UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York

Size: px
Start display at page:

Download "UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York 10016 www.devoredemarco.com"

Transcription

1 UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE 1

2 What is ESI? Information that exists in a medium that can only be read through the use of computers Examples Word Documents Databases Spreadsheets Multimedia Files Data Backups on Magnetic Tape or Other Media CDs and DVDs 2

3 Why the Big Fuss about ESI? Potentially Massive Volume communication Numerous copies, all preserved User-generated and automatic replication Persistent data Metadata - Electronic information about contents Extraordinary volume of storage devices 3

4 Why the Big Fuss About ESI? Numerous Locations Desktop Hard Drives Laptops Servers Flash Drives CDs and DVDs Backup Tapes Spawned E-Discovery Industry Companies sort through massive amounts of data to find relevant information and produce digital output $2 Billion dollar industry, growing at 35% per year (2006) 4

5 Why Do You Care? Has your organization ever been sued? Has your organization ever had to respond to a subpoena? 90% of U.S. companies are involved in some type of litigation 5

6 Why Do You Care? You have a legal obligation to produce ESI Traditional rules of discovery still apply Information is discoverable if it is relevant to the claim or defense of any party or likely to lead to the discovery of admissible evidence. Specific rules apply only to ESI Federal Rules of Civil Procedure were amended in 2006 to specifically provide for the discovery of ESI Must produce documents as they are kept in the usual course of business or organize and label them to correspond to the categories in the request Corresponding state laws and discovery rules Traditional rules States catching up regarding specific rules for ESI Non-Binding Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information Board has a legal duty to put reasonable controls into place to ensure compliance with applicable legal standards In re Caremark Int l. Inc. Derivative Litigation (Del. Ch. 1996) 6

7 Why Do You Care? Failing to care can result in enormous costs Financial Penalties If an order to provide discovery is not complied with, the Federal Rules of Civil Procedure authorize sanctions New Jersey Court imposed $566,000 sanctions on Samsung for failing to place a litigation hold on its documents to prevent the destruction of Mosaid Technologies, Inc. v. Samsung Electronics (D. N.J. 2004) D.C. Court ordered $2.75 million sanctions on Philip Morris because corporate managers deleted after litigation began U.S. v. Philip Morris USA Inc. (D. D.C. 2004) Morgan Stanley agreed to pay a $15 million penalty for repeated production failures SEC v. Morgan Stanley & Co. (D. D.C. 2006) Generally, no sanctions may be imposed if ESI is was lost as a result of the routine, good-faith operation of an electronic information system 7

8 Why Do You Care? Adverse inference jury instruction Jury in Samsung case instructed that it may infer that the evidence would have been unfavorable to defendants Preclusion of evidence on the corresponding topic Offending managers in the Philip Morris case were not allowed to testify at trial Estoppel Entry of judgment Attorney s Fees 8

9 Why Do You Care? You can limit the costs and scope of e-discovery by implementing a records retention policy Courts may consider shifting costs of discovery to the requesting party when data is inaccessible Inaccessible includes data on backup tapes and legacy systems Courts will consider seven factors when determining whether to shift costs: The extent to which the request is specifically tailored to discover relevant information The availability of such information from other sources The total cost of production, compared to the amount in controversy The total cost of production, compared to the resources available to each party The relative ability of each party to control costs and its incentive to do so The importance of the issues at stake in the litigation The relative benefits to the parties of obtaining the information Zubulake v. UBS Warburg (S.D.N.Y. 2003) ( Zubulake I ) 9

10 Why Do You Care? You don t want to be in these situations! Minimize production costs Secure litigation advantage 10

11 What You Should Do About It Understand what you have Understand what you do keep Understand what you must keep Draft a written policy 11

12 What You Should Do About It Understand what you have Data Mapping Find the right people IT Compliance Legal Understand your systems Where does ESI reside? Create a systems overview Critical role of outside counsel Establish and preserve privilege Offers substantial protection in case of a future challenge Practical Pointer: Consider broader information privacy and security review Substantial overlap of the first phase of both Substantial cost savings of doing both together 12

13 Understand what you do keep What You Should Do About It Records retention policies Backup policies 13

14 What You Should Do About It Understand what you must keep There is no general preservation obligation Regulated Industry? (Public Utility, Public Company, Financial Services, Health Care Provider) Other Obligations There is a clear obligation to preserve when litigation is reasonably foreseeable Fact-based analysis depends on the circumstances of each case Examples of when the obligation to preserve arises: Complaint filed Discovery request received Court order Subpoena served Government or regulatory agency institutes an investigation Accident occurs that resulted in serious injury Demand letter is received Cease and desist letter received List is non-exhaustive Applies to both defensive and affirmative litigation Duty to preserve supersedes all data retention and backup policies 14

15 What You Should Do About It Draft a written records retention and legal hold policy Policy should be in writing Proactive policy ensures consistent and efficient analysis Protects against after-the-fact challenges to process quality Great cover on regular retention and destruction of business records Great cover on reasonableness of preservation decisions Great cover on reasonableness and good faith of extent and effectiveness of litigation hold Win on reasonableness and gain credibility with the judge Minimize risk of sanctions If you have a policy communicate it and follow it! 15

16 What Should Your Policy Include? Regular records retention and destruction policies and practices Team to execute preservation analysis and legal holds Outside counsel Inside counsel Key business personnel IT Compliance 16

17 What Should Your Policy Include? Process for identification of: Information that must be preserved Relevance includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. There is no requirement to maintain multiple identical copies Subject matter, claims, counterclaims, defenses Standard: possession, custody, or control Potential custodians of that information Who is likely to have relevant information? Within the organization Agents of the organization Importance of input from both business and legal Potential locations of that information Use your data map! Individuals Internal storage locations External storage locations Providers you control Third-party data storage 17

18 What Should Your Policy Include? Process for determination of how much to preserve Need not take every conceivable step to preserve all conceivably relevant data Rule 26(b)(2)(C)(iii) provides for limiting discovery when the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Rule 26(b)(2)(C)(i) provides that discovery may be limited if the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. Rule 37(f) restrains courts from imposing sanctions, absent exceptional circumstances on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. 18

19 What Should Your Policy Include? Preserving information is different from collecting information Rule 26(b)(2)(B) identifies certain ESI as not reasonably accessible because of undue burden or cost Disaster Recovery Backups Information on Legacy Systems Deleted Data May be able to shift the cost of producing such information to the opposing party Zubulake factors 19

20 What Should Your Policy Include? Directions to suspend data destruction immediately once the duty to preserve active files arises 20

21 What Should Your Policy Include? Process for dissemination of a legal hold A written hold notice is best Nature of proceeding or demand Types of information to be preserved Simple, but sufficient Nature of information to be preserved All potentially responsive documents paper and electronic Likely locations of responsive information Workstation Laptop PDA System The importance of the obligation Who to contact with questions Process for dissemination To all potential custodians To custodians of shared information IT (System information and individual devices) Operations Audit 21

22 What Should Your Policy Include? Process for documenting dissemination and follow up Track dissemination Master list of custodians and systems It s just easier! Use your data map Communicate directly with key custodians Track responses Document collection protocol Track follow up Track Changes 22

23 Document Collection and Review Necessarily determined on a case-by-case basis! 23

24 Take Advantage of Your Preparation and Process! Rule 26(f) conference among parties now must discuss and incorporate views on: any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced any issues relating to preserving discoverable evidence Advisory Committee Notes make clear that issues on the table include: Information systems at issue Individuals with knowledge Sources of ESI Information not reasonably accessible Whether either party requires metadata Local rules and state laws may reinforce these obligations 24

25 Take Advantage of Your Preparation and Process! You have much of this work done! Not a fire drill for overburdened IT and lawyers You have the answers on preservation and scope Much more likely to avoid a successful challenge 25

26 Take Advantage of Your Preparation and Process! Affirmatively limit the breadth and costs of e-discovery Limit the scope of preservation By doing work affirmatively, you can reasonably and defensibly constrain scope You can brush off requests for costly retention of backup tapes if information is otherwise preserved It is enormously costly to identify and review a potentially massive volume of information on backup tapes If necessary, you can either Agree to take periodic snap shots ; or Consider a request for cost shifting 26

27 Take Advantage of Your Preparation and Process! Affirmatively limit the breadth and costs of e-discovery Limit the scope of production By doing work affirmatively, you can reasonably and defensibly constrain scope Narrow scope of potentially responsive documents Limit time periods Limit number of custodians Request key word searching and appropriate key words Identify sources of information not reasonably accessible and remember Rule 26(b)(2)(B): Make clear that you will not produce absent a showing of good cause Make clear that you will shift the cost of production to your opponent 27

28 Take Advantage of Your Preparation and Process! Build credibility and trust If necessary, demonstrate credibility and trust to the court 28

29 THANK YOU Andrew C. DeVore DeVore & DeMarco LLP 99 Park Avenue, 16 th Floor New York, New York Phone: (212) Fax: (212)

In-House Solutions to the E-Discovery Conundrum

In-House Solutions to the E-Discovery Conundrum 125 In-House Solutions to the E-Discovery Conundrum Retta A. Miller Carl C. Butzer Jackson Walker L.L.P. April 21, 2007 www.pointmm.com I. OVERVIEW OF THE RULES GOVERNING ELECTRONICALLY- STORED INFORMATION

More information

Electronic Discovery: Litigation Holds, Data Preservation and Production

Electronic Discovery: Litigation Holds, Data Preservation and Production Electronic Discovery: Litigation Holds, Data Preservation and Production April 27, 2010 Daniel Munsch, Assistant General Counsel John Lerchey, Coordinator for Incident Response 0 E-Discovery Rules Federal

More information

Amendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents

Amendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents Amendments to Federal Rules of Civil Procedure Electronic Discovery effective Dec. 1, 2006 Copyright David A. Devine GROH EGGERS, LLC Rules amended: 16, 26, 33, 34, 37 & 45 Sources of information: Rules

More information

DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP

DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP Presented by Frank H. Gassler, Esq. Written by Jeffrey M. James, Esq. Over the last few years,

More information

Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys

Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys By Ronald S. Allen, Esq. As technology has evolved, the federal courts have

More information

ELECTRONIC DISCOVERY. Dawn M. Curry

ELECTRONIC DISCOVERY. Dawn M. Curry ELECTRONIC DISCOVERY Dawn M. Curry Nutter McClennen & Fish LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Telephone 617.439.2000 www.nutter.com E-Discovery Facts 93-99% of

More information

REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY

REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY Steven M. Gruskin Carl J. Pellegrini Sughrue Mion, PLLC 2100 Pennsylvania Ave. NW Washington, DC 20037 www.sughrue.com On December 1, 2006, the Federal

More information

E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011

E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011 E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE Ana Maria Martinez April 14, 2011 This presentation does not present the views of the U.S. Department of Justice. This presentation is not legal advice.

More information

Presented By: Attorney/Legal Technologist Cosgrave Vergeer Kester LLP. Paine Hamblen LLP 805 SW Broadway, 8 th Floor

Presented By: Attorney/Legal Technologist Cosgrave Vergeer Kester LLP. Paine Hamblen LLP 805 SW Broadway, 8 th Floor Everything You Wanted to Know About ESI and E-Discovery but Were Afraid to Ask Jason M. Pistacchio Presented By: Gregory S. Johnson Attorney Attorney/Legal Technologist Cosgrave Vergeer Kester LLP Paine

More information

ACADEMIC AFFAIRS COUNCIL ******************************************************************************

ACADEMIC AFFAIRS COUNCIL ****************************************************************************** ACADEMIC AFFAIRS COUNCIL AGENDA ITEM: 8.D DATE: March 15, 2007 ****************************************************************************** SUBJECT: Electronic Records Discovery Electronic records management

More information

A Brief Overview of ediscovery in California

A Brief Overview of ediscovery in California What is ediscovery? Electronic discovery ( ediscovery ) is discovery of electronic information in litigation. ediscovery in California is governed generally by the Civil Discovery Act. In 2009, the California

More information

General Items Of Thought

General Items Of Thought ESI PROTOCOLS & CASE LONG BUDGETS General Items Of Thought What s a GB =??? What Are Sources Of Stored Data? What s BYOD mean??? The Human Factor Is At Play! Litigation Hold Duty Arises When? Zubulake

More information

Electronic Discovery

Electronic Discovery Electronic Discovery L. Amy Blum, Esq. UCLA University of California, Los Angeles 1 Topics Not Covered Best practices for E-mail E use and retention in the ordinary course of business Records Disposition

More information

E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers

E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers MARCH 7, 2007 E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers By Tara Daub and Christopher Gegwich News of the recent amendments to the Federal Rules of Civil Procedure

More information

THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS

THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS Cynthia L. Gibson, Esq. Katz, Teller, Brant & Hild 255 East Fifth Street Suite 2400 Cincinnati, OH 45202 (513) 977-3418 cgibson@katzteller.com

More information

Data Preservation Duties and Protocols

Data Preservation Duties and Protocols Data Preservation Duties and Protocols November 2008 HOU:2858612.3 Discussion Outline I. The Differences Between Electronic and Paper Discovery II. The Parameters of Electronic Discovery III. Rule 37(e)

More information

REINHART. Labor & Employment E-News E-NEWSLETTER ATTORNEYS:

REINHART. Labor & Employment E-News E-NEWSLETTER ATTORNEYS: REINHART E-NEWSLETTER ATTORNEYS: ROBERT K. SHOLL, CHAIR JEFFREY P. CLARK JOHN H. ZAWADSKY LYNN M. STATHAS DAVID J. SISSON CHRISTOPHER P. BANASZAK ROBERT J. MUTEN DARYLL J. NEUSER SUSAN B. WOODS JENNIFER

More information

2015 ANNUAL MEETING Vancouver, BC September 11, 2015. Recent Amendments to the Federal Rules of Civil Procedure: A New Scope of Discovery?

2015 ANNUAL MEETING Vancouver, BC September 11, 2015. Recent Amendments to the Federal Rules of Civil Procedure: A New Scope of Discovery? 2015 ANNUAL MEETING Vancouver, BC September 11, 2015 Recent Amendments to the Federal Rules of Civil Procedure: A New Scope of Discovery? 2010 DUKE CONFERENCE May 10-11 Duke Law School 200 Participants

More information

Best Practices in Electronic Record Retention

Best Practices in Electronic Record Retention A. Principles For Document Management Policies Arthur Anderson, LLD v. U.S., 544 U.S. 696 (2005) ( Document retention policies, which are created in part to keep certain information from getting into the

More information

IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682. Pretrial Conferences; Scheduling; Management.

IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682. Pretrial Conferences; Scheduling; Management. IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682 Amending Civil Rules 16, 26, 33, 34, 37, and 45 concerning Discovery of Electronic Information IT IS ORDERED: 1. Civil Rule 16 is amended to read

More information

Elements of a Good Document Retention Policy. Discovery Services WHITE PAPER

Elements of a Good Document Retention Policy. Discovery Services WHITE PAPER Elements of a Good Document Retention Policy Discovery Services WHITE PAPER Document retention especially the retention of electronic data has become a hot topic in the legal industry. In the wake of several

More information

PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES

PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES What follows are some general, suggested guidelines for addressing different areas

More information

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY I. Background The Federal Rules of Civil Procedure provide for document production in the discovery process. Until recently, all types of documents

More information

DOCSVAULT WhitePaper. Concise Guide to E-discovery. Contents

DOCSVAULT WhitePaper. Concise Guide to E-discovery. Contents WhitePaper Concise Guide to E-discovery Contents i. Overview ii. Importance of e-discovery iii. How to prepare for e-discovery? iv. Key processes & issues v. The next step vi. Conclusion Overview E-discovery

More information

Measures Regarding Litigation Holds and Preservation of Electronically Stored Information (ESI)

Measures Regarding Litigation Holds and Preservation of Electronically Stored Information (ESI) University of California, Merced Measures Regarding Litigation Holds and Preservation of Electronically Stored Information (ESI) Responsible Officials: Executive Vice Chancellor and Provost Vice Chancellor

More information

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013 MDLA TTS August 23, 2013 ediscovery for DUMMIES LAWYERS Kate Burke Mortensen, Esq. kburke@xactdatadiscovery.com Scott Polus, Director of Forensic Services spolus@xactdatadiscovery.com 1 Where Do I Start??

More information

4/10/2015. Be Prepared: How The New Changes To The FRCP Affect Information Governance. Your Presenters. Agenda

4/10/2015. Be Prepared: How The New Changes To The FRCP Affect Information Governance. Your Presenters. Agenda Be Prepared: How The New Changes To The FRCP Affect Information Governance Presented by John Isaza, Esq., FAI CEO, Information Governance Solutions, LLC Wednesday, April 15, 2015 1:00 p.m. (PDT) Your Presenters

More information

Emerging Legal Hold Practices Under the New Electronically Stored Information (ESI) Rules

Emerging Legal Hold Practices Under the New Electronically Stored Information (ESI) Rules CGOC Legal Holds Luncheon Emerging Legal Hold Practices Under the New Electronically Stored Information (ESI) Rules Thomas A. Lidbury Litigation Partner Mayer, Brown, Rowe & Maw Do I Need An ESI Discovery

More information

Article originally appeared in the Fall 2011 issue of The Professional Engineer

Article originally appeared in the Fall 2011 issue of The Professional Engineer Article originally appeared in the Fall 2011 issue of The Professional Engineer Electronic Discovery in Litigation By Douglas P. Jeremiah, P.E., Esq. Your firm is involved in litigation and you get the

More information

E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK

E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK If your company is involved in civil litigation, the Federal Rules of Civil Procedure regarding preservation and production of electronic documents

More information

Predictability in E-Discovery

Predictability in E-Discovery Predictability in E-Discovery Presented by: John G. Roman, Jr. National Manager, Practice Group Technology Services Nixon Peabody LLP Tom Barce Assistant Director of Practice Support Fulbright & Jaworski

More information

Michigan's New E-Discovery Rules Provide Ways to Reduce the Scope and Burdens of E-Discovery

Michigan's New E-Discovery Rules Provide Ways to Reduce the Scope and Burdens of E-Discovery 1 PROFESSIONALS MILLER CANFIELD LAW FIRM B. Jay Yelton III Michigan's New E-Discovery Rules Provide Ways to Reduce the Scope and Burdens of E-Discovery To a large extent Michigan's new e-discovery rules

More information

GUIDELINES FOR USE OF THE MODEL AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION

GUIDELINES FOR USE OF THE MODEL AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION GUIDELINES FOR USE OF THE MODEL AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION Experience increasingly demonstrates that discovery of electronically stored information ( ESI poses challenges

More information

Legal Arguments & Response Strategies for E-Discovery

Legal Arguments & Response Strategies for E-Discovery Legal Arguments & Response Strategies for E-Discovery The tools to craft strategic discovery requests & mitigate the risks and burdens of production. Discussion Outline Part I Strategies for Requesting

More information

What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents?

What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents? Document Retention and Destruction in Oregon What Happens When Litigation Starts? How Do You Get People Not To Generate the Bad Documents? Timothy W. Snider (503) 294-9557 twsnider@stoel.com Stoel Rives

More information

Assembly Bill No. 5 CHAPTER 5

Assembly Bill No. 5 CHAPTER 5 Assembly Bill No. 5 CHAPTER 5 An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280,

More information

LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES

LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES INSERT YOUR NAME HERE Place logo or logotype here, Otherwise delete this text box. AGENDA.. Federal Rules of Civil Procedure What is a legal hold? What are

More information

Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY

Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY 2016 CLM Annual Conference April 6-8, 2016 Orlando, FL Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY Understanding e-discovery definitions and concepts is critical to working with vendors,

More information

New E-Discovery Rules: Is Your Company Prepared?

New E-Discovery Rules: Is Your Company Prepared? November 2006 New E-Discovery Rules: Is Your Company Prepared? By Maureen O Neill, Kirby Behre and Anne Nergaard On December 1, 2006, amendments to the Federal Rules of Civil Procedure ( FRCP ) concerning

More information

Overview of E-Discovery and Depositions in U.S. IP Litigation

Overview of E-Discovery and Depositions in U.S. IP Litigation Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Overview of E-Discovery and Depositions in U.S. IP Litigation Naoki Yoshida April 19, 2013 TOPICS E-Discovery in U.S. IP Litigation Depositions in U.S.

More information

CALIFORNIAS NEW ELECTRONIC DISCOVERY ACT ASSEMBLY BILL NO. 5

CALIFORNIAS NEW ELECTRONIC DISCOVERY ACT ASSEMBLY BILL NO. 5 E-MAIL LINKS DATABASES SEARCH FIRMS MEMBER PROFILES FORUM VENDORS CALENDAR SEARCH My Dashboard My Messages (1) Firm Menu My Articles My Expert Witnesses My Links My Mediators / Arbiters My News / Updates

More information

Supreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods.

Supreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods. Supreme Court Rule 201. General Discovery Provisions (a) Discovery Methods. Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination

More information

E-Discovery in Practice: A Roadmap for Financial Institutions

E-Discovery in Practice: A Roadmap for Financial Institutions E-Discovery in Practice: A Roadmap for Financial Institutions Martha R. Mora Martha R. Mora, Esq. ARHM&F Avila Rodriguez Hernandez Mena & Ferri LLP 2525 Ponce de Leon Blvd., Suite 1225, Coral Gables, Florida

More information

4/23/2014. E-Discovery. What is ESI? Discovery. Electronically Stored Information. The downside. Discovery generally. E-Discovery

4/23/2014. E-Discovery. What is ESI? Discovery. Electronically Stored Information. The downside. Discovery generally. E-Discovery E-Discovery Emily Keimig Lori Philips 303.299.8240 404.567.4377 ekeimig@shermanhoward.com lphillips@shermanhoward.com What is ESI? Electronically Stored Information The downside Discovery Discovery generally

More information

E-Discovery: New to California 1

E-Discovery: New to California 1 E-Discovery: New to California 1 Patrick O Donnell and Martin Dean 2 Introduction The New Electronic Discovery Act The new Electronic Discovery Act, Assembly Bill 5 (Evans), has modernized California law

More information

Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age

Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age Panel Members Judge Ronald L. Buch, Moderator Panelists The Honorable Paul W. Grimm U.S. District Court for

More information

Ethics and ediscovery

Ethics and ediscovery Ethics and ediscovery John Mansfield and Devon Newman January 6, 2012 1 2013, MansfieldLaw ediscovery basics We will cover: Preservation and spoliation Searching and producing documents Supervising lawyers

More information

Electronic Discovery and Disclosure:

Electronic Discovery and Disclosure: Electronic Discovery and Disclosure: Managing & Producing Electronic Information Washington State Office of the Attorney General 1 Overview of Presentation EDD (Electronic Discovery and Disclosure) ESI

More information

E-DISCOVERY IN THE US

E-DISCOVERY IN THE US E-DISCOVERY IN THE US A PRIMER Changing legal requirements and growing volumes of electronically stored information have made the discovery process more daunting and costly than ever before. This article

More information

Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations

Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations By Elleanor H. Chin and Scott E. Warnick Reprinted with permission from The Oregon State Bar

More information

E-DISCOVERY AND RECORDS RETENTION PROGRAMS: What Healthcare Administrators Need to Know

E-DISCOVERY AND RECORDS RETENTION PROGRAMS: What Healthcare Administrators Need to Know E-DISCOVERY AND RECORDS RETENTION PROGRAMS: What Healthcare Administrators Need to Know Christopher A. Myers Holland & Knight LLP Progressive Healthcare Conferences December 19, 2007 The future ain't what

More information

B. Preservation is not limited to simply avoiding affirmative acts of destruction because day-to-day operations routinely alter or destroy evidence.

B. Preservation is not limited to simply avoiding affirmative acts of destruction because day-to-day operations routinely alter or destroy evidence. This is a sample approach to developing a sound document collection process, referenced at Section II(7)(vi) of the Guidelines on Best Practices for Litigating Cases Before the Court of Chancery. It should

More information

Strategies for Preparing for E-Discovery

Strategies for Preparing for E-Discovery Strategies for Preparing for E-Discovery The amendments to the U.S. Federal Rules of Civil Procedure regarding the discovery of electronically stored information make it imperative for organizations to

More information

2004 E-Discovery Developments: Year in Review

2004 E-Discovery Developments: Year in Review 2004 E-Discovery Developments: Year in Review Sean Foley, Esq., Legal Consultant Michele C.S. Lange, Esq., Staff Attorney, Legal Technologies January 20, 2005 Presenters Sean Foley, Esq., Legal Consultant

More information

Electronic Evidence and Discovery: The Changes in the Federal Rules. April 25, 2007 Bill Belt

Electronic Evidence and Discovery: The Changes in the Federal Rules. April 25, 2007 Bill Belt Electronic Evidence and Discovery: The Changes in the Federal Rules April 25, 2007 Bill Belt Key dates» 2000 Judge Scheindlin coins term ESI in Boston College Law Review Article.» 2000 Chair of the Advisory

More information

The Intrusive Nature of Discovery in U.S. Patent Litigation

The Intrusive Nature of Discovery in U.S. Patent Litigation The Intrusive Nature of Discovery in U.S. Patent Litigation October 16, 2014 Jeffrey R. Schaefer jschaefer@ulmer.com All patent infringement litigation in the U.S. takes place in federal courts. Cases

More information

University of Louisiana System

University of Louisiana System Policy Number: M-17 University of Louisiana System Title: RECORDS RETENTION & Effective Date: OCTOBER 10, 2012 Cancellation: None Chapter: Miscellaneous Policy and Procedures Memorandum Each institution

More information

E-Discovery Guidance for Federal Government Professionals Summer 2014

E-Discovery Guidance for Federal Government Professionals Summer 2014 E-Discovery Guidance for Federal Government Professionals Summer 2014 Allison Stanton Director, E-Discovery, FOIA, & Records Civil Division, Department of Justice Adam Bain Senior Trial Counsel Civil Division,

More information

grouped into five different subject areas relating to: 1) planning for discovery and initial disclosures; 2)

grouped into five different subject areas relating to: 1) planning for discovery and initial disclosures; 2) ESI: Federal Court An introduction to the new federal rules governing discovery of electronically stored information In September 2005, the Judicial Conference of the United States unanimously approved

More information

CORPORATE RECORD RETENTION IN AN ELECTRONIC AGE (Outline)

CORPORATE RECORD RETENTION IN AN ELECTRONIC AGE (Outline) CORPORATE RECORD RETENTION IN AN ELECTRONIC AGE (Outline) David J. Chavolla, Esq. and Gary L. Kemp, Esq. Casner & Edwards, LLP 303 Congress Street Boston, MA 02210 A. Document and Record Retention Preservation

More information

Friday 31st October, 2008.

Friday 31st October, 2008. Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules

More information

WHAT DOES E-DISCOVERY HAVE TO DO WITH RECORDS RETENTION & COMPLIANCE PROGRAMS?

WHAT DOES E-DISCOVERY HAVE TO DO WITH RECORDS RETENTION & COMPLIANCE PROGRAMS? WHAT DOES E-DISCOVERY HAVE TO DO WITH RECORDS RETENTION & COMPLIANCE PROGRAMS? - Martin J. Jaron, Jr., Partner - Suzanne Foster, Associate HOLLAND & KNIGHT LLP & - Glenn Martin, Chief Internal Audit &

More information

10 Strategies for Getting E-Discovery Under Control Jim McKeown & Rich Young

10 Strategies for Getting E-Discovery Under Control Jim McKeown & Rich Young 10 Strategies for Getting E-Discovery Under Control Jim McKeown & Rich Young 10 1 Electronic Records Have Exacerbated the Discovery Burden Employees (custodians) are typically pack rats for electronic

More information

www.salixdata.com 513-381-2679

www.salixdata.com 513-381-2679 Electronic Discovery Presented by: Jonathan Adams www.salixdata.com 513-381-2679 Our Goal Explain E-Discovery in layman s terms Equip you to be able to add value to your organization SALIX is the region

More information

How to Avoid The Biggest Electronic Evidence Mistakes. Ken Jones Senior Technology Architect Pileum Corporation

How to Avoid The Biggest Electronic Evidence Mistakes. Ken Jones Senior Technology Architect Pileum Corporation How to Avoid The Biggest Electronic Evidence Mistakes Ken Jones Senior Technology Architect Pileum Corporation Why is Proper Handling of Electronic Data Important? Most of the evidence in your case isn

More information

Best Practices for Enforcing Legal Holds on E-Mail and Electronic Data through Proactive Archiving Sponsored by Symantec

Best Practices for Enforcing Legal Holds on E-Mail and Electronic Data through Proactive Archiving Sponsored by Symantec WHITE PAPER: Best Practices for legal holds Confidence in a connected world. Best Practices for Enforcing Legal Holds on E-Mail and Electronic Data through Proactive Archiving Sponsored by Symantec Jennifer

More information

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel In-House Panel Sponsored by: THE GIBBONS INSTITUTE OF LAW, SCIENCE & TECHNOLOGY Seton Hall University School

More information

ANALYSIS OF ORIGINAL BILL

ANALYSIS OF ORIGINAL BILL Franchise Tax Board ANALYSIS OF ORIGINAL BILL Author: Evans Analyst: Deborah Barrett Bill Number: AB 5 See Legislative Related Bills: History Telephone: 845-4301 Introduced Date: December 1, 2008 Attorney:

More information

The E-Discovery Process

The E-Discovery Process POOLING PROVISIONS The E-Discovery Process A publication of Nevada Public Agency Insurance Pool The e- discovery process the search of electronic records for use as legal evidence can cost thousands of

More information

Best Practices Series Document Retention and Best Practices

Best Practices Series Document Retention and Best Practices Best Practices Series Document Retention and Best Practices 1. Sarbanes Oxley Act provides guidance to businesses Sections 802 and 1102 of SOX make it a crime to alter, cover up, falsify, or destroy any

More information

REED COLLEGE. ediscovery GUIDELINES FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS

REED COLLEGE. ediscovery GUIDELINES FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS REED COLLEGE ediscovery GUIDELINES FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS TABLE OF CONTENTS A. INTRODUCTION... 1 B. THE LANDSCAPE OF ELECTRONIC RECORDS SYSTEMS... 1 1. Email Infrastructure...

More information

Outlaw v. Willow Oral Argument Motions for Sanctions

Outlaw v. Willow Oral Argument Motions for Sanctions William Mitchell E-Discovery Symposium Outlaw v. Willow Oral Argument Motions for Sanctions Mary T. Novacheck, Esq. Partner Bowman and Brooke LLP Outlaw's Motion: Cost Shift Vendor Fees to Willow Prior

More information

E-Discovery for Paralegals: Definition, Application and FRCP Changes. April 27, 2007 IPE Seminar

E-Discovery for Paralegals: Definition, Application and FRCP Changes. April 27, 2007 IPE Seminar E-Discovery for Paralegals: Definition, Application and FRCP Changes April 27, 2007 IPE Seminar Initial Disclosures ESI Electronically Stored Information FRCP 26(a)(1)(B) all ESI must be disclosed initially

More information

The Top Ten List (and one) of Changes to the Federal Rules

The Top Ten List (and one) of Changes to the Federal Rules The Top Ten List (and one) of Changes to the Federal Rules The List (1) The rules now refer to electronically stored information, which is on equal footing with paper. Rules 26(a)(1), 26(b)(2), 26(b)(5)(B),

More information

Legal Developments in ediscovery: Implications for Security Management

Legal Developments in ediscovery: Implications for Security Management Legal Developments in ediscovery: Implications for Security Management Richard S. Swart and Robert F. Erbacher Utah State University richard.swart@usu.edu Robert.Erbacher@usu.edu Abstract This paper defines

More information

Handling Costly E-Discovery Demands in Smaller Cases

Handling Costly E-Discovery Demands in Smaller Cases Chapter 9 Handling Costly E-Discovery Demands in Smaller Cases Neal Walters Neal Walters is of counsel with the firm of Ballard Spahr Andrews & Ingersoll, LLP in its Voorhees, New Jersey office. Mr. Walters

More information

NLRB: NxGen Case Management, E-Government and E-Discovery

NLRB: NxGen Case Management, E-Government and E-Discovery NLRB: NxGen Case Management, By: James G. Paulsen, Assistant General Counsel, OGC and Bryan Burnett, Chief Information Officer, OCIO, National Labor Relations Board A. Next Generation (NxGen) Case Management

More information

E-Discovery in Employment Litigation: Making Practical, Yet Defensible Decisions

E-Discovery in Employment Litigation: Making Practical, Yet Defensible Decisions E-Discovery in Employment Litigation: Making Practical, Yet Defensible Decisions 11 E-Discovery in Employment Litigation: Making Practical, Yet Defensible Decisions Introduction Much has been said about

More information

Rule 30(b)(6) Depositions in Electronic Discovery. Discovering What There Is to Discover

Rule 30(b)(6) Depositions in Electronic Discovery. Discovering What There Is to Discover : Discovering What There Is to Discover One of the challenges in electronic discovery is identifying the various sources of electronically stored information (ESI) that could potentially be relevant to

More information

Five Rules for Discovery of Electronically Stored Information

Five Rules for Discovery of Electronically Stored Information Five Rules for Discovery of Electronically Stored Information Eastern North Carolina Inn of Court Spring Meeting New Bern, NC May 17, 2012 M ARK SCRUGGS C LAIMS COUNSEL L AWYERS MUTUAL 5020 Weston Parkway,

More information

FEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step.

FEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step. A BNA, INC. DIGITAL DISCOVERY & E-EVIDENCE! VOL. 7, NO. 11 232-235 REPORT NOVEMBER 1, 2007 Reproduced with permission from Digital Discovery & e-evidence, Vol. 7, No. 11, 11/01/2007, pp. 232-235. Copyright

More information

ESI Preservation in Employment Litigation: Counsel s Guide to New FRCP ediscovery Amendments

ESI Preservation in Employment Litigation: Counsel s Guide to New FRCP ediscovery Amendments ESI Preservation in Employment Litigation: Counsel s Guide to New FRCP ediscovery Amendments FEATURED FACULTY: Patricia E. Antezana, Counsel, Reed Smith LLP PAntezana@ReedSmith.com Steven C. Bennett, Partner,

More information

Navigating Information Governance and ediscovery

Navigating Information Governance and ediscovery Navigating Information Governance and ediscovery Implementing Processes & Technology to Reduce Downstream ediscovery Cost and Risk Shannon Smith General Counsel, Globanet March 11 12, 2013 Agenda 1 Overview

More information

Preservation and Production of Electronic Records

Preservation and Production of Electronic Records Policy No: 3008 Title of Policy: Preservation and Production of Electronic Records Applies to (check all that apply): Faculty Staff Students Division/Department College _X Topic/Issue: This policy enforces

More information

E-Discovery Best Practices

E-Discovery Best Practices José Ramón González-Magaz jrgonzalez@steptoe.com E-Discovery Best Practices www.steptoe.com November 10, 2010 Importance of E-Discovery 92% of all data is ESI. Source: Berkeley Study. 97 billion e-mails

More information

A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE

A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE Effective February 1, 2010, the Alabama Rules of Civil Procedure were amended to provide for and accommodate

More information

Records and Information Management and Retention

Records and Information Management and Retention Records and Information Management and Retention Association of Corporate Counsel Nonprofit Organizations Committee Legal Quick Hit March 13, 2012 3 pm ET W. Warren Hamel Venable LLP 750 E. Pratt St. Baltimore,

More information

E-DISCOVERY IN FEDERAL COURT: SIX CHANGES YOU SHOULD MAKE TO YOUR PRACTICE IN THE DISCOVERY PHASE OF THE CASE By Kary Pratt

E-DISCOVERY IN FEDERAL COURT: SIX CHANGES YOU SHOULD MAKE TO YOUR PRACTICE IN THE DISCOVERY PHASE OF THE CASE By Kary Pratt E-DISCOVERY IN FEDERAL COURT: SIX CHANGES YOU SHOULD MAKE TO YOUR PRACTICE IN THE DISCOVERY PHASE OF THE CASE By Kary Pratt 1. YOU MUST CHANGE THE WAY YOU REQUEST DOCUMENTS - FRCP 34(a) explicitly recognizes

More information

Electronic Discovery How can I be prepared? September 2010

Electronic Discovery How can I be prepared? September 2010 Electronic Discovery How can I be prepared? September 2010 Presented by Brian Wilkinson, Director of ediscovery & Computer Forensics brian.wilkinson@us.pwc.com 410-659-3473 Table of Contents Page 1 Electronic

More information

Archiving and The Federal Rules of Civil Procedure: Understanding the Issues

Archiving and The Federal Rules of Civil Procedure: Understanding the Issues Archiving and The Federal Rules of Civil Procedure: Understanding the Issues An ArcMail Technology Research Paper ArcMail Technology, Inc. 401 Edwards Street, Suite 1620 Shreveport, Louisiana 71101 www.arcmailtech.com

More information

Corporate Governance - The Importance of a Compliant Record Retention Program. by Christopher N. Weiss 1

Corporate Governance - The Importance of a Compliant Record Retention Program. by Christopher N. Weiss 1 Corporate Governance - The Importance of a Compliant Record Retention Program by Christopher N. Weiss 1 A. Rationale for a Sound Record Retention Policy Record retention is crucial to disciplined corporate

More information

PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS

PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS PROCEDURE 4040P Community Relations PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS Electronic Discovery Committee To help meet its obligations, the WSD uses an Electronic Discovery Committee, made up

More information

E-Discovery in Michigan. Presented by Angela Boufford

E-Discovery in Michigan. Presented by Angela Boufford E-Discovery in Michigan ESI Presented by Angela Boufford DISCLAIMER: This is by no means a comprehensive examination of E-Discovery issues. You will not be an E-Discovery expert after this presentation.

More information

COURT OF QUEEN S BENCH OF MANITOBA PRACTICE DIRECTION GUIDELINES REGARDING DISCOVERY OF ELECTRONIC DOCUMENTS

COURT OF QUEEN S BENCH OF MANITOBA PRACTICE DIRECTION GUIDELINES REGARDING DISCOVERY OF ELECTRONIC DOCUMENTS COURT OF QUEEN S BENCH OF MANITOBA PRACTICE DIRECTION GUIDELINES REGARDING DISCOVERY OF ELECTRONIC DOCUMENTS Introduction While electronic documents are included in the definition of document contained

More information

CMA Shipping 2015. Ethics and E-Discovery in Shipping Disputes

CMA Shipping 2015. Ethics and E-Discovery in Shipping Disputes CMA Shipping 2015 Ethics and E-Discovery in Shipping Disputes March 25, 2015 Vincent J. Foley, Holland & Knight LLP (212) 513-3357 vincent.foley@hklaw.com CMA Shipping 2015 Ethics and E-Discovery for Shipping

More information

Managing Discovery Of Electronically Stored Information Under Proposed Amendments To Federal Rules Of Civil Procedure

Managing Discovery Of Electronically Stored Information Under Proposed Amendments To Federal Rules Of Civil Procedure MEALEY S TM LITIGATION REPORT Discovery Managing Discovery Of Electronically Stored Information Under Proposed Amendments To Federal Rules Of Civil Procedure by Michael C. Lynch and Lystra Batchoo Kelley

More information

From Archiving to Legal Holds: Comprehensive Information Management

From Archiving to Legal Holds: Comprehensive Information Management April 21 st, 2010 From Archiving to Legal Holds: Comprehensive Information Management John Jablonski, Esq., Partner, Goldberg Segalla, LLP Wayne Wong, Managing Consultant, Kroll Ontrack 2010 Kroll Ontrack

More information

Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments

Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments Electronic Discovery - What s All The Talk About? November 2004 1313 North Market

More information

E-Discovery Quagmires An Ounce of Prevention is Worth a Pound of Cure Rebecca Herold, CISSP, CISA, CISM, FLMI Final Draft for February 2007 CSI Alert

E-Discovery Quagmires An Ounce of Prevention is Worth a Pound of Cure Rebecca Herold, CISSP, CISA, CISM, FLMI Final Draft for February 2007 CSI Alert E-Discovery Quagmires An Ounce of Prevention is Worth a Pound of Cure Rebecca Herold, CISSP, CISA, CISM, FLMI Final Draft for February 2007 CSI Alert While updating the two-day seminar Chris Grillo and

More information