Turning the Tide The Need for E-Discovery Education

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1 Turning the Tide The Need for E-Discovery Education Hon. David J. Waxse, U.S. Magistrate Judge, District of Kansas Ralph C. Losey, Esq., Partner and National e-discovery Counsel, Jackson Lewis LLP Rhea N. Frederick, JD, Client Relationship Manager, Kroll Ontrack July 20, 2011

2 Slide Materials To download a complimentary copy of today s slide materials, please follow these instructions: 1. Go to krollontrack.com/events 2. Click on the Course Materials tab 3. Select today s presentation, Turning the Tide The Need for E-Discovery Education 4. Enter July as the User ID and webinar as the Password 2

3 Honorable David J. Waxse U.S. Magistrate Judge, District of Kansas Author of several pioneering decisions in electronic discovery disputes Observer to The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) Lecturer on e-discovery for various professional organizations and law schools 3

4 Ralph C. Losey, Esq. Partner, National ediscovery Counsel, Jackson Lewis, LLP Publisher and principal author of popular e-discovery blog: e- discoveryteam.com Adjunct Professor of Law for e- discovery education at University of Florida College of Law Founder, owner and educator for online training program: e- DiscoveryTeamTraining.com Leading e-discovery author 4

5 Rhea N. Frederick, JD Client Relationship Manager, Kroll Ontrack Works regularly with Fortune 500 corporations to develop the most defensible, efficient and cost-effective approach when facing discovery or regulatory demands An expert in trends and legal responsibilities associated with electronic evidence 5

6 Discussion Overview The State of E-Discovery Judicial Programs to Win the Battles E-Discovery Education to Win the War 6

7 The State of E-Discovery

8 The Federal Rules of Civil Procedure Unchanged since 2006 amendments Cooperation, communication, production format and sanctions for e-discovery misconduct have been areas of significant contention in e-discovery case law Amendment proposals are currently under review 8

9 State Court Rules & Statutes 9

10 E-Discovery Costs Remain High Companies spend an average of $1.25 million a year on discovery costs High costs are caused by a number of factors Incessant motions and sanctions for party misconduct are major source of e-discovery costs Source: Kroll Ontrack, Fourth Annual ESI Trends Report (2010). 10

11 Case Law Statistics Sanctions for e-discovery misconduct correspond with rising e-discovery costs and remain high 39% 39% 25% Source: Kroll Ontrack, Year in Review ( ). 11

12 Case Law Statistics Procedural issues plague e-discovery case law at a rapidly growing rate 17% 12% 7% Source: Kroll Ontrack, Year in Review ( ). 12

13 E-Discovery Education in the Law Schools Law schools are the best suited to fill the e- discovery knowledge gap However, only a handful of law schools regularly offer comprehensive e-discovery courses, including:» University of Florida» Georgetown Law School» University of Richmond Majority of e-discovery education is provided privately 13

14 Judicial Programs to Turn the Tide

15 Electronic Discovery Special Masters Program Western District of Pennsylvania, November 2010 Creates special pool of candidates that the court or litigants can draw from if e-discovery issues arise Selection criteria includes:» Demonstrated litigation experience (particularly with e-discovery)» Demonstrated expertise with computers and technology» Mediation training and experience 15

16 Electronic Discovery Special Masters Program Duties of EDSM may include:» Developing protocols for the preservation, retrieval or search of potentially relevant ESI» Developing protective orders to address protection of confidential information» Monitoring discovery compliance» Resolving discovery disputes All findings of fact or conclusions of law subject to de novo review and opportunities for objection 16

17 Seventh Circuit Electronic Discovery Pilot Program Multi-year, multi-phase program intended to help improve e-discovery pretrial litigation procedures Guided by Principles Relating to the Discovery of Electronically Stored Information 17

18 American College of e-neutrals (ACESIN) Based in Alabama and Texas Creates freely accessible, national pool of e-discovery liaisons or e-neutrals Candidates can apply directly, or take courses to become certified E-Neutrals use e-mediations to resolve discovery disputes 18

19 E-Discovery Education to Win the War

20 E-Discovery Team Training Program Created by Ralph Losey, Esq. More in-depth extension of three-credit course taught at University of Florida Levin College of Law Program allows students to study at their own time, their own place, their own pace 20

21 E-Discovery Team Training Program Comprised of 62 online virtual classes Program is designed to take anywhere from 50 to 400 hours to complete Course are taught by Mr. Losey, as well as industry experts and judges including Judge Scheindlin, Grimm and Facciola Course is designed for and open to all law students and practitioners 21

22 E-Discovery Certifications Association of Certified E-Discovery Specialists (ACEDS)» Independent membership association» Has developed 145 multiple choice exam addressing 15 subject matter areas including information management, ethics, collection, processing, document review and international discovery 22

23 E-Discovery Certification Courses Organization of Legal Professionals (OLP)» Certified ediscovery Professional (CeDP ) certification exam was developed over 18 months» Intended to provide an exacting and tough certification exam to serve as a standardized measurement of core competencies in e-discovery 23

24 E-Discovery Certification Courses Association of Litigation Support Professionals (ALSP)» Currently developing broad industry certification exam» Intended to set the standard in the litigation support profession and signify that an individual has demonstrated the knowledge and skills required to perform competently in today s complex litigation support environment 24

25 Thought Leadership The Sedona Conference» Non-profit research and educational organization Sedona Conference E-Discovery Working Groups» WG1: Electronic Document Retention and Production» WG6: International Electronic Information Management, Discovery and Disclosure Publishes commentaries on difficult issues» Cooperation, database preservation and production, proportionality, data privacy and achieving quality in the e-discovery process 25

26 E-Discovery Certification Course Kroll Ontrack E-Discovery Certification Course» Offered for the past several years» Extensive two-day program covering all major facets of e- discovery process, from information management to document review» Expanded in 2011 to include intermediate and advanced levels» Offered in major cities throughout the U.S. with plans for expansion in

27 Parting Thoughts

28 Parting Thoughts E-discovery is a challenging and expensive process with a rapidly growing prevalence in U.S. courts Costs and challenges associated with e-discovery are exacerbated by the nearly ubiquitous lack of knowledge regarding the process Judges and attorneys must seek e-discovery education before true progress can be made 28

29 Slide Materials To download a complimentary copy of today s slide materials, please follow these instructions: 1. Go to krollontrack.com/events 2. Click on the Course Materials tab 3. Select today s presentation, Turning the Tide The Need for E-Discovery Education 4. Enter July as the User ID and webinar as the Password 29

30

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