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

Save this PDF as:
 WORD  PNG  TXT  JPG

Size: px
Start display at page:

Download "ACADEMIC AFFAIRS COUNCIL ******************************************************************************"

Transcription

1 ACADEMIC AFFAIRS COUNCIL AGENDA ITEM: 8.D DATE: March 15, 2007 ****************************************************************************** SUBJECT: Electronic Records Discovery Electronic records management is developing into one of the more complex and more convoluted legal issues facing colleges and universities. The attached article from a recent edition of the Chronicle provides some perspective. In addition to the requirements to maintain records, it should be recognized that the use of electronic media of communication to develop preliminary ideas gives them a permanence of expression that is much greater than the written or spoken word. Dr. Shekleton will review this issue with the Council. ****************************************************************************** RECOMMENDED ACTION Discussion.

2 The New Legal Advice: Don't Press 'Delete' By DOUGLAS F. SEAVER As much as 90 percent of all documents and correspondence are created and maintained in electronic formats, according to information experts. So it is not surprising that the focus of many lawsuits is shifting to electronically stored information: how to preserve it, how to search vast quantities of it for relevant evidence, and how to produce it in discovery. Amendments to federal rules involving civil procedures that went into effect in December will require organizations involved in litigation, including higher-education institutions, to provide much more electronic information to their opponents in court. The rules formally recognize that such information is discoverable, and that, at the very beginning of a lawsuit, the two sides will have to meet and discuss what electronic data they have that might serve as evidence, as well as the protocols for producing it. The sheer volume and dynamic nature of electronically stored information make the discovery process far more complicated than with traditional hard-copy documents. But failure to appropriately preserve, protect, and produce such information that is relevant to litigation can be disastrous, as two recent legal cases demonstrate. In Zubulake v. UBS Warburg LLC, a woman was hired for a position on a sales desk and told that she would be considered for the desk manager's position if it became vacant. When the position opened and she was, in fact, not considered, she brought suit. After two years of discovery, the judge found that the company's employees had intentionally deleted messages, lost a number of backup tapes, and failed to produce files as requested. As a sanction, she issued an "adverse inference" instruction to the jury, in essence telling them that they could assume that any documents not produced would have been harmful to the company's case. The jury ultimately awarded the woman $29.3-million in damages. In Coleman Holdings Inc. v. Morgan Stanley & Co., Coleman Holdings sued the investment bank Morgan Stanley for alleged conspiracy and fraudulent representation of Sunbeam Corporation, a Morgan Stanley client for which the plaintiff had sold its interest in Coleman Company for cash and stock. Although it hired a large, wellrespected law firm, Morgan Stanley failed to meet its obligations for electronic discovery of relevant messages and documents. It produced more than 1,300 pages of e- mail messages, for example, but failed to reveal in a timely fashion the existence of 1,423 backup tapes. As a result, that court, too, issued an "adverse inference" instruction, indicating that Morgan Stanley would have to bear the burden of proving that it lacked knowledge of the fraud and had not aided or conspired with the client. The jury found in favor of the plaintiff and awarded damages in the amount of $1.6-billion. Morgan Stanley also had to pay the U.S. Securities and Exchange Commission $15-million in fines for failure to comply with discovery requirements in a related commission investigation.

3 Such cases demonstrate that the courts have broad discretion in imposing sanctions on institutions that fail to meet requirements involving electronically stored information. Colleges must take those sanctions seriously. In at least three other recent cases, courts have dismissed claims for job discrimination and wrongful discharge in which plaintiffs have destroyed key evidence stored on their computers. Courts historically have been reluctant to dismiss such claims, on the grounds that plaintiffs deserve to have "their day in court." If judges are willing to dismiss plaintiffs' claims for e-discovery abuse, they will certainly be willing to enforce the rules against colleges. Thus, administrators must become knowledgeable in the new methodologies, protocols, and strategies regarding e-discovery. They should: Establish a litigation team to handle e-discovery issues. Team members might include a representative of the IT department, legal counsel, risk-management experts, human-resources personnel, and any outside vendors who might be used in the discovery process. Preserve all relevant evidence. While Zubulake was a decision of the U.S. District Court for the Southern District of New York, many state and federal courts have adopted the case's rulings. According to those rulings, when an organization reasonably anticipates that litigation will occur, it must suspend its routine policy for retaining and destroying documents and put in place a "litigation hold" to make sure that certain documents are preserved. Moreover, as Magistrate Judge Andrew J. Peck, of that same federal district court, has said, the suspension must be "immediate." A letter describing the litigation hold must go to all personnel who might have relevant hard-copy documentation or electronically stored information. And at least one court has held that alerting employees to the litigation hold in an message is not sufficient notice. This step is especially important because plaintiffs' lawyers, having become sophisticated in their knowledge of e-discovery-abuse sanctions, now regularly issue litigation-hold-demand letters to defendants even before a lawsuit begins. Tactically they are attempting to create a situation in which they can claim discovery abuses and seek an "adverse inference" instruction at the time of trial. Be inclusive in identifying information that should be captured. An institution has a duty to try to anticipate what information the opposing party will need for its case and to preserve that information, as well as information that is helpful to its own case. The scope of information will depend on the type of claims that are at issue. A simple contract claim may involve little more than the contract and correspondence surrounding its negotiations and application. In a class-action Equal Pay Act claim, however, the universe of relevant information could be immense. Colleges should not underestimate the amount of material that may need to be preserved and searched for relevant evidence. They should be prepared to gather information maintained on network servers; desktop hard drives; removable storage media like tapes, disks, and cards; PDA's; flash drives; laptop computers; voice mail; and home computers if used for the business of the institution.

4 Outsource information-gathering, if necessary. Literally millions of messages and other electronic documents may contain evidence. In penalizing Morgan Stanley, Judge Elizabeth T. Maass noted that the company "gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time, and would not attain that capacity for months." Consulting outside vendors in advance will inform college administrators not only of the efforts they may need to make in the discovery process but also of the potential cost of complying with discovery requests. Vendors can help institutions create effective and cost-efficient strategies for collecting, analyzing, and processing the data. Train other staff members about e-discovery. Colleges should make IT staff members aware of the institution's obligations concerning e-discovery. Likewise, IT staff members can educate members of the litigation team on the institution's hardware and software; policies for retaining and destroying information; location of backup tapes; and the processes, costs, and staffing required for substantial e-discovery demands. Colleges should also consider preparing an IT staff member to testify at depositions and accompany institutional lawyers to conferences to discuss e-discovery issues with opposing counsel. Support-staff members will also need training about how to search databases for information in response to discovery requests, maintain a decision log throughout the project, and document the steps taken to protect, preserve, and produce electronically stored information. Colleges should also inform all staff and faculty members generally on their obligations to comply with discovery requests in litigation, their responsibility to preserve relevant information that exists either in hard copy or electronically, and the potential serious consequences to the institution, and possibly to individuals, if relevant evidence is destroyed or lost. Adopt a clear e-discovery computer-use policy. That policy should establish the institution's right to inspect and retain information stored on its equipment and should dispel any expectations of privacy on the part of faculty and staff members. If professors and administrators regularly work remotely from home, the policy should also describe the college's right, when needed, to inspect their home computers for electronically stored information related to the work of the institution. Preserve attorney-client privileges. To help establish claims that certain information is legally privileged, each college should adopt a written policy that addresses attorneyclient communications. Over the long haul, the general counsel's office may want to move its messages and documents to a separate server or files, making it easier to isolate privileged communications. The regular use of "privileged" banners on correspondence or in the subject line of messages will assist screening of privileged documents when key-word searches are used to obtain relevant information once discovery begins.

5 Establish an e-discovery plan. Such a plan would include protocols and processes for maintaining an accurate inventory of data-processing and data-storage devices, developing a litigation-hold letter, identifying the key people involved in litigation, creating electronic copies of the information maintained on storage devices when the litigation hold is put in place, and assigning key personnel to reissue litigation holds during discovery and to monitor discovery. The plan should also deal with the electronic format to be followed in producing documents, the litigation-support software to be used, and the methods for estimating the cost of compliance with e-discovery demands. An advisory committee that commented on the amended federal rules for civil procedures did recognize the need for parties to balance the need to obtain relevant information with the burdens of e-discovery: "The parties can develop a discovery plan that takes into account the capabilities of their computer systems." One of the amended rules creates a distinction between "accessible" electronically stored information and that which is "not reasonably accessible," and it indicates that a party need not provide e-discovery from sources that it identifies as not reasonably accessible because of "undue burden or cost." While it is uncertain what will be included in that category, it will very likely include backup tapes that contain disaster-recovery data, legacy data from obsolete systems, and deleted data. When a plaintiff asks a college for electronically stored information, the institution will have to identify by category or type the sources that it has decided are too difficult to obtain. The court will then determine whether the burden of producing the information is outweighed by the need for that information. What is clear is that all legal counsel involved in litigation will now have to become familiar with their clients' computer systems and programs, policies for document retention and destruction, computer processes for harvesting relevant data from vast stores of electronically stored information, and ways to negotiate the means and methods of producing electronically stored information with opposing counsel. As Magistrate Judge Peck said at a recent American Bar Association seminar, "Lawyers can no longer afford to be computer-illiterate." Indeed, his admonition applies to all of the people who work on the campus. They should understand that their electronic documents may become evidence in litigation, and that, as a result, they should be judicious in the information that they create, receive, retain, or send. They must also be ready to preserve and protect electronically stored information once they learn that litigation against the institution is likely or has begun. Douglas F. Seaver is a partner at Hinkley, Allen, and Snyder, a law firm in Boston. Section: The Chronicle Review Volume 53, Issue 24, Page B12

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

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

UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York 10016 www.devoredemarco.com UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE 1 What is ESI? Information that exists in a medium that can only be read through the use of computers Examples E-mail Word Documents Databases Spreadsheets Multimedia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Electronic Data Retention and Preservation Policy 1

Electronic Data Retention and Preservation Policy 1 1 Purpose and Scope The purpose of this policy is to: Identify the types of College-related electronic information, including the location of the information; Identify what departments or individuals are

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

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

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

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

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

Acknowledgments Introduction: Welcome to the Labyrinth. CHAPTER 1 Gathering the Evidence 1. CHAPTER 2 Third-Party Experts 25

Acknowledgments Introduction: Welcome to the Labyrinth. CHAPTER 1 Gathering the Evidence 1. CHAPTER 2 Third-Party Experts 25 Acknowledgments Introduction: Welcome to the Labyrinth xi xiii CHAPTER 1 Gathering the Evidence 1 Form 1.1: General Preliminary Electronic Evidence Questions for Your Client 3 Form 1.2: Checklist to Define

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

Minimizing ediscovery risks. What organizations need to know in today s litigious and digital world.

Minimizing ediscovery risks. What organizations need to know in today s litigious and digital world. What organizations need to know in today s litigious and digital world. The main objective for a corporation s law department is to mitigate risk throughout the company, while keeping costs under control.

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

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

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

Ethics in Technology and ediscovery Stuff You Know, But Aren t Thinking About

Ethics in Technology and ediscovery Stuff You Know, But Aren t Thinking About Ethics in Technology and ediscovery Stuff You Know, But Aren t Thinking About Kelly H Twigger, Esq. Oil and Gas Symposium Arkansas Law Review October 16-17, 2014 Overview In the last two decades, business

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

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

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

How to Win the Battle Over Electronic Discovery in Employment Cases. By Philip L. Gordon, Esq.

How to Win the Battle Over Electronic Discovery in Employment Cases. By Philip L. Gordon, Esq. How to Win the Battle Over Electronic Discovery in Employment Cases By Philip L. Gordon, Esq. IMPORTANT NOTICE This publication is not a do-it-yourself guide to resolving employment disputes or handling

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

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 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

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

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

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

Cyber Tech & E-Commerce

Cyber Tech & E-Commerce MEALEY S LITIGATION REPORT Cyber Tech & E-Commerce The Duty To Preserve Data Stored Temporarily In Ram: Is The Sky Really Falling? by J. Alexander Lawrence Morrison & Foerster New York, New York A commentary

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

THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE

THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE White Paper Series February 2006 THE INCREASING RISK OF SANCTIONS FOR ORDINARY NEGLIGENCE IN E-DISCOVERY COMPLIANCE The law is continuously carving out and redefining the boundaries of electronic document

More information

NEW RULES FOR ELECTRONICALLY STORED INFORMATION

NEW RULES FOR ELECTRONICALLY STORED INFORMATION April 3, 2007 NEW RULES FOR ELECTRONICALLY STORED INFORMATION SUMMARY: On December 1, 2006, the federal courts enacted new rules to address electronically stored information ( ESI ) such as emails, reports,

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

ediscovery Update February 2010

ediscovery Update February 2010 ediscovery Update February 2010 VEDDERPRICE ediscovery Update Chicago New York Washington, D.C. February 2010 Zubulake Revisited Preservation Obligations and Sanctions Standards Clarifi ed In Pension Committee

More information

E-Discovery Toolkit for Educational Institutions

E-Discovery Toolkit for Educational Institutions E-Discovery Toolkit for Educational Institutions The e-discovery process the search of electronic records for use as legal evidence can cost educational institutions thousands of dollars and hours. The

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

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

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

Record Retention, ediscovery, Spoliation: Issues for In-House Counsel

Record Retention, ediscovery, Spoliation: Issues for In-House Counsel Record Retention, ediscovery, Spoliation: Issues for In-House Counsel CCCA Webinar April 1, 2015 Presenters: Gavin Tighe, Partner (Certified Specialist in Litigation) Stephen Thiele, Partner, Director

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

Best Practices in Electronic Record Retention

Best Practices in Electronic Record Retention I. Some Key Considerations In Whether To Engage An E-Discovery Vendor (Or Vendors) A. It is difficult to decide whether to retain a vendor if you don t know what your organization can do and at what cost.

More information

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS DIVISION. v. Case No. [MODEL] ORDER REGARDING E-DISCOVERY IN PATENT CASES

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS DIVISION. v. Case No. [MODEL] ORDER REGARDING E-DISCOVERY IN PATENT CASES [NOTE: This is a redline/strikeout version of Appendix P, the Model Order Regarding E- Discovery in Patent Cases. This version shows changes that were made to Federal Circuit Chief Judge Randall Rader

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

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

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

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

DOCUMENT RETENTION STRATEGIES FOR HEALTHCARE ORGANIZATIONS

DOCUMENT RETENTION STRATEGIES FOR HEALTHCARE ORGANIZATIONS Overview. DOCUMENT RETENTION STRATEGIES FOR HEALTHCARE ORGANIZATIONS A comprehensive and consistently applied document retention policy is necessary to reduce the risk of being charged with spoliation

More information

E-Discovery: A Common Sense Approach. In order to know how to handle and address ESI issues, the preliminary and

E-Discovery: A Common Sense Approach. In order to know how to handle and address ESI issues, the preliminary and Jay E. Heidrick Polsinelli jheidrick@polsinelli.com (913) 234-7506 E-Discovery: A Common Sense Approach In order to know how to handle and address ESI issues, the preliminary and obvious question must

More information

Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES

Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES by Sharon D. Nelson, Bruce A. Olson and John W. Simek American Bar Association 2006 745 pp. Reviewed by William

More information

Costly electronic discovery `part of potentially every case in the 21st Century'

Costly electronic discovery `part of potentially every case in the 21st Century' E-mails become trial for courts Costly electronic discovery `part of potentially every case in the 21st Century' By Ameet Sachdev Tribune staff reporter Advertisement April 10, 2005 A high-stakes fraud

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

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

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

E-discovery: Federal Rules of Civil Procedure and their Implications for Public Sector Corrections Departments

E-discovery: Federal Rules of Civil Procedure and their Implications for Public Sector Corrections Departments E-discovery: Federal Rules of Civil Procedure and their Implications for Public Sector Corrections Departments Andres De Aguero, Senior Lead, Deloitte Consulting LLP David F. Axelrod, Director, Deloitte

More information

An Examination of Litigation Holds and the Preservation of Electronic Documents in the Context of Zubulake

An Examination of Litigation Holds and the Preservation of Electronic Documents in the Context of Zubulake November 2004 An Examination of Litigation Holds and the Preservation of Electronic Documents in the Context of Zubulake Documents and other potentially relevant evidence are subject to preservation when

More information

Amendments to the Rules to Civil Procedure: Yours to E-Discover. Prepared by Christopher M. Bartlett Cassels Brock & Blackwell LLP

Amendments to the Rules to Civil Procedure: Yours to E-Discover. Prepared by Christopher M. Bartlett Cassels Brock & Blackwell LLP Amendments to the Rules to Civil Procedure: Yours to E-Discover Prepared by Christopher M. Bartlett Cassels Brock & Blackwell LLP September 25, 2009 Amendments to the Rules of Civil Procedure: Yours to

More information

U.S. Litigation (Strategic Preparations and Statistics)

U.S. Litigation (Strategic Preparations and Statistics) U.S. Litigation (Strategic Preparations and Statistics) Thomas K. Scherer Federal and State Court, ITC actions Considerations of speed and remedies involved Eastern District of Texas Considerations of

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 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

Solving Key Management Problems in Lotus Notes/Domino Environments

Solving Key Management Problems in Lotus Notes/Domino Environments Solving Key Management Problems in Lotus Notes/Domino Environments An Osterman Research White Paper sponsored by Published April 2007 sponsored by Osterman Research, Inc. P.O. Box 1058 Black Diamond, Washington

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

Discovery Ethics Course Plan

Discovery Ethics Course Plan The Ethics of Pre-Trial Discovery Discovery Ethics Course Plan I. Pre-Trial Discovery II. General Ethical Rules and Personal Mores Governing Discovery III. Ethical Considerations for Obtaining Informal

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

ESI Risk Assessment: Critical in Light of the new E-discovery and notification laws

ESI Risk Assessment: Critical in Light of the new E-discovery and notification laws ESI Risk Assessment: Critical in Light of the new E-discovery and notification laws Scott Bailey, CISM Christopher Sobota, J.D. Enterprise Risk Management Group Disclaimer This presentation is for informational

More information

WHITE PAPER: CUSTOMIZE WHITE PAPER: BEST PRACTICES FOR ARCHIVING. Best Practices for Defining and Establishing Effective Archive Retention Policies

WHITE PAPER: CUSTOMIZE WHITE PAPER: BEST PRACTICES FOR ARCHIVING. Best Practices for Defining and Establishing Effective Archive Retention Policies WHITE PAPER: CUSTOMIZE WHITE PAPER: BEST PRACTICES FOR ARCHIVING Confidence in a connected world. Best Practices for Defining and Establishing Effective Archive Retention Policies Sponsored by Symantec

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

Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S

Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S What is a Litigation Hold Notice? Notice from an authorized department (e.g., Attorney General s Office Torts

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

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

WHAT TO DO WHEN YOU RECEIVE A LITIGATION HOLD NOTICE. A Guide for University Faculty, Staff, and Others

WHAT TO DO WHEN YOU RECEIVE A LITIGATION HOLD NOTICE. A Guide for University Faculty, Staff, and Others WHAT TO DO WHEN YOU RECEIVE A LITIGATION HOLD NOTICE A Guide for University Faculty, Staff, and Others What is a Litigation Hold Notice? Notice from an authorized UW department (Attorney General s Office,

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

Records Management Electronic Records and Electronic Discovery

Records Management Electronic Records and Electronic Discovery Records Management Electronic Records and Electronic Discovery Office of the Secretary of the Commonwealth Division of Public Records 617-727-2832 www.sec.state.ma.us/pre/predix.htim Agenda Records Management

More information

In a recent Southern District of California decision, the court sent a

In a recent Southern District of California decision, the court sent a The Qualcomm Decision: Ethics In Electronic Discovery VICTORIA E. BRIEANT AND DAMON COLANGELO A recent decision reinforces the importance of a comprehensive electronic document management plan. In a recent

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

3 "C" Words You Need to Know: Custody - Control - Cloud

3 C Words You Need to Know: Custody - Control - Cloud 3 "C" Words You Need to Know: Custody - Control - Cloud James Christiansen Chief Information Security Officer Evantix, Inc. Bradley Schaufenbuel Director of Information Security Midland States Bank Session

More information

ediscovery: The New Information Management Battleground Developments in the Law and Best Practices

ediscovery: The New Information Management Battleground Developments in the Law and Best Practices Sponsored by ediscovery: The New Information Management Battleground Developments in the Law and Best Practices Kahn Consulting Inc. (847) 266-0722 info@kahnconsultinginc.com Introduction The following

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

Ten Tips for Responding to Litigation Hold Letters

Ten Tips for Responding to Litigation Hold Letters Litigation Holds: Ten Tips in Ten Minutes Stephanie F. Stacy Baylor, Evnen, Curtiss, Grimit & Witt, LLP 1248 O Street, Suite 600 Lincoln, Nebraska 68508 sstacy@baylorevnen.com Introduction A litigation

More information

Department of Veterans Affairs VA Directive 6311 VA E-DISCOVERY

Department of Veterans Affairs VA Directive 6311 VA E-DISCOVERY Department of Veterans Affairs VA Directive 6311 Washington, DC 20420 Transmittal Sheet June 15, 2012 VA E-DISCOVERY 1. REASON FOR ISSUE: To establish policy concerning the care and handling of documents

More information

PROTOCOL FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS AT WESTERN WASHINGTON UNIVERSITY

PROTOCOL FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS AT WESTERN WASHINGTON UNIVERSITY PROTOCOL FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS AT WESTERN WASHINGTON UNIVERSITY Under the Auspice of the WWU Public Records Group Wendy Bohlke Senior Counsel Tony Kurtz Archivist/Records

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 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

The Importance of Appropriate Record Retention Policies

The Importance of Appropriate Record Retention Policies The Importance of Appropriate Record Retention Policies Copyright 2003 by Document Technologies, Inc. David Shub, Discovery and Records Management Director 1 With HIPAA, Sarbanes-Oxley, and various high-profile

More information

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE Milton Luoma Metropolitan State University 700 East Seventh Street St. Paul, Minnesota 55337 651 793-1246 (fax) 651 793-1481 Milt.Luoma@metrostate.edu

More information

AUTION! Electronic. The courtroom falls silent. Pinning you with her gaze, the judge inquires, Do you have any questions,

AUTION! Electronic. The courtroom falls silent. Pinning you with her gaze, the judge inquires, Do you have any questions, AUTION! Electronic Picture yourself in the courtroom waiting for the judge. You sit at counsel table next to your client and your partner. The gavels raps, and the judge assumes the bench. She is visibly

More information