Predictability in E-Discovery

Predictability in E-Discovery Presented by: John G. Roman, Jr. National Manager, Practice Group Technology Services Nixon Peabody LLP Tom Barce Assistant Director of Practice Support Fulbright & Jaworski LLP Laurie A. Weiss Partner Fulbright & Jaworski L.L.P Ceyda Tocsoy Manager, Litigation Support & Technology Torys LLP

E-Discovery Planning for Reducing Costs John G. Roman, Jr. National Manager, Practice Group Technology Services Nixon Peabody LLP

Problems More than 90% of all business information is digital Average 100-150 emails per day for management E-mail lacks formality Many documents exist in multiple copies and in multiple locations Cheaper to store electronic data than delete it Delete does not mean destroy ESI thought to be deleted may not be irretrievably destroyed! Courts have ordered: Parties to produce hard drives to recover deleted files Court-appointed experts to analyze a producing party s hard drive and server to recover information

and More Problems Clients do not Follow or have data retention policies Know where data is located Work with their IT departments Attorneys FUD Are not familiar with complexities of electronic discovery Do not understand forms of production Do not engage litigation support upon case inception Fear Uncertainty and Doubt

Why Plan? If you don t know where you re going any road will get you there. A plan is worth very little. The process of planning is essential. Dwight D. Eisenhower

Pieces of ediscovery Planning Before Litigation When Litigation is Pending During Litigation Production Requests

The Deliverables Data Map ediscovery Plan Data Retention Policies and Procedures Litigation Readiness Plan Data Collection Plan Litigation Hold Plan Technology Inventory Cost Estimates

Elements of an ediscovery Plan Prior to Litigation Document and Implement Policies Data Retention Litigation Hold Data Preservation Document Current Systems, Networks, and Data Locations Include PDA s, Blackberry s, and Removable Media Identify Inaccessible Data Current Data Backup Policies and Procedures Identify ediscovery request cross functional response teams Inside and Outside Counsel Information Technology Human Resources Audit Determine Scope of ediscovery Requests Identify internal capabilities (What can and cannot be handled in house? ) Select tools for data collection, review and production Negotiate preferred vendor agreements Identification and training of a 30(b)(6) witness Data Retention Policies Litigation Hold Data Map Litigation Readiness Plan Technology Inventory

Elements of an ediscovery Plan When Litigation is Pending Implementation of policies Litigation Hold Identification of legal and litigation services team members Early Case Assessment Meet and Confer Custodian Identification Search Term Agreement Form of Production Negotiation with Opposing Counsel Related to ediscovery obligations Define Data Collection Methods, Resources and Storage Forensically or Windows Copy? Preservation of meta data? ediscovery Plan Cost Estimates

Elements of an ediscovery Plan When Litigation is Pending Data Collection Plan How much data? Where is it located Number of Custodians Types of Data and Systems Data Analysis Definition of filter methods and terms Cost estimates for: Collection Filtering Processing Review Data Collection Plan Cost Estimates

Elements of an ediscovery Plan Production Form of Production Rolling Productions Deadlines Estimated Costs ediscovery Plan Cost Estimates

Steps of ediscovery Planning Step 5 Stick to the Plan Step 4 Identify Response Members Step 3 Involve IT and Litigation Services Step 2 Engage an experienced ediscovery law firm Step 1 Policy Creation

Benefits Reduce overall cost of electronic discovery Reduce stress of affected employees Mitigate risks associated with electronic discovery Possess more control of ediscovery process

Research Capture Unify Proactive Measures Law Firms Can Take To Better Facilitate The E-discovery Process Tom Barce Assistant Director of Practice Support Fulbright & Jaworski LLP

Internal Discovery Research Capture metrics by case Recognize highs and lows in metrics Track how estimates translate into reality Use your valleys wisely

Manage & Capture Service Providers Frequent, substantial shifts in methodology Compare apples to apples Leverage business Capacity commitments Survey the market regularly Look out for talent drain

Manage & Capture Client Data Assess client IT infrastructure early Assess data early Acknowledge the unknowns Filter, test & sample data

Formulate a Consistent Approach Specifications for vendors Reporting from vendors Production specifications

The Strategic Benefits of the Amended FRCP Use meet and confer to your advantage Limit the scope of discovery (and, therefore, e- discovery costs) Suggest or object to form of production. Remember the subtleties of exchange, such as field names, file types, etc that can be a burden from case to case.

Are We There Yet? Revise your approach What does emerging case law illustrate?

Resources The Electronic Discovery Reference Model http://www.edrm.net/ NALSM A service provider near you

E-Discovery and Compliance with the Federal Court Rules Laurie A. Weiss Partner, Fulbright & Jaworski L.L.P. Lisa Habbeshaw Adjunct Professor, Electronic Evidence & Discovery West Valley College, Saratoga, CA

shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.

Primary Impact of Amended Federal Rules Early and comprehensive information retrieval and preservation Rule 26(f) Identifying and disclosing inaccessible data Rule 26(b)(2)(B) Risks of waiving attorney client privilege or privacy rights and forfeiting confidentiality Rule 26(b)(5) Proposed Rule of Evidence 502 Producing in the proper form (metadata) Rule 34(b) The burden of tiered production Limited safe harbor Rule 37

New Expectations And Benchmarks Duty to preserve: when litigation is reasonably anticipated Preservation efforts continuously monitored Both attorney and client share the duty Duty to preserve may extend to home computers, email accounts, information held by third parties Preservation efforts: defensible to court and opposing parties Cost burden and cost shifting

Duty to Preserve - From The Judge s Perspective Good Faith Business Reasonableness Evading Discovery Intentionally Destroying Evidence Impeding the Litigation

Was a Duty to Preserve Triggered? Indicators To Court Of Good Faith Determination made whether circumstances give rise to a credible threat of litigation Procedure established for reporting potential threats of legal action to responsible decision maker Whether credible threat exists is based on established procedure consistently followed Whether threat is credible is based on prudent investigation and evaluation of relevant facts, circumstances, company s experience Responsible, trained decision maker determines when litigation is reasonably anticipated based on known facts Evaluation process analyzed by courts and opposing parties based on consistent application of established process in good faith no hindsight evaluation

Cost Shifting Presumption: responding party pays Rule 26(c) - responding party may invoke the district court s discretion under Rule 26(c) to grant orders protecting him from undue burden or expense. A Cost Paradigm Shift may be occurring Rule 26(b)(2) inaccessible data

Cost Shifting in Practice Object to scope of overbroad requests Prove or disprove inaccessibility Argue the factors of Rowe and Zubulake I, etc. Offer or request sample production (or prepare for order to sample) Expect client will pay its own costs to review documents before production Consider claw-back, other privilege protocols to control costs of attorney review Be more aggressive if client is a third party to litigation

Opportunities to Increase Predictability Manage ESI early Seize opportunities to drive desired results It s about the process no silver bullets

Ready Reference to Federal Rules Rule 16 Rule 26(f) Rule 26(a) Rule 26(b) Rule 33 Rule 34 Rule 37(f) Rule 45 Scheduling Order Early Meeting of Counsel Initial Disclosures Duty to Disclose Limits on Scope Inadvertently Produced Materials Interrogatories to Parties Demand for Documents Sanctions Subpoenas

Ready Reference to Federal Rules cont 21 days before a scheduling conference or 21 days before a Rule 16(b) scheduling order, the parties must confer to discuss any issues relating to preserving discoverable information to develop a proposed discovery plan

Ready Reference to Federal Rules cont Rule 26(f) Conference issues include: Preservation of electronic information Details about each party s I.T. system (including definitions) Accessible & Not Reasonably Accessible (NRA) data under Rule 26(b)(2)(B) Form or forms of production Scope and timing of discovery Issues re claims of privilege (clawback & sneak peek) Development of a discovery plan that incorporates each party s system capabilities

Microsoft Submitted to Federal Rules Committee

Two Tier System for ESI Reasonably Accessible and Relevant to the Claims and Defenses (not subject matter relevance) Not Reasonably Accessible (NRA) Based on Undue Burden or Cost

Two Tier System for ESI Reasonably Accessible and Relevant to the Claims and Defenses (not subject matter relevance) Not Reasonably Accessible (NRA) Based on Undue Burden or Cost

ESI Not Reasonably Accessible Certain Backup Tapes and Databases ESI destroyed in good faith in accordance with a reasonable document retention policy ESI requiring restoration from obsolete resources ESI Legacy Data not migrated to new systems ESI requiring forensic recovery or Damaged Media Fragmented data; slack space or unallocated space

Demonstration of Good Cause The specificity of the discovery request The quantity of the information available from other AND more easily accessible sources The failure to produce relevant information that seem likely to have existed but is no longer available on more easily accessible sources The likelihood of finding relevant, responsive information that cannot be obtained from other more easily accessible sources Predictions as to the importance and usefulness of the further information Importance of the issues at stake and the parties resources

Motion Practice and Court Rulings Deny Request Limit Discovery Request Conditional Production Cost Shifting/Cost Sharing or Data Sampling

Resources Moores Federal Practice: ISBN 1-4224-0690-3 Includes Analysis by Hon. S. Sheindlin New Rules: www.uscourts.gov.rules/newrules1 NCCUSL:www.law.upenn.edu/bll/archives/ulc/u doera/2007annualmeeting_draft.htm CCJ Guidelines: www.ncsonline.org Sedona: www.sedonaconference.org Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

Thank You!!!