© 2014 Waller Lansden Dortch & Davis, LLP. All Rights Reserved.
Tackling E-Discovery Challenges
© 2014 Waller Lansden Dortch & Davis LLP. All Rights Reserved.
Carrie R. Fowler
Regions Financial Corporation
Heather J. Hubbard
Waller
Brian J. Malcom
Waller
| 14
EDRM
Does your company have a document retention
policy?
A.
Yes
B.
No
C.
Kind of (we haven’t
thrown anything out
for decades)
| 16
Information Management
Who handles the initial stages of e-discovery at your company
such as identifying custodians and data for initial disclosures?
A.
In-house legal team
B.
Outside counsel hired
for case
C.
Outside e-discovery
counsel (may not be
counsel of record)
D.
Combination or all of
the above
In‐ho use lega l team Outs ide cou nsel hire d fo r... Outs ide e‐dis cove ry cou ns.. Com bina tion or al l of th e...0%
0%
0%
0%
10| 18
Identification of Key People
Team
Opposing counsel/filings
Custodians and witnesses
Identification of Information
Technology Team
Data map – overview of systems
Relevant policies and procedures
Volume of ESI?
| 20
Identification of Strategy
Overall business goals and strategy
Proportionality
Proposed ESI Plan
Confer with opposing counsel and document
agreed-upon plan
Does your company have a legal hold program?
A.
Yes
B.
No
C.
Sort of (very informal,
but there is a general
process)
Yes No Sort of (v ery info rmal , bu...0%
0%
0%
10Who is responsible for overseeing legal holds
at your company?
A.
General counsel or
attorney in in-house
legal department
B.
Paralegal
C.
IT/IS person
D.
Business person
E.
Rely solely on outside
legal counsel
Gen eral coun sel or atto rn.. Para lega l IT/IS pers on Busin ess perso n Rely sole ly on outs ide le g.. 0% 0% 0% 0% 0% 10Preservation
Be disciplined with your approach
Discuss suspending destruction
Assign responsibility
Who is responsible for collection of documents at
your company?
A.
General counsel or
attorney in in-house
legal department
B.
Paralegal
C.
IT/IS person
D.
Business person
E.
Outside vendor
F.
Rely solely on outside
legal counsel
Gene ral co unse l or at torn .. Paral egal IT/IS pers on Busin ess perso n Outs ide vend or Rely sole ly on outs ide le g.. 0% 0% 0% 0% 0% 0% 10How does your company generally approach
collections?
A.
Collect broadly at
beginning of case for
preservation purposes
B.
Targeted collection to
begin reviewing and
assessing merits of
case
C.
Targeted collection in
response to discovery
requests
Colle ct bro adly at be ginni .. Targe ted colle ction to be g.. Targ eted colle ctio n in re...0%
0%
0%
10| 26
Collection
Use a staged approach
Begin with a narrow focus
Collection using internal resources versus outside
providers
Self-collection = allowing custodians to identify
and select documents they believe to be
responsive
Authenticity/chain of custody, preservation of
metadata
Search Terms
Use ESI requests and other case knowledge to
craft/update search term lists.
Test the terms on real data.
Extrapolate the results to get an estimate of total
results
Use the results to negotiate the final search term
How does your company generally approach review
and analysis of documents?
A.
Rely solely on outside
counsel
B.
Contract attorneys or
paralegals
C.
In-house review
D.
Combination of the
above
Rely solel y on outs ide co ... Cont ract attor neys or pa ... In‐ho use revi ew Com bina tion of th e ab ove0%
0%
0%
0%
10 | 29Analyze and Review
Early case assessment
Tagging by issue
Review for production
| 30
Filters and Tools
Date restrictions
De-duplication/near-duplication
Search terms/sampling
Computer-assisted review/predictive coding
How does your company generally approach
production of documents?
A.
Rely solely on outside
counsel
B.
Follow company policy
or procedure in all
situations
| 32
Production
Technical specifications
Bates-labeling and confidential stamps
Redactions and privilege logs
Media or hosted site
Best Practices/Considerations –
The Client’s Perspective
Understand the implications of various forms of
production.
Understand the intricacies of your IT
infrastructure
Continually analyze/revisit discovery efforts.
Adjust/update as needed.
Identify a point person to serve as the Rule
30(b)(6) deponent.
Best Practices/Considerations –
Representing Your Client
Stipulate/agree to the form of production, but not before discussing with the client.
Understand the relative complexity of the client’s IT infrastructure.−proportionality/burden argument?
−cost-shifting?
Understand the client’s retention policies and applicable retention periods. Identify any issues with data retention.
Assist the client with identifying key players. Interview the key players early.
Continually analyze/revisit discovery efforts. Adjust/update as needed. Begin collections as quickly as possible, and use a reasoned approach for collection efforts.
Cooperate with opposing party.| 34
Resources
Firm e-discovery legal team
Firm litigation support team
| 36
Brian J. Malcom Associate, Birmingham Office Waller Lansden Dortch & Davis, LLP 1901 6thAvenue North, Suite 1400 Birmingham, Alabama 35203 Telephone: (205) 226-5706 direct Email: [email protected] Heather J. Hubbard
Partner, Nashville Office
Waller Lansden Dortch & Davis, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-6024 direct Email: [email protected] Carrie R. Fowler
Assistant General Counsel and Sr. Vice President Regions Financial Corporation
1900 Fifth Avenue North, 22ndFloor Birmingham, Alabama 35203 Telephone: (205) 264-4710 Email: [email protected]
CARRIE FOWLER
Carrie Fowler is a Senior Vice President and Assistant General Counsel at Regions Bank. Carrie serves as
discovery counsel for Regions. She consults on the discovery aspects of litigation and regulatory matters
and develops policies and procedures related to e-discovery. Prior to joining Regions in June 2013,
Carrie was Discovery Counsel at Bank of America in Charlotte, North Carolina.
Carrie graduated from Auburn University in 2000 with a B.S. in Business Administration and a
concentration in Management Information Systems. After she graduated from Auburn, Carrie worked
as a database administrator at Russell Corporation. Carrie is a 2004 graduate of Cumberland School of
Law at Samford University, where she was a research and writing editor for the
American Journal of Trial
Advocacy.
After law school, she completed a two-year clerkship with the Eleventh Circuit U.S. Court of
Appeals in Atlanta. When she is not at work, Carrie enjoys spending time with her husband and three
children, ages 2, 3, and 7.
HEATHER J. HUBBARD
Partner, Deputy Practice Group Leader, Litigation and Dispute Resolution 615.850.6024 direct
[email protected] Assistant: Carla Blevins
615.850.6160
[email protected] Join me on LinkedIn
Nashville City Center 511 Union Street Suite 2700
Nashville, TN 37219 615.244.6380 615.244.6804 fax
Clients with intellectual property and complex commercial litigation matters depend on Heather Hubbard for advice and counsel. A considerable portion of Heather’s practice involves disputes related to:
■
Copyright■
Trademark■
Technology licensing■
Patents■
Franchise■
First Amendment■
Publicity■
Internet disputesClients in the motion picture, television, and music industries also rely on Heather to perform pre-publication reviews, counsel them on pre-suit investigations, and vigorously represent them in litigation matters. Heather’s practice also includes business litigation such as:
■
Breach of contract■
Business torts■
Antitrust■
Unfair competition■
Trade secretsHeather is decisive, responsive, and efficient. Her reputation for adeptly managing complex litigation resonates with litigation clients, and her natural ease with process management results in efficient case handling. Respecting her technological skills, attorneys and clients rely on Heather to counsel them on e-discovery and data management issues. Heather is frequently called upon to serve as the "ESI coordinator" in federal litigation. Her experience includes overseeing and planning cost-effective methods to preserve, collect, review and produce data, including
Industries Served ■ Media | Entertainment ■ Information Technology ■ Franchise Legal Services ■ IP Litigation
■ Litigation & Dispute Resolution ■ E-Discovery and Data
Management ■ Intellectual Property Education
■J.D., Vanderbilt University Law School, 2004
■Executive Justice for National First Amendment Competition ■Moot Court Board
■American Bar Association Entertainment Law Initiative Award
■B.A., summa cum laude, University of Louisville, History and Political Science, 2001 Bar Admissions
■ Tennessee Court Admissions
■ U.S. Court of Appeals for the Sixth Circuit
■ U.S. District Court, All Districts of Tennessee
■ U.S. District Court, Western District of Texas
Heather J. Hubbard
in cross-border international disputes.
While prepared to do battle in a courtroom, Heather also delivers strategic advice to aid companies in avoiding disputes. In either case, clients can be comfortable that Heather's bright personality will carry them through.
Best Lawyers recognizes Heather in the categories Litigation-Intellectual Property, Litigation-Patent, Copyright Law, and Trademark Law. She was also recognized as one of Nashville Business Journal's Top 40 Under 40 and as an "IP Star" in the inaugural list by Managing Intellectual Property magazine, which based its rankings on surveys and interviews with peers and in-house counsel.
Professional
■
Fellow, Leadership Council on Legal Diversity■
Member, Nashville, Tennessee and American Bar Associations−
Litigation, Entertainment & Sports Law and Intellectual Property Sections−
Former Executive Council Member and Chair, Copyright Subcommittee of the TBA Intellectual Property Committee−
Former author of "Legislative Update" for TBA Entertainment & Sports Quarterly Newsletter■
Member, Media Law Resource Center, Entertainment Law Committee■
Member, National Academy of Recording Arts & Sciences■
Voting Member, Country Music Association■
Member, Copyright Society of the USA and Copyright Society of the South■
Member, The Sedona Conference Working Group on E-Discovery■
Member, The Electronic Discovery Reference Model Working Group■
Member, Tennessee Leadership Law■
Member, Women's Music Business Association (ex officio board member)■
Member, Nashville Young Leader's Council■
Member, Society of Leaders in DevelopmentPrior Affiliations
■
Associate, Hall, Booth, Smith & Slover, P.C., Nashville, Tenn., 2004-2006Heather J. Hubbard
Up Close
Heather enjoys spending time with her two high-energy border collies. On the weekends, you can find them hiking trails in Percy Warner Park or competing in Flyball competitions.
BRIAN J. MALCOM
Associate
205.226.5706 direct
[email protected] Assistant: Bobbie Jones 205.226.5709
1901 Sixth Avenue North Suite 1400
Birmingham, AL 35203 205.214.6380
205.214.8787 fax
Representing banks, lenders, financial institutions, and healthcare firms in litigation matters, Brian Malcom constantly seeks to insulate clients from liability, while minimizing the impact on their operations. Clients depend on Brian's analytic abilities to resolve commercial disputes related to financial products liability, contractual agreements, and other business issues. He is highly regarded for his enthusiasm and energy as well as his
responsiveness and understanding of client's interests and goals.
His well-honed communication skills enable him to represent clients in a variety of forums. Brian focuses on the areas of:
■
Bond claims■
Collection of obligations owed by governmental entities■
Financial services■
General litigation■
Healthcare■
Lien claimsHe strives to keep the client's best interest foremost in mind and tailors his approach to their needs.
Brian is a member of the editorial board of Waller's Young Lawyers Blog.
Experience
■
Associate Counsel representing an indenture trustee inIndustries Served
■ Banking | Financial Services ■ Healthcare Industry Legal Services
■ Finance & Restructuring ■ Bankruptcy & Corporate
Restructuring ■ Healthcare Litigation
■ Litigation & Dispute Resolution ■ Financial Services Litigation Education
■J.D., cum laude, Samford University, Cumberland School of Law, 2008
■Editor - Cumberland Law Review ■Birmingham Bar Association
Scholarship
■Class of 1994 - Brad Bishop Scholarship
■School of Law Scholarship ■B.A. and B.S., magna cum
laude, University of Georgia, Political Science and Psychology, 2005
■Pi Sigma Alpha National Honor Society
■Psi Chi National Honor Society Bar Admissions
Brian J. Malcom
Professional
Prior Affiliations
■
Summer Clerk, U.S. Senator Jeff SessionsUp Close
When not practicing law, Brian follows current events, politics and government. His interest in government started when he interned on Capitol Hill. Brian enjoys golfing (when it’s warm), jogging and being outdoors. His wife, Brooke, is also an attorney and they recently welcomed their first child, Henry.
