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Case Law Webcast Recap: 2012 resolutions should include exercising of infrequently used e-discovery rules

Created on January 13, 2012


Vice President, E-Discovery

As the clock struck midnight on December 31, 2011, many people made New Year's resolutions. Most of these resolutions were probably along the lines of going on a diet or working out more, but according to our distinguished panel from Exterro's webcast, “2012 E-Discovery Case Law Forecast: Hindsight is 20/20," attorneys should make 2012 resolutions to better exercise the protections and benefits of FRCP discovery rules.

Judge David Waxse, Maura Grossman, Esq., Dennis Kiker, Esq., and Exterro's Bob Rohlf, Esq., presented on important trends from 2011 case law and highlighted some practical e-discovery best practices for 2012. Below is a short recap of the main highlights from this informative and educational session.

FRCP 26(b)(2) – Proportionality

  • Cost-Benefit Analysis: The rule limits "the frequency or extent of discovery" where "the burden or expense of the proposed discovery outweighs its likely benefit."
  • Limited Use by Attorneys: Judge Waxse could “count on one hand how many times attorneys have used the proportionality defense in my courtroom."
  • Preparation: Attorneys must be competent with e-discovery issues and transparent with opposing counsel and the court to effectively make and win this claim.

FRCP 26(g) – Certification of Actions to the Court

  • Production Request/Response: A signature is certification that a reasonable inquiry was taken before or after the discovery request received or made (similar to FRCP 11).
  • What Rule? Majority of lawyers don't even know that this rule exists.
  • Technology: Utilize technology to prove to the court that a defensible reasonable process was taken (i.e. quality checks, sampling of non-responsive documents, etc.).
  • Culture Change: Entrust computers for document review based on it being proven to be more accurate than human review. It will not only save time but also money.

Evidence in the Cloud – Storing Data in the Cloud and Social Media

  • Reasonableness is Key: When storing data in the cloud research and conduct a reasonable inquiry when selecting a cloud service provider.
  • Involve Legal: In-house legal departments need to be privy to discussions around moving data to the cloud because jurisdictional issues that surround privacy may arise.
  • Access to Your Data: When litigation does occur legal teams must have ability to access or retrieve electronically stored information (ESI) for preservation and collection.
  • Social Media:Same rules apply to social media as any other ESI. (Don't tell your client to remove information from their Facebook profile after preservation obligations are triggered – spoliation concerns)

To listen to the webcast and hear what one piece of advice each one of our experts would give for 2012, please click here.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.