Navigating E-Discovery, And The

Transcription

1 Navigating E-Discovery, And The l f C S Role of ACEDS 1 IDF Conference December 2012 Overview Introduction to US E-Discovery Important E-Discovery Trends Role of ACEDS Mission of ACEDS in Japan 2

2 E-Discovery Defined Finding, preparing and sharing electronically stored information (ESI)( ) for use in the legal g process Ubiquitous in most litigation Governed by US federal and state rules, foreign law Court-imposed penalties for non-compliance 3 E-Discovery Steps Preservation Collection Early Data Assessment Processing Reviewi Production 4

3 E-Discovery in the United States Rules changed to reflect increase in ESI in lawsuits» Federal Rules of Civil Procedure Amended in Address ESI early through Meet-and-Confer 2. Privilege issues (inadvertent production, waiver) 3. Discovery of Non-Reasonably Accessible ESI, Cost- Shifting 4. Preservation, Form of Production 5. Sanctions 5 Duty to Preserve ESI Legal duty to preserve ESI when litigation known or reasonably y anticipated p Failures result in:» Loss of evidence» High retrieval costs» Spoliation, sanctions risks» Storage, g, systems y costs 6

4 Sanctions for E-Discovery Failures Varies depending on intent, resulting prejudice» Fines» Adverse Inference Jury Instruction» Striking of Pleading or Defensef» Dismissal or Default Judgment» Costs» All of the Above 7 Trends in US E-Discovery Navigating Cross-Border E-Discovery Malpractice Computer-Assisted Review, Predictive Coding Cloud Computing Managing Big Data D t 8

5 Cross-Border E-Discovery Must navigate privacy, data laws of other countries Conflicting concepts of discovery Foreign, US laws at odds Personal data protected abroad EU Data Protection ti Directive 9 Emerging Data Laws in Other Countries Asian-Pacific Countries Developing Rules Japan Privacy Act Blocking Statutes State Secrets Laws Organizations doing business b i in i US must t abide by b US laws Ex. Apple v. Samsung 10

6 Attorney E-Discovery Malpractice J-M Manufacturing v. McDermott Will & Emery Alleged Mishandling of Electronic Document Review Failure to Supervise Repeated Inadvertent Disclosure of Privileged Documents Vendors Stratify, Navigant Sued First of Many? 11 Rise of Predictive Coding Predictive Coding: Automated review of electronic documents based on input p from attorney y AKA: Computer-Assisted Review, Intelligent Review, Technology-Assisted Review etc Technology Assisted Review, etc. Da Silva Moore v. Publicis Groupe et. al Judicial Approval Followed by Other Judicial Opinions 12

7 Predictive Coding Continued Explosion of Software Tools Challenges to Adoption: Transparency and the Black Box Difficult to Use Defensibility Concerns 13 E-Discovery in the Cloud Organizations Increasingly Using Cloud Systems Positives Lower cost, accessibility, collaboration, storage advantages Concerns Data Security, Inability to Locate Data, Legal Hold Challenges, Ability to Produce for Discovery 14

8 Big Data and Information Governance Push to Overhaul Electronic Data Management Corporations Struggling with High Costs, Legal and Compliance Issue Information Governance Crucial to E-Discovery Implementing Defensible Deletion Policies Reduces costs, liabilities Presidential Records Management Directive 15 Role of ACEDS An Overview Training, Networking, Resources for the E-Discovery Community y 1,000+ Members in US, Latin America, Europe and Asia Offers Certified E-Discovery Specialist Certification Industry Standard Baseline of Competence Benchmark for Measuring Knowledge 16

9 Member Benefits Exclusive News, Analysis Hundreds of Articles at ACEDS.org On-Demand Web Training Webinars with Top Experts, Podcasts, How-To Manuals Career Center Job Postings, Forums Discounts on Certification, Conference Attendance 17 CEDS Certification ACEDS Management Has Years of Certification Experiencep Built Certified Anti-Money Laundering Specialist (CAMS) Credential 8,000 CAMS Individuals Globally 18

10 CEDS Certification Continued Built by Hundreds of E-Discovery Experts Tests 15 Areas of Knowledge Item Scenario-Based Questions Offered at 600+ Testing Centers Certifies for f E-Discovery E Competence C t Held by 700+ Worldwide Rigorous Exam with 30 Percent Failure Rate 19 Benefits of CEDS Certification Expand Career Options Across Industries, Professions Justify Increase In Salary Become More Valuable to Litigation, Records Management Team Increase Credibility In Court Show Employer You re Qualified to Handle E- Discovery 20

11 Sitting for the CEDS Exam Minimum of 40 CEDS Credits Required CEDS Credits Calculated by Education, Experience, Training Education 5 Credits to 15 Credits; High School to Post-Graduate Experience Based on Past 3 years of E-Discovery Handling Training 1 Credit Per Hour of Training 21 Organizational Growth ACEDS Launched in Early Members on Five Continents CEDS Professionals in More Than A Dozen Countries CEDS Certification Preferred, Made Condition of Employment Ernst & Young Certified 70 Special Counsel, GGO, BIA, Night Owl Require CEDS 22

12 Growth Strategy in Japan Networking with Top E-Discovery Organizations in Japanp Forming Chapters in Japan, other APAC Countries Specialized Training Country-Specific Courses Tailored to Japanese E-Discovery Professionals Webinars Focusing on Japanese E-Discovery 23