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Prevention & Pitfalls in E-Discovery. Panelists: Ky Fullerton, Umpqua Bank Anton Litchfield, Encore Discovery Solutions Josh Sasaki, Miller Nash LLP Moderator: Jovita Wang, Miller Nash LLP Sponsored by Miller Nash LLP. Failure to Plan is Planning to Fail.

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prevention pitfalls in e discovery

Prevention & Pitfalls in E-Discovery


Ky Fullerton, Umpqua Bank

Anton Litchfield, Encore Discovery Solutions

Josh Sasaki, Miller Nash LLP


Jovita Wang, Miller Nash LLP

Sponsored by Miller Nash LLP

potential sources of electronically stored information
Potential Sources of Electronically Stored Information


File Server

Email Server

Document Mgmt System


Databases & Apps.


Datacenter / IT

Third Parties

Cloud Computing

Data Archive

File Hosting


External Drives

Web Email

Personal MediaPlayers

Personal Computers

Thumb Drives

CDs, DVDs,Floppy Disks


e discovery related sanctions first half 2010
E-Discovery Related Sanctions First Half 2010

Sanctions Granted In 68% Of Cases Where It Was Requested

Source: Gibson Dunn 2010 Mid-Year Survey July 13, 2010

e discovery sanctions
E-Discovery Sanctions
  • The Scarlet Letter – $250,000 in civil contempt sanctions and $500,000 "purging sanction” in Green v. Blitz U.S.A, Inc., No. 2:07‑CV‑372 (TJW), 2011 WL 806011 (ED Tex Mar. 1, 2011). The court also ordered defendant to provide a copy of the court’s order granting the sanctions and detailing the defendant’s discovery abuse to “every Plaintiff in every lawsuit it has had proceeding against it” for the past two years and also in every new lawsuit for thenext five years.
  • Mandatory Funding of E-Discovery seminars– Pinstripe, Inc. v. Manpower, Inc., No. 07‑CV‑620‑GKF‑PJC, 2009 WL 2252131 (ND Okla July 29, 2009).
  • Potential Jail Time – Victor Stanley, Inc. v. Creative Pipe, Inc., 269 FRD 497 (D Md 2010). 
  • Unfavorable Settlements – The threat of sanctions and increased costs caused by E-Discovery mistakes may force unfavorable settlements.
why else should we care
Why Else Should We Care?

Legal Reasons

  • Added cost of motion practice and other corrective action
  • Exposure to other litigation and investigations
  • Potential criminal penalties associated with government investigations or audits
  • Evidence found may support your case.
  • Even if evidence is damaging, case theory can be crafted to deal with bad evidence—better than setting forth a theory only to have it undermined by ESI found at a later date.

Business Reasons

  • Negative publicity and impact on branding
  • Negative impact on stock price
  • Embarrassing/damaging information that should have been purged is retained and produced
duty to preserve
Duty to Preserve

"The duty to preserve typically arises from the common law duty to avoid spoliation of relevant evidence for use at trial; the inherent power of courts; and court rules governing the imposition of sanctions."

-The Sedona Conference Working Group on Elec. Document Retention & Prod. (WG1), TheSedona Conference Commentary on Legal Holds: The Trigger & The Process (2007),at 1, available at

decisions decisions decisions
  • Evaluate the case early on.
  • Consider the nature of the dispute and evidence at issue.
  • Identify the number of potential custodians and sources of ESI.
  • Consider the risk of using internal IT personnel.
  • Cheaper price quotes may not be better.
  • Vendors charge differently.
  • Do I need an expert witness?
understanding e discovery costs
Understanding E-Discovery Costs
  • $1 per page – Approximate cost of taking 1 page through e-Discovery steps including “first-level” document review
  • 50,000 pages – Average page volume of 1 gigabyte
  • 250,000 pages – One employee’s average volume of ESI kept on a computer
  • 52 additional copies – Number of copies of the same document stored in weekly computer backups during a 1 year period
preventative tips
Preventative Tips
  • Take control of the process EARLY
  • Implement good management policies
    • Establish procedures for suspension of ordinary destruction practices
    • Establish a cross-discipline approach
    • Establish policies that quickly identify and isolate potentially relevant documents
    • Provide safe harbor from sanctions for nonproduction or spoliation under Rule 37(e)2
  • Good communication- don’t let counsel run amok
  • Involve in-house counsel or expert in theRule 26 meet-and-confer process
getting personnel to cooperate
Getting Personnel to Cooperate
  • Communicate the importance of proper forensic best practices at the earliest opportunity
  • Get them involved in the process
    • Seek to leverage their internal resources
    • Involve their IT leader
    • Have a designated gatekeeper
  • Put the costs in perspective
    • Small upfront costs for safety and savings later
what s a good retention destruction policy
What’s a Good Retention/Destruction Policy?
  • Preserve with a strategy
    • Identify
      • What type of information is generated
      • Where the information is stored
      • How the information is stored
      • Who is knowledgeable about the information
  • Preserve in a manner that complies with all regulations and laws
  • Understand that longer does not equal better.
  • Tailor the policy in accordance with organizational needs
  • Document and follow the policy!!!
litigation holds
Litigation Holds

From: Ky Fullerton

Sent: Friday, May 21, 2010 12:55 PM


Subject: PLEASE READ: Preservation of Records/(Plaintiff)

Importance: High

Umpqua Bank recently a notice of charge of discrimination from the U.S. Equal Employment Opportunity Commission regarding the subject employee.  We will be sending a more formal memorandum to you on Monday with instructions regarding record preservation, but please review this e-mail in the interim.

Until further notice, do not destroy or delete any documents, e-mails, notes, or records of any kind relating to (Plaintiff).  You must also retain all records relating to any open positions at Umpqua Bank for which (Plaintiff) submitted an employment application and was rejected, including but not limited to all applications, test forms, or any similar documents completed by other applicants for such positions.

Please do not discuss this matter with anyone inside or outside the bank, including (name).  If you receive any questions relating to (Plaintiff’s) employment situation and/or claim, please refer the person making the inquiry to me or to Kathy Murray in Cultural Enhancement.

Please call me at (503) 727-4295 if you have any questions regarding this matter.

Ky Fullerton

Vice President/Corporate Attorney

Umpqua Bank 

cost saving technologies
Cost-Saving Technologies
  • Microsoft Exchange 2010 includes E-Discovery capabilities. For instance, a legal hold can be placed on a user’s email – mailbox or Personal Archive (PST). Multi-mailbox searches are also available.
  • Other technology a corporation can employ are: Symantec Enterprise Vault, EMC, and Iron Mountain.
employ data minimization
Employ Data Minimization
  • Reduce Data Volume
    • Don’t store unnecessary data
    • Control scope of electronic discovery
    • Employ data minimization
  • Improve Efficiency
    • Use of technology
    • Employ best practices
  • Control Cost
    • Leverage economies of scale
    • Budget management
technology practices for reducing document review costs
Technology Practices for Reducing Document Review Costs
  • Duplicate review propagation
  • Family review propagation
  • Email thread & near duplicate consolidation
  • Document categorization
  • Concept clustering & searching
thank you for attending
Thank you for attending

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