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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

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litigation best practices

Litigation Best Practices

Sailing Through Discovery


Kristen E. Hudson

Schopf & Weiss LLP

1 litigation hold
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
Litigation HoldConsequences for non-compliance
  • Sanctionsfor 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
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 practices5
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

Litigation HoldBest Practices
insurance coverage risks covered
Insurance CoverageRisks 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
Insurance CoverageDuty 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
Insurance CoverageBest 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
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 7 th circuit program
E-discovery AgreementsPrinciples 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
E-discovery AgreementsBest 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
data collection best practices
Data CollectionBest 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
discovering e discovery best practices
Discovering E-discoveryBest 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 practices14
Discovering E-discoveryBest 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
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
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
Requests to AdmitCommittee 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
Requests to AdmitBest 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
the privilege log the shield and the sword
The Privilege LogThe 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.”

The Privilege LogFederal & State Comparison
the privilege log best practices
The Privilege LogBest 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 practices23
The Privilege LogBest 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
objections best practices
ObjectionsBest 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
clawback agreements best practices
Clawback AgreementsBest 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 practices26
Clawback AgreementsBest Practices
  • Include a general objection to all discovery re the return of inadvertently produced attorney-client 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
read the rules best practices
Read the RulesBest Practices
  • Be meticulous in following the rules
  • Read the Court’s Standing Order
11 pick your battles
11. Pick Your Battles
  • Prioritize your client’s issues
  • Don’t fight if you do not have to
  • Document everything
kristen e hudson
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