Effective Protocols for Reducing Electronic Discovery Costs

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1 Effective Protocols for Reducing Electronic Discovery Costs New Jersey Corporate Counsel Association September 21, 2012 Judge Patty Shwartz James Anelli Brian Halpin William Belt William Johnson

2 Overview Moderator Questions 60 Minutes Audience Questions 20 Minutes 2

3 3

4 By far the largest cost center of e-discovery is the cost of attorney review and data requirements grow at an annual rate of 60%. So while storage of data has become much less expensive, collection and review are the real cost centers. 4

5 Vendor Selection and Management 5

6 Vendor Selection Drafting an effective RFP Concentrate e-discovery vendors, a bidding process may not be the best approach Have a team leader who can talk legal and IT; they are different worlds and each has their own language; or hire or retain an e-discovery manager 6

7 Vendor Selection Cost is not king, a survey of in-house counsel revealed that the following issues were more important than cost: Defensibility Vendor viability Minimal disruption to business The goals of cost efficiency and effectiveness are impacted by competing demands and resources 7

8 Vendor Selection International Considerations Countries are more involved in international litigation because of the globalization of business, but most companies lack strategies to collect and produce data on a global basis 8

9 The In-House Perspective 9

10 In-House Options Developing resources in-house or outsourcing e-discovery? Contract attorneys In-house counsel must understand their specific needs and IT systems Be proactive in developing retention programs and use consultants to design such programs 10

11 Information Governance & Remediation 11

12 Predictive Coding: Pros and Cons Judicial Landscape and Acceptability The advent of computer assisted review over search terms: DaSilva Moore v. Publicis Groupe & MSL Group, Case 11-CV (S.D.N.Y. Feb 24, 2012); Global Aerospace Inc. v. Landow Aviation L.P. d/b/a Dulles Jet Center (defendant allowed to use predictive coding). Daubert Issues: U.S. v. O Keefe, 537 F. Supp. 2d. 84 (D.D.C. 2008) (rule 702 applied to parties search terms in e-discovery dispute). 12

13 Planning 13

14 Reducing the Volume of Data Agreement by counsel reducing search terms and timeframes Court involvement in reducing scope or appointment of a special discovery master Outsourcing document review: A model of predictability and access to advanced technology 14

15 Informed Planning Substantive understanding of a case is essential as opposed to being overwhelmed by process Technology is not a substitute for careful legal review and planning Is cost the only factor: the bankrupt vendor E-discovery is not a one size fits all proposition, but scalable solutions can be introduced once the nature of an organization s litigation history and IT storage parameters are ascertained 15

16 Nature of Project Distinguishing between venues Litigation Governmental investigations National and international Regulatory collection requirements Corporate concerns M&A and IP transactions 16

17 Other Solutions Filter methods? Pros and cons? Quick peek agreements between counsel Use of metrics to stay within budget 17

18 Proportionality & Reasonableness: A Judicial Perspective 18

19 Judicial Efficiencies Judicial Trends: Effective Rule 26 conferences Relevance, costs and payment options Metadata Social media and third-party storage entities Cost shifting Attorney-Client issues and clawback agreements 19

20 Judicial Efficiencies Model Orders and the judicial codification of best practices, e.g., District of Delaware Costs outside of the Order to be borne by the requesting party Witness and custodian-based limits 20

21 Rule 26 Considerations Reducing productions under Rule 26: What is not reasonably accessible because of undue burden or cost What factors does the Court weigh in determining if the burden outweighs the benefit? What about small companies/employers? 21

22 Alternative Fee Agreements 22

23 What s Next? Future trends: Where will we be in 5 years in terms of becoming more efficient? From a litigation standpoint? Technology? The e-discovery industry 23

24 Thank You 24

25 Panelists Patty Shwartz has been a United States Magistrate Judge since March 10, Before her appointment, she served as an Assistant U.S. Attorney. During her tenure at the United States Attorney's Office, she held various supervisory positions, including Chief of the Criminal Division and Executive Assistant U.S. Attorney. Before joining the U.S. Attorney's Office, she was a law clerk to the Hon. Harold A. Ackerman, United States District Judge for the District of New Jersey, and was an associate with the Philadelphia law firm then known as Pepper, Hamilton & Scheetz. Judge Shwartz is a member of committees of the United States District Court and the Court of Appeals for the Third Circuit, a member of the Board of Directors of the Historical Society of the United States District Court for the District of Jersey, Advisory Board for the Association of the Federal Bar and the John C. Lifland Inn of Court as well as the Third Circuit's Representative to the Board of Directors of the Federal Magistrate Judge's Association. She is also adjunct professor at Fordham Law School. She received her Bachelor's degree with highest honors from Rutgers College and her law degree from the University of Pennsylvania. 25

26 Panelists Brian J. Halpin, Esq. is Vice President at Capsicum Group, LLC, with locations in Philadelphia, PA, New York, NY, Fort Lauderdale, FL, Dallas, TX, and Washington, DC. Mr. Halpin has extensive experience in providing computer forensics and e-discovery services involving law enforcement, legal, and investigative matters. Mr. Halpin also served as the Acting Director of the New Jersey Regional Computer Forensics Laboratory. He is certified by the FBI, IACIS (CFCE), and Guidance Software (EnCE) in computer forensics investigations, and has personally conducted more than 350 digital forensic examinations involving cases of terrorism, espionage, computer crimes, public corruption, and white-collar crime. Mr. Halpin is an Adjunct Professor at Drexel University in Computing and Security Technology. He is a graduate of Temple University School of Law (J.D) and Seton Hall University (B.S.) and is admitted to practice in New Jersey and Pennsylvania. 26

27 Panelists Bill Belt is a Managing Director of the firm s Discovery Solutions Practice (DSP) team, a Shareholder in the firm, and a member of the firm s Board of Directors. Mr. Belt s DSP team provides technology and legal advice to clients in the collection, review and production of electronic evidence. Mr. Belt serves as Discovery Counsel on large electronic discovery projects in intellectual property, product liability and complex commercial cases. He has also helped clients respond to FTC, SEC and Department of Justice investigations. Mr. Belt also provides guidance to clients preparing electronic and document retention policies as well as litigation hold policies. Prior to joining the Discovery Solutions Group, he worked with a team of attorneys as national coordinating trial counsel in EMF litigation, latex medical glove litigation, and MTBE litigation. He was recognized by the National Law Journal, the flagship publication of the Litigation Services Network, as defense counsel for one of the "Top 10 Defense Wins for 2002", and was recognized by the American Bar Association for his work on the Exxon Valdez litigation. He received his J.D., cum laude, from George Washington University, and his B.A. from the University of Virginia. 27

28 Panelists William C. Johnson serves as Senior Corporate Counsel at Quest Diagnostics in Madison, NJ. a national provider of clinical laboratory services. Mr. Johnson received his undergraduate degree from Cornell University and his JD from Pace University. 28

29 Panelists Jim Anelli has for more than twenty years focused his practice on the representation of management in employment discrimination and labor litigation, including representing management in grievances, arbitrations and unfair labor practices. Mr. Anelli regularly provides counsel to corporate clients regarding compliance with state and federal employment requirements and designing effective personnel policies, and the development, design and implementation of employee benefit programs. He also regularly provides employment and labor consultation to BioPharma companies and represents them in a wide range of employment litigation. Mr. Anelli defends plans and employers in ERISA litigation as well. Mr. Anelli represents employers in employment and whistleblower litigation in state and federal courts and administrative agencies. He has written on numerous topics within the labor and employment area, including e-discovery issues. He received his J.D. from New York Law School and his B.S. from Rutgers. 29

30 Disclaimer This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation. This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation, and the recipient. Copyright 2012 LeClairRyan, A Professional Corporation. All rights reserved. 30

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