Presentation Transcript

1. THE E-DISCOVERY CHALLENGE:PRACTICE AND ETHICS

   Presentation By MICHAEL YAGER Director of E-Discovery myager@spottsfain.com / 804.343.6173
2. THE CLASSIC PRACTICE OF LAW
3. THE CLASSIC PRACTICE OF LAW
4. THE QUANTUM PRACTICE OF LAW
5. THE QUANTUM PRACTICE OF LAW
6. THE QUANTUM PRACTICE OF LAW
7. E-DISCOVERY – WHAT IS IT? Discovery has been a part of law for a very long time. What is different today?
8. The New Challenge
9. E-DISCOVERY Federal Rules amended in 2006 to reflect the collection of electronically stored information
10. FEDERAL COURT DECISIONS SANCTIONS GROWING EXPONENTIALLY
11. E-DISCOVERY – WHAT IS IT? Discovery has been a part of law for a very long time. What is different today?
12. E-DISCOVERY – WHAT IS IT? Discovery has been a part of law for a very long time. What is different today?
13. WHAT IS IMPORTANT TO US?
14. LEAVING OLD COMFORT ZONES BEHIND
15. THE NEW LOOK OF LAW
16. THE SHADOW OF CASES
17. CASE LAW
18. CASE LAW
19. CASE LAW
20. CASE LAW
21. CASE LAW
22. CASE LAW
23. CASE LAW
24. CASE LAW
25. CASE LAW AN OUNCE OF PREVENTION TO AVOID A POUND OF SANCTIONS: NEW YORK APPELLATE COURT SANCTIONS FAILURE TO PRESERVE DOCUMENTS MONTHS BEFORE LITIGATION IS COMMENCED By: Nicole Bearce Albano, Esq. and Ryan J. Cooper, Esq. February 16, 2012
26. CASE LAW
27. FEDERAL COURT DECISIONS SANCTIONS GROWING EXPONENTIALLY
28. E.I. Du Pont De Nemours and Companyv.Kolon Industries, Inc. “Any Level of fault, whether it is bad faith, willfulness, gross negligence, or ordinary negligence, suffices to support a finding of spoliation.” Judge Robert E. Payne, Senior United States District Judge, Eastern District of Virginia, 4th Federal Circuit, July 21, 2011

29. The eDiscovery Case Management Template

    The Secret to Project Management Success
30. FOUNDATION OF AN E-DISCOVERY MATRIX
31. The eDiscovery Matrix Litigation Hold Key Custodian Interviews (defining the data sets) IT Interview (defining possible data repositories) Preservation in Place, or by Collection (Form of Collection) ECA (Early Case Assessment) Review in Native Processing for Production Production Privilege Logs
32. And so the Matrix Begins … Determine preservation strategy and prepare for Collection of hard docs and of ESI Scheduling of IT and/or Custodial Interviews to determine repositories of data, harvest information, and reinforce preservation Litigation Hold instruments to the appropriate management/ custodians The Overview – Master Plan Step 4 Step 3 Step 2 Step 1
33. And so the Matrix Begins … Collection of hard docs and of Electronically Stored Information Step 5
34. And so the Matrix Begins … Cull Down/ECA collected ESI Collection of hard docs and of Electronically Stored Information Step 6 Step 5
35. And so the Matrix Begins … Attorney Review – attorneys review in native, code for responsiveness and issues, code for redaction on the review platform Cull Down/ECA collected ESI – upload to review platform Collection of hard docs and of Electronically Stored Information Step 7 Step 6 Step 5
36. And so the Matrix Begins … Attorney Review – attorneys review in native, code for responsiveness and issues, code for redaction on the review platform Production algorithms are run Cull Down/ECA collected ESI – upload to review platform Collection of hard docs and of Electronically Stored Information Step 8 Step 7 Step 6 Step 5

37. RULE 26 CONFERENCEor the equivalent

    Attemptearlyagreementbetweencounselonkeycustodians and forms of production
38. THE E-DISCOVERY MATRIX Properly used, it can control and manage the world of ESI – efficiently, productively, and defensibly
39. Everyone is a Part of the E-Discovery World Awareness that everything you do touches data, and can be in play Awareness that what you do with data can one day become an issue in a different context Awareness that the hint of conflict changes the landscape of your thinking, even if ever so slightly Utilization of the Template – The Matrix – consistently and effectively
40. ETHICS IN E-DISCOVERY Officers of the Court Code of ConductExtendstoEveryComponent of Practice IsPerhaps the GreatestBalancing Factor in an E-Discovery World GoneMad
41. FUNDAMENTAL FORCESACCOUNTING FOR MOST ETHICS PROBLEMS A General Lack of TechnologicalSophistication Over-ZealousAttorneyConduct A Lack of Development of Professional Duties as anAdvocate Competence in the Process of E-Discovery
42. ETHICS REQUIREMENTS ABA Rule 1.3 EthicsRequiresDiligence. Diligencenotpossibleunlessyou are competent and actuallyknowwhatto do and when ABA Rule 3.2 Lawyers are requiredto expedite litigation. How can one be fast and efficientifoneis at a losswithin the field of E-Discovery
43. ETHICS ABA Rule 3.4 Fairness “Unfortunately, in e-discoverymostattorneys are stillstuck in the non-cooperativewin/lose discoverybattle. Theymistakenlythink it istheirjobtonotonlyargue the law and application of the lawto the givenfacts, butalsoto try tochange the givenfacts, tohide and obfuscatefactstheythink are adverse totheirclient.” Ralph Losey, Esq. Ethics of ElectronicDiscovery
44. ETHICS WILL DRIVE E-DISCOVERY REFORM Lawson v. Sun Microsystems, Inc., 2010 WL 503054 (S.D. Ind. February 8, 2010) Dutytoreasonablycommunicate Dutytoabideby a client’sdecision Dutytomaintainconfidentiality of information Dutyuponreceivinginadvertentlyproducedinformation Dutyuponreceivingimproperlyobtainedinformationfrom the client or a thirdparty