chapel Hill
Board Member, Chicago Volunteer Legal Services
Contact: 312.701.9345 or [email protected]