THE NEW WORLD OF E-DISCOVERY

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1 THE NEW WORLD OF E-DISCOVERY Ralph Losey: partner and National e-discovery Counsel of Jackson Lewis LLP, a labor & employment firm with 700 lawyers and 46 offices nationwide. JacksonLewis.com author of four books on electronic discovery law and the weekly e- DiscoveryTeam.com blog. Adjunct Professor of Law and CEO of online training program, e- DiscovertTeamTraining.com. In private practice since 1980; General Trial Law then limited practice to e-discovery in Copyright Ralph Losey 2011

2 Two Fundamental Changes in Litigation in Past thirty Years 18 Million RFPs 98% Rule

3 Salt Lake City is a tough jurisdiction for e-discovery Phillip M. Adams & Assoc. L.L.C., v. Dell, Inc., 2009 WL (D.Utah March 30, 2009). Magistrate Judge David Nuffer > Litigation Imminent Even though P. did not know it might have a claim until Safe Harbor Rule 37(e) not enforced although it was routine practice deletions with no proof of bad faith.

4 Very Tough! Philips Electronics N.A. Corp. v. BC Technical, 2011 WL at *2 (D.Utah, Feb. 16, 2011) Dist. Crt. Judge Clark Waddoups; Magistrate Judge Samuel Alba. defendant in Utah District Court was found to have destroyed electronic evidence on five of its laptops and then gave false testimony to try to cover it up. Empty head defense and blame the lawyers defense rejected Judgment was entered against the defendant, fees were awarded, and the defendant and four of its top officers were referred to the United States Attorney for

5 The Trouble with Tribbles The Data Deluge, The Economist, Cukier, K. (2/25/10) The Trials and Tribble-ations of the Data Deluge, Losey, R, Adventures in Electronic Discovery, pg. 12, (West Thomson 2011) e-discovery: Did You Know? YouTube Video

6 Legal practice Must Change to Adapt

7

8 e-discovery requires an Interdisciplinary team Approach

9 Fourfold Solution Lawyers, Techs & management Working Together as e-discovery Teams Education and Training Cooperation and Transparency Metrics with new Technologies and methods

10 Risk Management $ Cost v. Risk $ $ $ $ $0 Very High Risk High Risk Moderate Risk Low Risk How Much Effort/Money Are Adequate?

11 Electronic Discovery Reference Model Processing Preservation Information Management Translucent Fill Identification Review Production Presentation Translucent Fill Collection Analysis Volume Relevance Volume Relevance Analysis Collection Inforamat Identifica Productio Presentat

12 Each Case Is Different ESI importance to case ESI and Custodians Count ESI Type and Density Complexity of Relevance Calls Complexity of Other Calls Number of Privileged ESI Number of Confidential ESI $ Amount at Issue $ Budget Time Requirements Experience and Skill of Team Client Cooperation Vendor Performance Opposing Counsel Cooperation Judge and Jury

13 Story of Three Cases $50,000 $750,000 $4,000,000 Small Case with demand - $3,500 (2 custodians; 260 Docs produced) 7% Medium Case with and other ESI demand - $99,630 (10 cust, 9,500 prod) 13% Big Class Action Case - $192,000 (20 custodians, 19,000 Docs produced) 5.25%

14 Small Case ($50,000) Outlook Review of Two custodians Each Custodian has10,000 s Two PSTs loaded onto office computer One Custodian has folder with all relevant s items 2 Keyword Searches of all other folders creates 200 new hits, of which only 10 more are marginally relevant 110 s and attachments are printed out for production of 200 pages $1,150 Total - 3 hrs Assoc ($300/$900), 1 hr paralegal ($200),.5 hr Lit Support ($100/$50)

15 Small Case $3,500 / $50,000 = 7% Total Cost: $3,500 Equals: $0.175 per 20,000 files collected $5.00 per 700 docs reviewed $13.46 per 260 docs produced Other Custodian has No Folder with relevant. 10 keyword searches required, and consult with e- discovery specialist or attachments with hits were reviewed. 150 items were found to be relevant and printed out for production of 225 pages $2,350 Total - 5 hrs Assoc ($300/$1,500), 2.5 hrs para ($200/$500), 1 hr Lit Sup ($100/);.5 hr specialist ($500/$250). Total 260 docs produced for $3,500

16 Medium Case ($750,000) Summation Type Review of Ten custodians Two PSTs loaded onto office computer 10 PSTs and 10 My Docs Folders sent to Lit Support for Culling at $150 per GB Review on Outlook of Top 2 Custodians to test keywords and date ranges. 400 files reviewed and 50 noted as relevant Consult with specialist attorney on search Consult with opposing counsel (cooperation & disclosure) 10 PSTs and MyDocs totaling 20 GBs are Culled by Lit Support $3,000 Processing reduces 100,000 items to 60,000 (denist, dedup) Search Culling 1st pass reduces to 30,000 Study hit counts and sample on Outlook to narrow search More strategic cooperation & aggressive disclosure 2nd Search Cull creates 20,000 hits. Decide to Review.

17 Medium Case Summation Type Review of Ten custodians 2nd Search Cull creates 20,000 hits requiring 2 GBs 2 GBs processed and loaded into Summation for native review at $350 per GB. Lit Support charge of $700 Summation Review of 20,000 items, s, attachments and loose files Two associates review at 100 items per hr; 200 hours 10,000 items marked as Relevant (half eliminated) 500 of relevant marked as Privileged 1,500 marked as confidential or requiring redaction

18 Medium Case $99,630 / $750,000 = 13% Total Cost: $99,630 Equals: $0.996 per 100,000 files collected Equals: $4.98 per file for 20,000 reviewed $10.49 per 9,500 files produced $95,000 Total fees: $78,000 for 260 assoc hrs at $300 (10 search, 200 review, 50 logging & redaction ) $12,000 for Partner & Specialist supervision $5,000 for Paralegal Assistance Production Costs 1,500 files tiffed and endorsed at 3,000 pgs at.06 per pg. = $180 Lit Support Charge 8,000 produced in Native, 5 GBs at $150 per GB, $750 Lit Support charge $4,630 Total Lit Support Charges (3,000 cull+700 load+180 tiff+750 native)

19 Large Case $4,000, Custodians Four PSTs and My Docs Loaded into Vendor ECA Software 20 PSTs and 20 My Docs Folders, with about 200,000 files sent to Vendor Review on Vendor ECA Software Top 4 Custodians to test keywords and date ranges for 20 Class A Specialist attorney supervises search Thousands of files searched and 500 marked as relevant $15,000 vendor fee Greater Defensibility than Outlook Search All 20 PSTs and MyDocs, totaling 40 GBs, Loaded and Culled into Vendor Advanced Review Platform $55,000 vendor fee for loading and 12 month hosting Culling Down from 200,000 to 40,000 files with hits to review Opposing counsel is involved, and maybe also Court

20 Large Case Advanced Review of 20 Custodians 40,000 items to be reviewed Team of 4 contract lawyers at aver. $50 per hr per lawyer Reviews aver. 200 files per hr per lawyer for Relevance; 200 hrs; $10,000 for first pass review. 37.5% of the Documents are Eliminated as Irrelevant 25,000 items get 2nd pass review Two associates review at 200 items per hr; 125 hrs ($37,500) 5,000 items are changed to Irrelevant; leaving 20,000 to produce or log 1,000 of relevant marked as Privileged 1,500 marked as confidential or requiring redaction Associate time for logging & redaction: 25 hrs ($7,500)

21 Large Case $210,000 / 4,000,000 / = 5.25% Total Cost: $210,000 Equals: $1.05 per 200,000 files collected Equals: $5.25 per file for 40,000 reviewed $11.05 per 19,000 files produced $85,000 Total Vendor Costs ($15,000 Processing & ECA+ $55,000 load/host advanced review + $10,000 production/misc) $125,000 Total fees: $10,000 Contract Lawyers $10,000 for assoc and partner supervision of K. lawyers $45,000 for Associates for 125 hrs of 2nd pass review and 25 hrs for priv log and confidentiality $50,000 for Partner supervision and Specialists ECA $10,000 for Paralegal Assistance $210,000 GRAND TOTAL

22 Electronic Discovery Reference Model Processing Preservation Information Management Translucent Fill Identification Review Production Presentation Translucent Fill Collection Analysis Volume Relevance Volume Relevance Analysis Collection Inforamat Identifica Productio Presentat

23 QUESTIONS? Ralph Losey Jackson Lewis LLP RalphLosey.com e-discoveryteam.com e-discoveryteamtraining.com

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