THE EDISCOVERY CHALLENGE PRACTICE AND ETHICS Presentation By
THE E-DISCOVERY CHALLENGE: PRACTICE AND ETHICS Presentation By MICHAEL YAGER Director of E-Discovery myager@spottsfain. com / 804. 343. 6173
THE CLASSIC PRACTICE OF LAW
THE CLASSIC PRACTICE OF LAW
THE QUANTUM PRACTICE OF LAW
THE QUANTUM PRACTICE OF LAW
THE QUANTUM PRACTICE OF LAW
E-DISCOVERY – WHAT IS IT? • Discovery has been a part of law for a very long time. What is different today?
The New Challenge
E-DISCOVERY • Federal Rules amended in 2006 to reflect the collection of electronically stored information
FEDERAL COURT DECISIONS • SANCTIONS GROWING EXPONENTIALLY
E-DISCOVERY – WHAT IS IT? • Discovery has been a part of law for a very long time. What is different today?
E-DISCOVERY – WHAT IS IT? • Discovery has been a part of law for a very long time. What is different today?
WHAT IS IMPORTANT TO US?
LEAVING OLD COMFORT ZONES BEHIND
THE NEW LOOK OF LAW
THE SHADOW OF CASES
CASE LAW
CASE LAW
CASE LAW
CASE LAW
CASE LAW
CASE LAW
CASE LAW
CASE LAW
CASE LAW • AN OUNCE OF PREVENTION TO AVOID A POUND OF SANCTIONS: NEW YORK APPELLATE COURT SANCTIONS FAILURE TO PRESERVE DOCUMENTS MONTHS BEFORE LITIGATION IS COMMENCED • By: Nicole Bearce Albano, Esq. and Ryan J. Cooper, Esq. February 16, 2012
CASE LAW
FEDERAL COURT DECISIONS • SANCTIONS GROWING EXPONENTIALLY
E. I. Du Pont De Nemours and Company v. Kolon Industries, Inc. • “Any Level of fault, whether it is bad faith, willfulness, gross negligence, or ordinary negligence, suffices to support a finding of spoliation. ” Judge Robert E. Payne, Senior United States District Judge, Eastern District of Virginia, 4 th Federal Circuit, • July 21, 2011
The e. Discovery Case Management Template The Secret to Project Management Success
FOUNDATION OF AN E-DISCOVERY MATRIX
The e. Discovery Matrix • • • Litigation Hold Key Custodian Interviews (defining the data sets) IT Interview (defining possible data repositories) Preservation in Place, or by Collection (Form of Collection) ECA (Early Case Assessment) Review in Native Processing for Production Privilege Logs
And so the Matrix Begins … The Overview – Master Plan Litigation Hold instruments to the appropriate management/ custodians Scheduling of IT and/or Custodial Interviews to determine repositories of data, harvest information, and reinforce preservation Determine preservation strategy and prepare for Collection of hard docs and of ESI Step 4 Step 3 Step 2 Step 1
And so the Matrix Begins … Collection of hard docs and of Electronically Stored Information Step 5
And so the Matrix Begins … Collection of hard docs and of Electronically Stored Information Cull Down/ECA collected ESI Step 6 Step 5
And so the Matrix Begins … Collection of hard docs and of Electronically Stored Information Cull Down/ECA collected ESI – upload to review platform Attorney Review – attorneys review in native, code for responsiveness and issues, code for redaction on the review platform Step 7 Step 6 Step 5
And so the Matrix Begins … Collection of hard docs and of Electronically Stored Information Cull Down/ECA collected ESI – upload to review platform Attorney Review – attorneys review in native, code for responsiveness and issues, code for redaction on the review platform Production algorithms are run Step 8 Step 7 Step 6 Step 5
RULE 26 CONFERENCE or the equivalent Attempt early agreement between counsel on key custodians and forms of production
THE E-DISCOVERY MATRIX Properly used, it can control and manage the world of ESI – efficiently, productively, and defensibly
Everyone is a Part of the EDiscovery World Awareness that everything you do touches data, and can be in play Awareness that what you do with data can one day become an issue in a different context Awareness that the hint of conflict changes the landscape of your thinking, even if ever so slightly Utilization of the Template – The Matrix – consistently and effectively
ETHICS IN E-DISCOVERY Officers of the Court Code of Conduct Extends to Every Component of Practice Is Perhaps the Greatest Balancing Factor in an E-Discovery World Gone Mad
FUNDAMENTAL FORCES ACCOUNTING FOR MOST ETHICS PROBLEMS A General Lack of Technological Sophistication Over-Zealous Attorney Conduct A Lack of Development of Professional Duties as an Advocate Competence in the Process of E-Discovery
ETHICS REQUIREMENTS ABA Rule 1. 3 Ethics Requires Diligence not possible unless you are competent and actually know what to do and when ABA Rule 3. 2 Lawyers are required to expedite litigation. How can one be fast and efficient if one is at a loss within the field of E-Discovery
ETHICS ABA Rule 3. 4 Fairness “Unfortunately, in e-discovery most attorneys are still stuck in the non-cooperative win/lose discovery battle. They mistakenly think it is their job to not only argue the law and application of the law to the given facts, but also to try to change the given facts, to hide and obfuscate facts they think are adverse to their client. ” Ralph Losey, Esq. Ethics of Electronic Discovery
ETHICS WILL DRIVE E-DISCOVERY REFORM Lawson v. Sun Microsystems, Inc. , 2010 WL 503054 (S. D. Ind. February 8, 2010) Duty to reasonably communicate Duty to abide by a client’s decision Duty to maintain confidentiality of information Duty upon receiving inadvertently produced information Duty upon receiving improperly obtained information from the client or a third party
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