Everything You Need To Know About Electronic Discovery
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1 Everything You Need To Know About Electronic Discovery Trademark Administrator s Conference October 3-5, 2010 By: Rachel Zimmerman and Heidi Belongia
2 Meet the Panel Elizabeth E. Gouthro Trade-mark Agent, Fasken Martineau DuMoulin LLP (Canada) Rachel K. Zimmerman Partner, Merchant & Gould P.C. Heidi L. Belongia Senior Counsel, Foley & Lardner LLP
3 The Setup Fast Follower makes a wide variety of consumer snack food products. The hot new area is snack foods targeted at teenagers and young adults (ages 15-25). Next New Thing, just introduced a new snack (CHEESY POOFS) being promoted in connection with SouthPark on Comedy Central. In order to compete, Fast Follower developed a new product (CHEESE PUFFS) that looks a lot like the competition.
4 The Setup: CHEESY POOFS v. CHEESE PUFFS
5 The Setup: Timeline of Events June 15, 2010: Fast Follower begins advertising and preparing for the launch of CHEESE PUFFS July 15, 2010: Planned launch of CHEEESE PUFFS July 16, 2010: Next New Thing files a complaint and motion for a preliminary injunction to stop the launch and sale of CHEESE PUFFS Complaint alleges federal trademark infringement, trade dress infringement, and unfair competition along with related state law claims August/September 2010: Briefing and expedited discovery in preparation for the preliminary injunction hearing October 5, 2010: Preliminary Injunction Hearing
6 What Now? The attorney you are working with asks for your assistance on handling Fast Follower s expedited discovery. We must preserve, identify, collect, review, and produce relevant and responsive electronically stored information ( ESI ). Where do we start?
7 Document Retention Policies Should Fast Follower have a written document retention and/or destruction policy? If Fast Follower implements a document retention policy, what should it keep in mind?
8 Litigation Hold Fast Follower has been sued by Next New Thing what happens now? What are the key aspects of a litigation hold? What triggers the need for a litigation hold?
9 What is ESI? What is included within the definition of ESI? Where should we look for Fast Follower s ESI? Are all of these categories fair game for Next New Thing s expedited discovery requests?
10 Legal Obligations What are Fast Follower s legal obligations with respect to ESI?
11 Identifying ESI What is the best way for Fast Follower to identify its ESI? Why are document custodians important?
12 Collecting ESI How should Fast Follower collect its ESI? What can an e-discovery vendor do to assist Fast Follower? What key issues are important to keep in mind when collecting ESI?
13 Searching ESI We have identified and collected Fast Follower s ESI. What now? How are search terms developed and used? What are some of the pitfalls to avoid with search terms?
14 Reviewing ESI What format is best for reviewing ESI? What is the difference between a native file and a.tiff file? What are tags and why are they helpful?
15 Producing ESI What is the best format for producing ESI? Should Fast Follower discuss production format with Next New Thing? What are the pitfalls to avoid in production of ESI? For example: Metadata
16 Third-Party ESI What if Fast Follower needs ESI from thirdparties to defend against Next New Things trademark claims? Can Fast Follower obtain and use third-party ESI? For example: Google, Yahoo, ebay, domain name registrars
17 Practical Tips & Takeaways
18 Questions?
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