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What’s New Since December 1?. Ten Emerging Trends in E-Discovery. 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

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What s new since december 1

What’s New Since December 1?

Ten Emerging Trends in E-Discovery


Presenters

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


  • New rules new challenges

    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


    Trend no 1 courts set minimum standards

    Trend No. 1:Courts Set Minimum Standards


    Trend no 1 courts set minimum standards1

    Trend No. 1:Courts Set Minimum Standards

    • Rule 26(f) forces party to confer early and reach agreement on key e-discovery 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


    Trend no 1 courts set minimum standards2

    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)


    Trend no 1 courts set minimum standards3

    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


    Trend no 2 discovery battles take center stage

    Trend No. 2:Discovery Battles Take Center Stage


    Trend no 2 discovery battles take center stage1

    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


    Trend no 2 discovery battles take center stage2

    Trend No. 2:Discovery Battles Take Center Stage

    • Why the interest in sanctions?

    • Consider the ease with which electronically stored information can be lost


    Trend no 2 discovery battles take center stage3

    Trend No. 2:Discovery Battles Take Center Stage


    Trend no 2 discovery battles take center stage4

    Trend No. 2:Discovery Battles Take Center Stage


    Trend no 2 discovery battles take center stage5

    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


    Trend no 3 sanctions become meaningful threat

    Trend No. 3:Sanctions Become Meaningful Threat


    Trend no 3 sanctions become meaningful threat1

    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”


    Trend no 3 sanctions become meaningful threat2

    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


    Trend no 4 erosion of the attorney client privilege

    Trend No. 4:Erosion of the Attorney Client Privilege


    Trend no 4 erosion of the attorney client privilege1

    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).


    Trend no 4 erosion of the attorney client privilege2

    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


    Trend no 5 inaccessible data not really inaccessible

    Trend No. 5:Inaccessible Data Not Really Inaccessible


    Trend no 5 inaccessible data not really inaccessible1

    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


    Trend no 6 best practices standards begin to emerge

    Trend No. 6:“Best Practices” Standards Begin to Emerge


    Trend no 6 best practices standards begin to emerge1

    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


    Trend no 6 best practices standards begin to emerge2

    Trend No. 6:“Best Practices” Standards Begin to Emerge

    • Electronic Discovery Reference Model Project

      • Found At:

        • http://www.edrm.net/wiki/index.php/Main_Page

      • Multiple Modules

        • Main Page

        • Records Management

        • Identification

        • Preservation

        • Collection

        • Processing

        • Review

        • Analysis

        • Production

        • Presentation

    • Other EDRM Projects

      • Code of Conduct

      • Metrics

      • XML Schema for Metadata


    Trend no 6 best practices standards begin to emerge3

    Trend No. 6:“Best Practices” Standards Begin to Emerge


    Trend no 7 electronic resources abound

    Trend No. 7:Electronic Resources Abound


    Trend no 7 electronic resources abound1

    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?


  • Trend no 8 firms adopt new approaches to staffing

    Trend No. 8:Firms Adopt New Approaches to Staffing


    Trend no 8 firms adopt new approaches to staffing1

    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


    Trend no 8 firms adopt new approaches to staffing2

    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 e-discovery processing in-house

      • Risk-reward analysis to handling processing internally


    What s new since december 1

    Trend No. 8:Firms Adopt New Approaches to Staffing

    • Difficult management lie ahead to cope with the demands of e-discovery

    • Managing the many challenges of e-discovery is “like herding cats ”


    Trend no 9 corporations finally recognize the risks

    Trend No. 9:Corporations Finally Recognize the Risks


    Trend no 9 corporations finally recognize the risks1

    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


    What s new since december 1

    Trend No. 9:Corporations Finally Recognize the Risks

    “The Motion has been made and seconded

    that we stick our heads in the sand.”


    Trend no 9 corporations finally recognize the risks2

    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


    What s new since december 1

    Trend No. 10:Vendors Consolidate and Expand


    Trend no 10 vendors consolidate and expand

    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


    Trend no what lies ahead

    Trend No. ??:What Lies Ahead?


    Trend no what lies ahead1

    Trend No. ??:What Lies Ahead

    • Will there be unintended consequences of e-Discovery 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?


    Your turn to share

    Your turn to share….

    • What additional trends do you see?

    • What changes are on the horizon?


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