On-Demand Webcast – E-Discovery Case Law Wake-Up Call: No regrets, just lessons learned…
Aired Date: May 3, 2012
Almost half way through the year, 2012 has been filled with instructive e-discovery cases that are providing significant wakeup calls to legal teams. While the themes might be familiar – preservation triggers, cost shifting, cooperation, spoliation, etc. – it’s the holes in the e-discovery process that are causing the alarms to go off.
In this webcast, e-discovery attorneys David Cohen and Elizabeth Fitzwater highlighted the cases creating the biggest buzz in the industry and provided a “no regrets, just lessons learned” overview with key takeaways.
Sample cases included:
- UPDATE: Pippins v. KPMG (S.D.N.Y. Feb. 3, 2012): Preservation responsibilities and the ever changing standard of what is considered proportional
- UPDATE: Race Tires America Inc. v. Hoosier Racing Tire Corp. (3rd Cir. Mar. 16, 2012): Are e-discovery activities considered a taxable copying expense?
- Voom H.D. Holdings LLC v. EchoStar Satellite LLC (N.Y. App. Div. Jan. 31, 2012): State court adoption of the federal Zubulake legal hold trigger, “reasonable anticipation of litigation”
- Da Silva Moore v. Publicis Groupe & MSL Group (S.D.N.Y. Feb. 24, 2012): The predictive coding dilemma
Speakers:
David R. Cohen, Esq., Partner, Reed Smith – Bio
Elizabeth A. Fitzwater, Esq., Counsel, Gibbons P.C. – Bio
Bob Rohlf, Esq., Director of E-Discovery Strategies, Exterro (Moderator) – Bio
Upcoming Webcast – Mock Interview: Techniques to quickly identify relevant ESI when the trigger is pulled
Air Date: May 31, 2012 Time: 1:00PM EST / 10:00AM PST
Like a police officer interrogating a key witness, legal teams have a duty to their clients, both internal and external, to diligently interview all key custodians when the trigger to preserve electronically stored information (ESI) is pulled (a.k.a. when litigation becomes likely). Too often attorneys and the litigation support teams are the sole decision makers when formulating keyword search terms and other discovery parameters in the ESI identification pursuit. In reality, it’s the custodians who usually possess the clues needed to identify and preserve the potentially relevant ESI related to the case.
In this webcast, panelists will discuss how to effectively conduct custodian interviews and equip legal teams with the tools needed for unearthing the vital information required to drive the e-discovery process forward.
Topics that will be discussed include:
- Establishing useful interview questions/techniques for finding important custodian information, including where data is stored, key issues or search terms, additional custodians and other technical specifications
- Ensuring the interview process is accurately documented and integrated with the subsequent legal hold process
- Leveraging the custodian interview process as an educational tool to ensure legal holds, destruction policy suspensions and data privacy/privilege policies are clearly understood and acknowledged
Speakers:
Danuta B. Panich, Esq., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Bio
Kimberly M. Marin, Senior E-Discovery Specialist, The Hershey Company – Bio
David Hartmann, Director of Client Success, Exterro (Moderator) – Bio
“Reasonableness” is Key When Assessing E-Discovery Efforts
By Mike Hamilton, J.D.
Like most procedural laws guided by the Federal Rules of Civil Procedure (FRCP), one’s actions need not be perfect. As Judge Waxse reminded his audience at LegalTech NY 2012, the standard in e-discovery isn’t perfection, only reasonableness. In other words, courts aren’t asking clients to get everything right every time; they’re asking litigants to show that they made a reasonable effort to get it right.
Even with Judge Waxse’s endorsement, the term “reasonable” is loaded with ambiguity that leaves many parties scratching their heads; however, by analyzing case law, the definition of “reasonableness” becomes much clearer. A good example is seen in the recent case, Bradley B. Larsen vs. Coldwell Banker Real Estate Corp (C.D. Ca. Feb. 2, 2012). In this case, the plaintiffs felt that the defendant’s e-discovery efforts were insufficient, alleging that the “Defendants have failed to comply” with the court’s order. Consequently, the plaintiffs filed for a motion to compel a “re-do,” or second production, of the defendants’ electronically stored information (ESI), specifically requesting that a neutral third party “re-collect and process defendants ESI.” Read more
E-Discovery Interview: Ralph Losey (Part 2)
By: Andrew Bartholomew
Last week, we posted Part 1 of my interview with e-discovery expert Ralph Losey. In the second half of our conversation, Losey addressed potential e-discovery rule changes, the advent of computer-assisted review and the emerging role of information science in e-discovery. Following is a recap of our conversation (click the audio link below to listen to the full interview):
Bartholomew: Do you feel that some of the issues in e-discovery should be addressed via rule changes or are there better solutions out there?
Losey: I am not opposed to tweaking the rules. Rule changing is difficult; it’s frustrating. I’ve been involved in the Florida rule changes since 2007, and we still don’t have rules in place, but they’re likely to come soon. It’s the same thing at the federal level. It’s a five to seven year process, and they’re going through the motions now. Many lawyers are very concerned with preservation and perhaps clarifying sanctions, but it’s not going to happen immediately. I think for immediate benefits what people need to do is to understand better the existing rules. There are a lot of rules that are not being followed. People don’t seem to understand that proportionality is not just something that The Sedona Conference invented; it’s not just something that Ralph Losey is out promoting. This is built into the rules going back 40 years. So, there are a lot of things that you can do just by invoking the rules that we already have and using them in a learned and knowledgeable fashion. It’s a lack of training and education, which is a core problem behind the issues we have in e-discovery. There are not enough skilled practitioners in this area. We really need to train more people and train them fast, and that will help us more than rule changes. But I’m not averse to trying every possible solution.
Peck Decision on Use of Predictive Coding Upheld in N.Y. Federal Court and More
Law Technology News: Mark Hamblett reports on the N.Y. Federal Court’s decision to uphold Judge Peck’s groundbreaking predictive coding ruling here
eDiscovery Journal: Consultant Kevin Nichols addresses evolving trends of social media e-discovery here
Inside Counsel: Attorney Matthew Prewitt explains the importance of early preservation demands in e-discovery here
e-Discovery Team: E-discovery attorney Ralph Losey shares some thoughts on the Sedona Conference here
Metropolitan Corporate Counsel: Attorney Tom Barnett is interviewed about the balance of technology and human input in e-discovery here
Law Technology News: Lawyer Joshua Engel reports on an Ohio court ruling on text messages and the fourth amendment here
The e-Discovery Myth: Attorney Dennis Kiker explains why all lawyers need to understand e-discovery rules and processes here
BREAKING NEWS: Da Silva Moore Rulings Affirmed, Deemed “Well Reasoned” by the District Court
By Mike Hamilton, J.D.
Some may read this title and jump to the conclusion that the District Court’s decision to affirm Judge Peck’s ruling in Da Silva Moore v. Publicis Groupe (S.D.N.Y Apr. 26, 2012) means that predictive coding is now the new defensible standard for computer-assisted review; however, those who have read the ruling closely know that is not the case. The district court’s ruling was primarily based on procedural grounds under FRCP Rule 72(a).
For non-dispositive orders, which generally include matters concerning discovery, magistrate judges are given “great deference” and “have broad latitude with respect to discovery issues.” Under 72(a), a district judge may only overturn these orders when it “is clearly erroneous or is contrary to law.” In other words, it’s very rare for a district court to overrule a magistrate judge on discovery issues. Read more
The Effects of the Newly Published E-Discovery Protocol on Federal Criminal Cases
By Mike Hamilton, J.D.
When most people talk about e-discovery, it’s discussed in the context of civil litigation. But with the creation of a new e-discovery protocol regulating e-discovery behavior in federal criminal legal matters, civil law’s long-lost counterpart, criminal law, can no longer be neglected when it comes to e-discovery. Officially titled, “Recommendations for ESI Discovery Production in Federal Criminal Cases,” the protocol is designed to address the emerging problem that electronically stored information (ESI) presents in criminal cases (e.g., social media, email, etc.).
As the protocol states below there are numerous opportunities to streamline the e-discovery process and more effectively utilize resources.
“The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system, which is especially important for the representation of indigent defendants. To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery.” Read more
BREAKING NEWS: Spoliation of Evidence (e.g. Text Messages) Leads to the Arrest of a Former BP Engineer
By Mike Hamilton, J.D.
As reported back in late March (see Repurpose Your E-Discovery Process for Effective Regulatory Inquiries), organizations and their employees are being presented with additional e-discovery challenges when responding to regulatory inquiries outside the civil context, like the risk of criminal charges for obstruction of justice. Kurt Mix, former BP engineer, has become the next e-discovery poster child for non-compliance.
Tuesday, Mix was arrested by the Department of Justice (DOJ) for two counts of obstruction of justice on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater Horizon disaster. According to the FBI’s affidavit,
“Mix deleted numerous electronic records relating to the Deepwater Horizon disaster response…after being repeatedly informed of his obligation to maintain such records and after it became apparent that his electronic records were to be collected by an outside vendor retained by BP’s counsel to collect electronic documents.” Read more
