ABA Techshow Day 2 -EDiscovery from the front lines
Browning Marean pointed out that the Qualcomm case is a good place to start discussing the dangers. Mess up discovery and your firm can be sanctioned, you can be sanctioned, etc. There’s real danger in not handling evidence correctly.
Judge Facciola “I re-read the Qualcomm case the other night, closed it and thanked God that I’m a judge now”
Lexis has a nice list online of what the states are doing in comparison to the Federal Rules of Civil Procedure.
E-Discovery is becoming more important in domestic cases; spousal email, banking records, even GPS tracking data. (I’m so glad to be happily married..*L*)
Browning points out that they are working more on litigation readiness with clients, getting them ready to handle potential litigation in the future. Unfortunately, it usually takes a corporate disaster like Qualcomm or Morgan Stanley to get people’s attention.
Sharon Nelson: “As storage got cheaper we simply moved all our garbage to a larger hard drive” Amen!
Many firms are using e-discovery to bully smaller opponents, adding to their costs to the point where they are desirous of settling rather than going to that expense. There are ways to do it without spending a fortune though. Review tools are getting more complex, more powerful, outsourcing can help limit your costs, etc.
Keyword searching may be on it’s last leg, moving to conceptual searching, but the expense of conceptual searching tools keeps it limited to large cases right now. There needs to be more transparency in how the searching is done, but some claim the searching techniques as attorney work product, which just leads to more disputes.
Judge: I need you to bring some expertise to the courtroom, so I can understand how you got what you got. Expects there to be a need to move away from adversarial discovery toward collaboration.
Attorneys have clear duties, to learn their clients technology, handle litigation holds, document everything, and educate clients on the importance of the process.
If you are doing something clearly illegal, dangerous, or have people complaining about sexual discrimination, you already have a reasonable anticipation of litigation.
Plan First. Have Litigation hold plan, lit hold team, and set of official procedures. (I think it’s much easier to design this well before you have to..)
Sharon: Your team needs management without management buy in you’re nowhere. You need IT folks, and may need forensic and discovery certified experts to work with IT instead of letting them do it themselves.
Browning: Be careful dealing with IT folks, it’s like talking to teenagers, they don’t speak the same language as you do, and they are pack rats, it’s part of their job to be able to restore data whenever someone looses it. They tend to keep it in all kinds of odd places. (Only after this did he ask if there were IT people in the audience, and asked us to keep it quiet, told him it’s already posted..*L*)
Sharon: develop checklist of what you need to know about your client’s technology, and talk to the right people. Decide on your key people, dates, data types, etc. so you’re taking a smaller first salvo. Save costs by going after the very core of what you need up front. Get all the relevant policies up front so you know how things are done regularly. (Email and internet usage, employee termination procedures, remote access, disaster recovery plans, etc.)
The world is moving to native production. It’s cheaper, saves you processing costs, but it can complicate things that you don’t have the native program for, in which case you ask for mixed.
Do not have to disclose ESI that is inaccessible because of undue burden or cost. This is one area that is highly litigated. Backup tapes may be inaccessible, but if you could use them to grab an email for the CEO then they really aren’t unduly burdensome. It’s still pretty unclear, and according to the judge it really comes down to what tech is available and whether the data is worth the cost and time. The variables in this analysis change constantly.
Court will not permit a party who failed to preserve to complain about the inaccessibility of the only remaining copy of that ESI. (I get the feeling judges don’t look too kindly on people who don’t get this right, see the start of this post..)
Browning wants the bloggers to note that he recanted the teenager/IT folks comment..*L*
More later, headed to some vendor booths!
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