e-discovery Committee

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1 e-discovery ommittee Wednesday, January 24, 2007 Meeting Minutes e-discovery Meeting Wednesday, January 24, 2007, 3:30 pm PST Marriot Newport Beach Hotel, Newport Beach, A ATTENDEES HARLES R. MORGAN HAIR Executive Vice President and General ounsel On Site E-Discovery PR Staff: 575 Lexington Avenue, 21 st Floor New York, NY Fax: KATHY BRYAN President & EO [email protected] HELENA TAVARES ERIKSON Senior Vice-President, ommittees, Research & Education [email protected] On-Site E-Discovery Mark Hawn Hal Brooks Jeri Head Brian Meegan Aaron Moore Rob Robinson hristine Hoffman NABIL L. ABU-ASSAL hristensen, Glaser, Fink, Jacobs, Weil & Shapiro, LLP THOMAS I. BARNETT Sullivan & romwell LLP JAMES BARRY hief ounsel International Paper YNTHIA BATEMAN Senior Litigation Paralegal & Legal Hold Manager Georgia-Pacific orp. SHARON BRADY Managing Senior IP ounsel Dow orning orporation LAUDIA BRAUND Enterprise Information Security-Lead Analyst Georgia-Pacific orp. SOTT ARLSON Seyfarth Shaw LLP JAMES ARR USD - Toledo

kbryan@cpradr.org HELENA TAVARES ERIKSON Senior Vice-President, ommittees, Research & Education herickson@cpradr.

2 ADAM OHEN FTI onsulting BOB RAIG Associate General ounsel Litigation Waste Management PAUL EHLENBAH Vice President & Assistant General ounsel Boeing ompany PAUL FABIEN Office of the General ounsel Ford Motor ompany BRIAN FOSTER Discovery onsultant BP LARRY GINGERIH Project Manager IO Group LONNIE HOBBS Legal Key Energy JOHN HOOD ounsel Key Energy JASON HUFF Principal Technical Analyst El Paso Energy STEVE INMAN Staff ounsel II, Legal Affairs and Litigation Gemstar TV Guide International, Inc. AROL A. JABLONSKI Manager of Litigation LAURA KIBBE Pfizer Inc. RIK K. LARSON Nixon Peabody LLP AMY JANE LONGO O'Melveny & Myers LLP ANDREW H. MARKS rowell & Moring LLP ANTHONY MOHR Los Angeles Superior ourt HRIS O'NEILL IBM orporation JANE REGAN Office of the General ounsel Ford Motor ompany EDWARD H. RIPPEY ovington & Burling LLP ANNE M. ROGERS PMP, ISSP, E Director, Information Safeguards Waste Management, Inc. BETH A. ROSE Managing ounsel--discovery Ford Motor ompany Office of the General ounsel JANE RUSHTON VP, orporate ounsel Prudential Financial TOMASZ J. SIKORA Senior ounsel El Paso orporation TEFFT W. SMITH Kirkland & Ellis LLP RODERIK M. THOMPSON Farella, Braun + Martel LLP STEVEN M. WEINBERG Greenberg Traurig, LLP BETH WEINNMAN Senior Attorney Marathon Oil

Energy STEVE INMAN Staff ounsel II, Legal Affairs and Litigation Gemstar TV Guide International, Inc. AROL A. JABLONSKI Manager of Litigation LAURA KIBBE Pfizer Inc. RIK K.

3 ANDREW WISTRIH USD-LA JAMES M. WRIGHT, P.E. E-Discovery & Litigation Support Halliburton MARK YAANO Wright, Robinson, Osthimer & Tatum STEPHEN YOUNG Ernst & Young LLP Via phone DEBRA RAE BERNARD Mayer, Brown, Rowe & Maw LLP MARY BETH ANTRELL Associate General ounsel Amgen Inc. DAVID A. REIF Mcarter & English, LLP KARA M. RII Attorney Fireman's Fund Insurance ompany IRENE. WARSHAUER Of ounsel Fried & Epstein LLP JESSIA WATTS Senior Litigation ounsel KRISTI WHALEN Assistant General ounsel E. & J. Gallo Winery RIHARD J. WOLF Managing Lexakos onsulting LL JOLENE YEE Assistant General ounsel E. & J. Gallo Winery ROBERT F. OPPLE opple & Associates, P.. ANDY OSGROVE Redgrave Daley Ragan & Wagner LLP SEAN M. FOLEY Vice President - Legal Westec Interactive MARISSA MARINELLI Holland & Knight LLP ANDREW H. MARKS rowell & Moring LLP JONATHAN REDGRAVE Redgrave Daley Ragan & Wagner LLP

4 PR Senior Vice President, Helena Tavares Erickson convened the meeting and introduced ommittee hair, harles Morgan, Executive Vice President and General ounsel of On-Site E- Discovery. Ms. Erickson also thanked Reception Sponsors: Nixon Peabody LLP, Farella, Braun & Martel LLP, and Pillsbury Winthrop Shaw Pittman LLP and Dinner Sponsors: O'Melveny & Myers LLP, Kirkland & Ellis LLP and ovington & Burling LLP for their generosity to PR. Mr. Morgan described the orporate E-Discovery meetings that had taken place over the prior two days and welcomed the judicial participants. PR President & EO, Kathy Bryan described PR and the ommittee s meetings to date, noting that its purpose was to see what role, if any, PR should play with respect to e-discovery. Ms. Bryan described the suggestions that had been made to date: develop a pool of neutrals who could be appointed as Special Masters, courtappointed as experts under FRE 706, or available for meet and confer conferences specific training for PR neutrals regarding e-discovery develop a list of special mediators to help PR arbitrators with e-discovery (amend PR Rules to so provide Ms. Bryan then opened discussion on the issue. Several attendees confirmed a need for mediators to help parties sort through e-discovery disputes. This was seen as especially important where judges were not able or not willing to address these disputes with the parties. A concern was raised, however, about the ability of a mediator to achieve agreement when discovery costs are so frontloaded. A mediator attendee noted that it is precisely where there are such risks and uncertainty that mediation is most successful. Several of the judicial attendees stated that they would welcome the ability to refer matters/parties to a cadre of neutrals that might be able to help them resolve e-discovery disputes. At least one judge cautioned that such neutrals should not be referred to as Special Masters due to issues that have developed in the case law when neutrals are so denominated. Several corporate attendees focused on the need for mediators or some sort of neutral in matters where discovery is one sided e.g. employment disputes. Several of the judicial attendees noted that in such matters they are able and willing to order discovery from both sides but cautioned that such matters are precisely the types of cases in which they will order discovery given that it is in as it was once in conversations that relevant information was found. When the question of instant messaging was brought up, one judicial attendee noted that if these were not routinely kept, there was no issue of spoliation. Another noted that perhaps once on notice of a matter, it might be wise to keep such messages. One judicial attendee noted that Scheindlin has often questioned what the big deal is assuming that companies have long ago destroyed ancient back up tapes. Numerous attendees stated that with large companies, there is never a litigation free moment and therefore no opportunity to destroy old tapes the content of which is presently unknown without an expensive indexing project that few appeared willing to invest in. At least one judge recommended that perhaps indexing was not a bad idea as it would allow a litigant when faced with a judicial cf. to

ovington & Burling LLP for their generosity to PR. Mr. Morgan described the orporate E-Discovery meetings that had taken place over the prior two days and welcomed the judicial participants.

5 actually be proactive and not look unwilling to move forward an attitude that of the judicial attendees noted was not in the litigants interests. Some attendees confirmed a need for existing PR arbitrators to be trained on e-discovery. Others voiced opinions that parties did not wish arbitrations to devolve into discovery free-foralls and that PR should issue guidelines or rules for its arbitrators with respect to e-discovery. Ms. Erickson noted that a subcommittee of PR s Arbitration ommittee was already working on such guidelines. Anyone interested in working on this subcommittee, chaired by Profs. Tom Stipanowich of Pepperdine and Ben Sheppard of University of Houston, should [email protected]. The attendees also discussed whether PR could have a role in educating judges about e- discovery. Several of the judges indicated that they believed that because they did not get many of these cases regularly, there was a need for greater education. It was suggested that PR could partner with the FJ, the alifornia Office of ourt Administration and other independent groups such as the Brookings Institute. Ms. Bryan closed the meeting by noting that PR would circulate to all ommittee members suggestions for going forward and once again thanking all sponsors of the Reception and Dinner.

Others voiced opinions that parties did not wish arbitrations to devolve into discovery free-foralls and that PR should issue guidelines or rules for its arbitrators with respect to e-discovery. Ms.

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