E-Discovery Update: Essentials for In-house Counsel

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1 E-Discovery Update: Essentials for In-house Counsel FM Panelists: Guest Panelist: David Rosenbaum Kelly Inglese Dera Nevin Managing Counsel, e-discovery, TD Bank Group Toronto Fasken Martineau Symposium May 23, 2013 Overview Case law update Corporate Counsel s approach to E-Discovery E-Discovery best practices for law firms 2 1

2 Case Law Update Toronto Fasken Martineau Symposium May 23, 2013 Case Law Update Sedona Canada Principles Principle 3: Preserve potentially relevant ESI Principle 5: Produce relevant ESI that is reasonably accessible in terms of cost and burden Principle 11: Sanctions considered in case of material prejudice U.S. Courts: Strict approach Sanctions - oriented Criticism of in-house counsel Canadian Courts: Little case law Not as strict Less punitive 4 2

3 Recent U.S. Cases (i) Day v. LSI (U.S. Dist. Ct. Ariz, Dec. 2012) Defendant s in-house counsel (Bento) send hold memo to employees, but omitted one Court held Bento to have culpable mind and to have acted wilfully Result: default judgment against defendant on one issue plus adverse jury instruction plus $10,000 fine 5 Recent U.S. Cases (ii) Voom HD Holdings v. EchoStar (N.Y.S.C. App. Div. Jan. 2012) Non-lawyer employee s selection of documents to hold found to be insufficient Best practice: litigation hold in writing Credible probability of being involved in litigation Culpable state of mind can include ordinary negligence Coming change in Rules? 6 3

4 Recent U.S. Cases cont d (iii) National Day Labor Org. Network v. U.S. Immigration & Customs (U.S. Dist. Ct., N.Y., June 2012) Extremely rigorous searches failed to discharge e-discovery obligations Key officers and custodians overlooked Vague search instructions, inadequate search terms Most custodians cannot be trusted to run effective searches (iv) Peerless Industries v. Crimson AV (U.S. Dist. Ct., Ill., Jan 2013) Hands-off approach insufficient Can t put burden of compliance on outside vendor 7 Recent U.S. Cases cont d (v) Scentsy, Inc. v. B.R. Chase (U.S. Dist. Ct., Idaho, Oct. 2012) No written litigation hold General counsel spoke to custodian and asked that documents not be deleted Some documents were deleted Completely inadequate, borders on recklessness 8 4

5 Canadian Jurisprudence Courts recognize duty to preserve: Doust v. Schatz, Sask. C.A Comments to Sedona Canada Principles provide guidance Spoliation requires intentional destruction of relevant evidence Main remedy: rebuttable presumption against spoliator Issue generally left to trial judge (McDougall v. Black & Decker, Alta C.A., 2008) 9 Canadian Jurisprudence Cont d Pre-trial relief may be available in exceptional case where party is particularly disadvantaged by destruction of evidence Examples: Intentional destruction of hardware disks and document in breach of undertaking leads to dismissal of action: Brandon Heating & Plumbing v. Max Systems (Man. Q.B., 2006) Running Evidence Eliminator is contempt leading to defence being struck: itrade v. Webworx (Ont. S.C.J., 2005) Intentional deletion of relevant document is contempt; court orders forensic audit at cost of spoliator to see what else was deleted: Fuller v. Spence (Alta. Q.B., 2012) 10 5

6 Canadian Jurisprudence Cont d Recent cases L Abbé v. Allen-Vanguard (Master, 2011) Court critical of both sides but declines to order sanctions Instead court emphasizes ongoing collaborative discovery planning and revision Court says: Each party must understand who are custodians, and its own information architecture Refers to U.S. litigation as engulfed in virtual e-discovery nightmare But says spoliation sanctions may be possible in our law 11 Canadian Jurisprudence Cont d Mansfield v. City of Ottawa (Master, 2012) Court again critical of a party s e-discovery efforts (production) Court declined to order sanctions for two reasons: No discovery plan Information not deliberately concealed or destroyed But Court made orders that defendant make specific inquiries and report back 12 6

7 Conclusions Every case is an e-discovery case Sedona Canada = best practices U.S. litigation environment is different but Companies that operate in U.S. must follow U.S. rules Canadian courts may (will?) move toward sanctions and closer to U.S. 13 Corporate Counsel s Approach to E-Discovery Toronto Fasken Martineau Symposium May 23,

8 Working with External Counsel Preservation litigation holds Managing e-discovery costs Information Security 15 Preservation Essential to discuss up-front Tension between responsibilities Advice vs. hold External counsel monitoring vs. client implementation 3 rd party assistance - collection 16 8

9 Litigation Holds Client IT External Lawyer Identify trigger event X Obtain litigation hold advice X Draft litigation hold memo X X X Approve litigation hold memo X Send litigation hold memo to custodians X Send litigation hold memo to records and IT X X Obtain confirmatory responses from custodians X X X Obtain confirmatory responses from records and IT X X X Obtain advice re negative responses (interview) X Release negative responses X X Add additional custodians X X EDT 17 Managing E-Discovery Costs: Rand Report (2012) Collection 8% Internal 4% Processing 19% Outside Vendors 26% Review 70% 73% NOTE: Values reflect median percentages for cases with complete data, adjusted to 100 percent. 18 9

10 Managing Costs Agree on workflow; recycle where possible Obtain (and monitor) budgets Assign a project manager Use of technology Wage arbitrage Budget and project post-mortem 19 Information Security 20 10

11 Information Security Vulnerabilities Hard drives/cd/dvd Vendors Law firm practices Experts 3rd party reviewers PII/PHI/sensitive info Redaction of natives End of life destruction Use secure file transfer Use encryption Audit Establish ground rules Secure FTP/encryption Audit Redaction/depersonalization Discovery plan Return or destruction; certification 21 E-Discovery Best Practices for Law Firms Toronto Fasken Martineau Symposium May 23,

12 Benefits of Litigation Management Adopt a project management methodology Define objectives Performance targets Cost Quality Scope Benefits & Risks 23 Minimizing Cost and Risk Defensible process is key Checklists Audit trail Repeatable processes Defined workflow Standard forms Team approach Right people doing the right work Cost sensitivity Controlled scope = controlled cost 24 12

13 A Reasonable Approach Be informed Know your client Know your case Understand importance of ECA Know technology Drive the process Educate Don t be adversarial Get opposing counsel to adopt your position 25 David C. Rosenbaum Kelly Inglese Dera Nevin Managing Counsel, e-discovery TD Bank Group 13

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