Transcript Protocols and Practice Support

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Ten Emerging
Trends in
E-Discovery
What’s New Since December 1?
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Presenters
• Browning Marean
• Attorney, DLA Piper, us, San Diego
• Stephen Dooley
• Electronic Discovery, Sullivan &
Cromwell, New York
• Arthur L. Smith
• Attorney, Husch & Eppenberger,
LLC., St. Louis
• Debbie McReynolds
• Legal Assistant, Husch &
Eppenberger, St. Louis
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New Rules, New Challenges
• F.R.Civ.P. Amendments
effective 12/1/06
– Basic Rule:
• “If relevant document exists in
electronic form, it must be located
and produced in electronic form”
– Paradigm Shift
• Early attention to discovery of
potential sources of relevant
Electronically Stored Information
(“ESI”)
• Early attention paid to preservation
obligations and implementation of
“legal hold”
– Several trends clearly emerge
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Trend No. 1:
Courts Set Minimum Standards
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Trend No. 1:
Courts Set Minimum Standards
• Rule 26(f) forces party to
confer early and reach
agreement on key ediscovery issues
• Courts issue guidelines
setting minimum standards
– Local court rules on discovery
and production of E.S.I.
supplementing FRCP
– Suggested protocols mandating
early discussions and
disclosures regarding E.S.I.
– Updated list at
www.ediscoverylaw.com
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Trend No. 1:
Courts Set Minimum Standards
• Maryland District Court’s “Suggested
Protocol” represents best thinking
– Minimum standards for the kind of information
to be exchanged by the parties
– Suggests each party have ESI coordinator
– Developed by cross-sectional group led by
Magistrate Paul Grimm
– Sets defaults to be applied if parties can’t
agree
• Protocol followed by
– Northern District of Ohio
•
www.ohnd.uscourts.gov/Clerk_s_Office/Local_Rules/AppendixK.pdf
– Western District of North Carolina
•
O'Bar v. Lowe's Home Centers, Inc., 2007 WL 1299180
(W.D.N.C. May 2, 2007)
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Trend No. 1:
Courts Set Minimum Standards
• Protocol suggests that Rule 26(f) conference
include discussion of:
Scope of the litigation hold
Identification of key custodians
Nature and types of E.S.I. involved
Metadata concerns
Network infrastructure, back-ups etc.
Legacy systems with potentially discoverable E.S.I.
Records management policies
Form of production
De-duplication issues
Preservation of data on “dynamic” systems and
application of the Rule 37 “safe harbor”
Quick peek or claw back strategies for privileged
documents
E.S.I. “deemed not reasonable accessible”
Document tracking or Bates numbering
Cost sharing issues
Possibility of two-tiered discovery
Protective orders for confidential information
Earlier Rule 30(b)(6) depositions on IT systems
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Trend No. 2:
Discovery Battles Take Center Stage
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Trend No. 2:
Discovery Battles Take Center Stage
• “Attorneys who can build a
case of spoliation, therefore,
may gain a significant
advantage in the presentation
of his or her case to the jury,
even in the absence of a
separate cause of action or
formal sanction by the court.”
» From “Maximizing Damages from the
Defendant's Spoliation of Evidence”
by Maury and Steve Herman, Trial
Magazine May, 2005
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Trend No. 2:
Discovery Battles Take Center Stage
• Why the interest in
sanctions?
• Consider the ease with
which electronically
stored information can
be lost
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Trend No. 2:
Discovery Battles Take Center Stage
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Trend No. 2:
Discovery Battles Take Center Stage
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Trend No. 2:
Discovery Battles Take Center Stage
• Spoliation is the loss or
destruction of potentially
relevant evidence at a time
when the party was under a
duty to preserve
• Sanctions can include:
– Monetary penalties
– Preclusion of evidence
– Adverse inference instruction
– Default judgment
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Trend No. 3:
Sanctions Become Meaningful Threat
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Trend No. 3:
Sanctions Become Meaningful Threat
• Recent Case of Note
– United Medical Supply Co., Inc.
v. United States
– 2007 WL 1952680 (Fed. Cl.
June 27, 2007)
• Scholarly review of case law
among the circuits on the
imposition of sanctions under:
– Rule 11
– Rule 37
– Inherent Power of the Court
• Slaps sanctions on U.S. for
“reckless disregard of its duty to
preserve evidence”
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Trend No. 3:
Sanctions Become Meaningful Threat
• Recent Case of Note
– In Re September 11th Liability
Insurance Coverage Cases
– 2007 WL 1739666 (S.D.N.Y.
June 18, 2007)
• Imposes Rule 11 Sanction of
$750,000 against attorneys and
insurer for asserting unfounded
denials and preventing
discovery
• Imposes Discovery Sanction of
$500,000 against attorneys and
insurer For delays in disclosing
relevant documents and
unjustifiably increasing cost of
discovery
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Trend No. 4:
Erosion of the Attorney Client Privilege
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Trend No. 4:
Erosion of the Attorney Client Privilege
• “[W]here legal advice of any kind is
sought from a professional legal
advisor in his capacity as such, the
communications relevant to that
purpose, made in confidence by the
client, are . . . permanently
protected from disclosure [unless]
the protection be waived.”
– Diversified Indus. v. Meredith,
572 F.2d 596, 602 (8th Cir. 1978).
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Trend No. 4:
Erosion of the Attorney Client Privilege
•
Courts lifting the veil of protection on
preservation and production
– Production of hold memos
– Depositions of house counsel on
production issues
– Depositions of witnesses on instructions
from counsel regarding document
collection
•
Transparency is the name of the game
–
See, e.g., Cache La Poudre Feeds, LLC v. Land
O’Lakes, Inc. et al., 2007 WL 684001 (D. Colo. March
2, 2007); School-Link Technologies, Inc. v. Applied
Resources, Inc., 2007 WL 677647 (D. Kan. Feb. 28,
2007)
–
See, also, Wachtel v. Guardian Life et al., 2007 US
Dist. LEXIS 43842 (D. N.J. 2007), applying the crime
fraud exception to the privilege to permit piercing the
privilege veil
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Trend No. 5:
Inaccessible Data Not Really Inaccessible
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Trend No. 5:
Inaccessible Data Not Really Inaccessible
• Rules permit part to object to
production of ESI “not
reasonably accessible by
reason of undue burden or
costs”
• For courts, this is really just
an opportunity to consider
cost shifting
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Trend No. 6:
“Best Practices” Standards Begin to Emerge
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Trend No. 6:
“Best Practices” Standards Begin to Emerge
• Sedona Principles Updated
– http://www.thesedonaconference.org/
– First issued 2004
• Often cited by the Courts
• Attempt to capsule the issues
involved in e-Discovery
• Major Changes:
– Original principles unchanged
– Case law annotations updated
– Explanatory notes updated
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Trend No. 6:
“Best Practices” Standards Begin to Emerge
•
Electronic Discovery Reference Model
Project
–
Found At:
•
–
Multiple Modules
•
•
•
•
•
•
•
•
•
•
•
http://www.edrm.net/wiki/index.php/Main_Page
Main Page
Records Management
Identification
Preservation
Collection
Processing
Review
Analysis
Production
Presentation
Other EDRM Projects
–
–
–
Code of Conduct
Metrics
XML Schema for Metadata
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Trend No. 6:
“Best Practices” Standards Begin to Emerge
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Trend No. 7:
Electronic Resources Abound
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Trend No. 7:
Electronic Resources Abound
• Lawyer blogs, vendor websites
and e-mail listservs making it
easy to stay current
• A few favorite sites:
• www.ediscoverylaw.com
• www.krollontrack.com
• www.applieddiscovery.com
• www.electronicdiscoveryblog.com/
• www.discoveryresources.org
• www.craigball.com
• What the judges are reading:
• http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf
• What are your favorites?
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Trend No. 8:
Firms Adopt New Approaches to Staffing
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Trend No. 8:
Firms Adopt New Approaches to Staffing
• Firms form
interdisciplinary teams
– Lawyers, Lit Support
Professionals and Experts
– Blending expertise
• Goals
– Consistency
– Provide expert support for
all litigators
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Trend No. 8:
Firms Adopt New Approaches to Staffing
• Firms turn to contract
lawyers to cut document
review costs
– Fighting the “boredom factor”
for young associates and
paralegals
• Firms look for ways to keep ediscovery processing inhouse
– Risk-reward analysis to handling
processing internally
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Trend No. 8:
Firms Adopt New Approaches to Staffing
• Difficult
management lie
ahead to cope with
the demands of ediscovery
• Managing the many
challenges of ediscovery is “like
herding cats ”
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Trend No. 9:
Corporations Finally Recognize the Risks
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Trend No. 9:
Corporations Finally Recognize the Risks
• Early surveys showed
that most of corporate
America unprepared for
challenge of e-Discovery
• E-Discovery rarely an
issue in the 80’s and 90’s
• “Don’t ask, don’t tell”
agreements
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Trend No. 9:
Corporations Finally Recognize the Risks
“The Motion has been made and seconded
that we stick our heads in the sand.”
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Trend No. 9:
Corporations Finally Recognize the Risks
• Now they’re getting ready
– Appointing e-discovery liaison
within the corporate hierarchy
– Updating records retention
policies on electronic records
– Adopting new tools for data
recovery
• Installing apps like Encase
Enterprise, Veritas, Digit,
Kazeon, etc.
• Adopting new content
management strategies
– Selecting preferred vendors
– National e-Discovery counsel
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Trend No. 10:
Vendors Consolidate and Expand
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Trend No. 10:
Vendors Consolidate and Expand
• Moving from specialty
vendors to full service firms
– From records creation and
retention to
• Collection
• Review
• Production
• Strengthening search
capabilities
• Meeting challenges of
extraterritorial discovery
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Trend No. ??:
What Lies Ahead?
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Trend No. ??:
What Lies Ahead
• Will there be unintended
consequences of eDiscovery and its costs?
– Moving business and
records off shore?
– Writing arbitration clauses
with strict limits on
discovery?
– Will litigation as we know it
collapse under the weight
of the e-Discovery burden?
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Your turn to share….
• What additional trends do
you see?
• What changes are on the
horizon?
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