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
E-Discovery Planning for Reducing Costs
John G. Roman, Jr.
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
and More Problems…
Clients do not …
Follow or have data retention policies Know where data is located
Work with their IT departments
Attorneys …
Are not familiar with complexities of electronic discovery Do not understand forms of production
Do not engage litigation support upon case inception
FUD
Why Plan?
If you don’t know where you’re going any
road will get you there.
Pieces of eDiscovery Planning
When Litigation is Pending
Production Requests During Litigation
The Deliverables
Data Collection Plan
Cost Estimates Data Map
Litigation Hold Plan Technology Inventory
Litigation Readiness Plan
Data Retention Policies and
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
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
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
Steps of eDiscovery Planning
Policy Creation
Engage an experienced eDiscovery law firm
Step 1
Involve IT and Litigation Services Identify Response Members
Stick to the Plan
Step 5
Step 4
Step 3
Benefits
Reduce overall cost of electronic discovery
Reduce stress of affected employees
Mitigate risks associated with electronic
discovery
Research ∞ Capture ∞ Unify
Proactive Measures Law Firms Can Take To Better
Facilitate The E-discovery Process
Tom Barce
Internal Discovery Research
Capture metrics by case
Recognize highs and lows in metrics
Manage & Capture
Service Providers
Frequent, substantial shifts in methodology Compare apples to apples
Leverage business
Capacity commitments
Manage & Capture
Client Data
Assess client IT infrastructure early Assess data early
Formulate a Consistent Approach
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
Revise your approach
What does emerging case law illustrate?
Resources
The Electronic Discovery Reference Model
http://www.edrm.net/
NALSM
E-Discovery and Compliance with the
Federal Court Rules
Laurie A. Weiss
Partner, Fulbright & Jaworski L.L.P. Lisa Habbeshaw
“…shall govern in all
proceedings
thereafter
commenced and,
insofar as just and
practicable,
all
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
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
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
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.
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
Manage ESI early
Rule 16
Scheduling Order
Rule 26(f)
Early Meeting of Counsel
Rule 26(a)
Initial Disclosures
Rule 26(b)
Duty to Disclose
Limits on Scope
Inadvertently Produced Materials
Rule 33
Interrogatories to Parties
Rule 34
Demand for Documents
Rule 37(f)
Sanctions
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
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
Two Tier System for ESI
Reasonably Accessible and Relevant to the Claims and Defenses (not subject matter relevance)
Two Tier System for ESI
Reasonably Accessible and Relevant to the Claims and Defenses (not subject matter relevance)
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
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
Motion Practice and Court Rulings
Deny Request
Limit Discovery Request
Conditional Production
Resources
Moores Federal Practice: ISBN 1-4224-0690-3
Includes Analysis by Hon. S. Sheindlin
