Emerging Topics for E-Discovery. October 22, 2014

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1 Emerging Topics for E-Discovery October 22, 2014

2 ACEDS Membership Benefits Training, Resources and Networking for the E-Discovery Community! Exclusive News and Analysis! Weekly Web Seminars! Podcasts! On-Demand Training! Networking Join Today! aceds.org/join or Call ACEDS Member Services ! Resources! Jobs Board & Career Center! bits + bytes Newsletter! CEDS Certification! And Much More! ACEDS provides an excellent, much needed forum to train, network and stay current on critical information. Kimarie Stratos, General Counsel, Memorial Health Systems, Ft. Lauderdale

3 Presenters Lisa Simmons Partner of Edwards Wildman Palmer LLP Carolyn Young Solutions Engineer at Advanced Discovery

4 Myth #1 ediscovery is for Corporate Defendants

5 Myth #1

6 Myth #1 Plaintiffs Responsibility Plaintiffs have e-preservation obligations. Even unsophisticated plaintiffs have these obligations. Courts have invoked the availability of ESI to require litigants to identify facts supporting positions at early stage.

7 Myth #1 Plaintiffs Responsibility Painter v. Atwood, 2014 U.S. Dist. LEXIS (D. Nev. Mar. 18, 2014 Plaintiff and key witness destroyed relevant Facebook comments and text messages after retaining counsel. Plaintiff claimed she did this randomly she was a 22 year old girl who would not have known better Held: Once plaintiff retained counsel, her counsel should have informed her of her duty to preserve evidence....

8 Myth #1 Plaintiffs Responsibility Apple Inc. vs. Samsung Electronics Co., Ltd., 888 F. Supp 2d 976 (N.D. Ill. 2012) Failure to issue litigation hold after receiving pre-suit summary of claims. Failure to suspend system s automatic destruction policy. Apple also failed to issue litigation hold for period of time, citing pre-existing document retention notices and culture of retention.

9 Myth #1 Plaintiffs Responsibility In Re Domestic Drywall Antitrust Litig., MDL No. 2437, 13-MD-2437 (E. D. Pa. May 12, 2014) Defendant moved to compel answers to contention interrogatories. Plaintiff argued they were premature. Ignoring the capabilities which ESI allows the parties to search for and produce factual information is like pretending businesses still communicate by smoke signals.

10 Myth #2 Issuing a broad litigation hold upon notice of a claim is a prudent best practice

11 Myth #2

12 Myth #2 Lit Hold Compliance In Re Actos (Pioglitazone) Prods. Liab. Litig., 2014 U.S. Dist. Lexis (W.D. La. Jan. 27, 2014) MDL product liability Litigation hold issued in 2002 and refreshed many times. First lawsuit filed in 2010 or Missing - 46 custodial files from departed employees. Some of missing s and files were recovered. And Plaintiffs were able to recover and identify at least one important which had been lost.

13 Myth #2 Lit Hold Compliance In Re Actos: Judge s findings Defendant breached duty to preserve. She would determine nature and strength of adverse instruction after hearing evidence at bellweather trial. Jury could consider spoliation evidence. Denied motion for default judgment. She might shift plaintiffs costs, fine defendant or order restoration of deleted files.

14 Myth #2 Lit Hold Compliance In Re Actos: Judge s findings Imposed punitive damages award. $6,000,000,000

15 Myth #2 Lit Hold Compliance BUT: In Re Actos: Whitlach v. Takeda, Slip. Op., Case No. 12L6087 (Cook County, Illinois) Defendant destroyed custodial files for 19 current or former employees. Two weeks before trial, plaintiff moved for sanctions. Plaintiff s belated objection to destruction (months after learning about it) militates against severe sanctions. Litigants must prove (not simply claim) prejudice.

16 Myth #3 Predictive coding may improve accuracy when compared to manual linear review

17 Myth #3

18 Myth #3 TAR TAR extrapolates human based decisions from a subgroup of records to the rest of the population The technology and approach are very similar to Pandora, but for documents.

19 Predictive Coding Workflow Human Review Sample Set Identify Sample Document Set Computer Categorizes All Documents Against Sample Human Validate Results

20 Myth #3 TAR Grossman-Cormack (JOLT) Study, Richmond Journal of Law and Technology Vol. XVII, Issue 3 [B]y all measures, the average efficiency and effectiveness of technology-assisted reviews surpasses that of manual reviews. Average, human review of only 1.9% of the documents Fifty-fold savings strong evidence that the technology-assisted processes studied here yield better overall results, and better precision, than manual review process.

21 Myth #3 TAR See Federal Housing Finance Agency v. HSBC North America Holdings, Inc., 2014 U.S. Dist. LEXIS (S.D.N.Y. Feb. 14, 2014) (citing studies showing manual reviewers returned 25 80% of relevant documents; TAR returned 67 86%). Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. Feb. 24, 2012): [C]omputer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.

22 Myth #4 Litigants are obligated to use ediscovery methods that lead to best result

23 (LIKELY) BUSTED Myth #4

24 Myth #4 ediscovery Methods Kleen Prods. LLC v. Packaging Corp. of America, 2012 U.S. Dist. LEXIS (N.D.Ill. Sept. 28, 2012). Sedona Principle 6: [R]esponding parties are best situated to evaluate the procedures, methodologies, and techniques appropriate for presenting and producing their own ESI. Courts want to see cooperation: See In Re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., 2013 U.S. Dist. LEXIS (N.D. Ind. Aug. 21, 2013) (refusing to order production of seed set but finding defendant s position troubling ). Progressive Casualty Ins. Co. v. Delaney, 2014 U.S. Dist. LEXIS (D. Nev. May 19, 2014) ( [h]ad the parties worked with their e-discovery consultants and agreed at the outset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol ).

25 Myth #5 Discovery Proportionality is new wording that may be adopted by pending FRCP Rule changes

26 Myth #5

27 Myth #5 ediscovery Methods Now: 26(b)(2)(c) (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources and any matter relevant to any parties, claim or defense, including that which appears reasonably calculated to lead to the discovery of admissible evidence.

28 Myth #5 Proportionality Proposed: Discovery shall be proportional to the needs of the case, measured by cost-benefit calculus like that in Rule 26(b) (2)(c)(iii): Importance of issues Amount in controversy Importance of discovery Comparison of benefit to burden/expense The parties relative access to relevant information Information within this scope of discovery need not be admissible in evidence to be discoverable. Proposed Rule 26(c) (1)(B): allocation of expenses in protective orders

29 Myth #5 Explanation (Cont.) Now: Rule 37(e) safe harbor protects against sanctions under rules for loss of ESI because of routine, good faith operation of an electronic information system. But: Circuits have applied inconsistent standards and Rule 37 (e) did not preclude court s inherent power to issue sanctions, leading to over-preservation.

30 Myth #5 Explanation (Cont.) Proposed amendments focus on sanctions, rather than regulation of preservation. Reasonableness, not perfection, is the rule. Rule applies if ESI that should have been preserved in the anticipation or conduct of litigation is lost: Because a party failed to take reasonable steps to preserve it, and It cannot be restored or replaced through additional discovery.

31 Myth #5 Explanation (Cont.) Rule 37(e)(1): Upon finding of prejudice, court may order measures necessary to cure prejudice. Court may impose most severe sanctions where party losing information acted with intent to deprive another party of information s use in litigation.

32 Myth #6 The Key Imperative For ediscovery is a Strong Collaboration Between Legal, IT, Compliance and Service Providers.

33 Myth #6

34 Myth #6 Internal Cooperation [I]mposition of sanctions for spoliation of evidence is a relatively rare occurrence. Sekisui Am. Corp. v. Hart, 945 F. Supp. 2d 494, 497 n.2 (S.D.N.Y. 2013). When sanctions are imposed, failures to communicate and collaborate are frequently involved.

35 Myth #6 Internal Cooperation E.g. Sekisui: delayed litigation hold vendor told even later custodian s deleted to free up space on server certain s printed which failed to preserve metadata Ethicon, Inc.: company did not identify consistent methods for preserving departing employees thought company would handle managers thought exit interviews would address IT wiped hard-drives for departing employees unless instructed otherwise

36 Myth #6 Internal Cooperation Pradaxa: vendors did not search certain shared network drives because given wrong logins text messages on phones used for company business auto-deleted Cognex: company failed to make copy of CD before shipping to expert and FedEx destroyed

37 Myth #7 An attorney s duty of competence does not encompass technical ediscovery issues

38 Myth #7

39 Myth #7 Competence ABA Model Rule 1.1, Comment [8]: Includes benefits and risks of relevant technology. California proposed ethics opinion Lack of e-discovery competence = NOT competent to handle certain litigation matters.

40 Myth #7 Competence Counsel need to be able to: Assess needs Implement preservation Analyze/understand client s ESI systems Identify custodians Perform searches Collect ESI defensibly Advise client about options Meet and confer Produce ESI

41 Conclusions 1) Attorneys must be knowledgeable about ESI ediscovery. 2) All partied to a litigation are subject to ediscovery. 3) Legal hold compliance must be actively monitored. 4) Predictive coding is a viable proven technology. 5) It s your discovery process, you can select methods, but cooperation with the requesting party will simplify issues. 6) Proportionality will officially enter the FRCPs with the 2015 revisions. 7) Internal cooperation will greatly improve your outcomes.

42 DATA AdvancedDiscovery.com

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