Navigating E-Discovery, And The

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Navigating E-Discovery, And The

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Role of ACEDS

IDF Conference 1 December 2012 Learning Seminar

Overview

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Introduction to US E-Discovery

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Important E Discovery Trends

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Important E-Discovery Trends

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Role of ACEDS

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E-Discovery Defined

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“Finding, preparing and sharing electronically stored information (ESI) for use in the legal process”( ) g p

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Ubiquitous in most litigation

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Governed by US federal and state rules, foreign law

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Court-imposed penalties for non-complianceCourt imposed penalties for non compliance

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E-Discovery Steps

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Preservation

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Collection

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Collection

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Early Data Assessment

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Processing R i

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Review

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E-Discovery in the United States

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Rules changed to reflect increase in ESI in lawsuits

» Federal Rules of Civil Procedure Amended in 2006

1. Address ESI early through ‘Meet-and-Confer’

2. Privilege issues (inadvertent production, waiver)

3 Discovery of Non Reasonably Accessible ESI Cost

3. Discovery of Non-Reasonably Accessible ESI, Cost-Shifting

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4. Preservation, Form of Production

5. Sanctions

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Learning Seminar

Duty to Preserve ESI

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Legal duty to preserve ESI when litigation known or ‘reasonably anticipated’y p

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Failures result in:

L f id

» Loss of evidence

» High retrieval costs

» Spoliation, sanctions risks

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Sanctions for E-Discovery Failures

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Varies depending on intent, resulting prejudice

» Fines

» Adverse Inference Jury Instruction

St iki f Pl di D f

» Striking of Pleading or Defense

» Dismissal or Default Judgment

» Costs

» All of the Above

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Learning Seminar

Trends in US E-Discovery

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Navigating Cross-Border E-Discovery

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Malpractice

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Malpractice

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Computer-Assisted Review, Predictive Coding

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Cloud Computing M i Bi D t

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Cross-Border E-Discovery

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Must navigate privacy, data laws of other countries

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Conflicting concepts of discovery

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Conflicting concepts of discovery

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Foreign, US laws at odds

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‘Personal data’ protected abroad EU D t P t ti Di ti

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EU Data Protection Directive

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Learning Seminar

Emerging Data Laws in Other Countries

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Asian-Pacific Countries Developing Rules

Japan Privacy Act

–Japan Privacy Act

–Blocking Statutes

–State Secrets Laws

O i ti d i b i i US t bid b US

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Organizations doing business in US must abide by US laws

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Attorney E-Discovery Malpractice

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J-M Manufacturing v. McDermott Will & Emery

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Alleged Mishandling of Electronic Document Review

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Alleged Mishandling of Electronic Document Review

–Failure to Supervise

–Repeated Inadvertent Disclosure of Privileged Documents

Documents

–Vendors Stratify, Navigant Sued

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First of Many?

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Learning Seminar

Rise of Predictive Coding

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Predictive Coding: Automated review of electronic documents based on input from attorney p y

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AKA: Computer-Assisted Review, Intelligent Review, Technology-Assisted Review etc

Technology Assisted Review, etc.

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Da Silva Moore v. Publicis Groupe et. al

–Judicial Approval

Followed by Other Judicial Opinions

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Predictive Coding Continued

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Explosion of Software Tools

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Challenges to Adoption:

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Challenges to Adoption:

–Transparency and the ‘Black Box’

–Difficult to Use D f ibilit C –Defensibility Concerns 13 13 Learning Seminar

E-Discovery in the Cloud

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Organizations Increasingly Using Cloud Systems

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Positives

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Positives

– Lower cost, accessibility, collaboration, storage advantages

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ConcernsConcerns

–Data Security, Inability to Locate Data, Legal Hold Challenges Ability to Produce for Discovery

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Big Data and Information Governance

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Push to Overhaul Electronic Data Management

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Corporations Struggling with High Costs Legal and

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Corporations Struggling with High Costs, Legal and Compliance Issue

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Information Governance Crucial to E-Discovery

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Implementing ‘Defensible Deletion’ PoliciesImplementing Defensible Deletion Policies

–Reduces costs, liabilities

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Presidential Records Management Directive

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Learning Seminar

Role of ACEDS – An Overview

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“Training, Networking, Resources for the E-Discovery Community” y

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1,000+ Members in US, Latin America, Europe and Asia

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Offers Certified E-Discovery Specialist Certification

–Industry StandardIndustry Standard

–Baseline of Competence

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Member Benefits

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Exclusive News, Analysis – Hundreds of Articles at ACEDS.orgg

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On-Demand Web Training

–Webinars with Top Experts, Podcasts, How-To Manuals

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Career Center – Job Postings, ForumsCareer Center Job Postings, Forums

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Discounts on Certification, Conference Attendance

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Learning Seminar

CEDS Certification

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ACEDS Management Has Years of Certification Experiencep

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Built Certified Anti-Money Laundering Specialist (CAMS) Credential

(CAMS) Credential

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CEDS Certification Continued

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Built by Hundreds of E-Discovery Experts

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Tests 15 Areas of Knowledge

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Tests 15 Areas of Knowledge

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145 4-Item Scenario-Based Questions

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Offered at 600+ Testing Centers C tifi f E Di C t

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Certifies for E-Discovery Competence

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Held by 700+ Worldwide y

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Rigorous Exam with 30 Percent Failure Rate

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Learning Seminar

Benefits of CEDS Certification

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Expand Career Options Across Industries, Professions

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Justify Increase In Salary

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Justify Increase In Salary

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Become More Valuable to Litigation, Records Management Team

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Increase Credibility In CourtIncrease Credibility In Court

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Show Employer You’re Qualified to Handle E-Discovery

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Sitting for the CEDS Exam

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Minimum of 40 CEDS Credits Required

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CEDS Credits Calculated by Education Experience

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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 Handlingg

–Training – 1 Credit Per Hour of Training

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Learning Seminar

Organizational Growth

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ACEDS Launched in Early 2010

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1000+ Members on Five Continents

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1000+ Members on Five Continents

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CEDS Professionals in More Than A Dozen Countries

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CEDS Certification Preferred, Made Condition of Employment

Employment

–Ernst & Young Certified 70

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Growth Strategy in Japan

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Networking with Top E-Discovery Organizations in Japanp

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Forming Chapters in Japan, other APAC Countries

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Specialized Training

–Country-Specific Courses Tailored to JapaneseCountry Specific Courses Tailored to Japanese E-Discovery Professionals

Webinars Focusing on Japanese E Discovery

–Webinars Focusing on Japanese E-Discovery