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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 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 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 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 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 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 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 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 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 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
slide31

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 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
slide34

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
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 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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