discovery about discovery joanne lee september 11, 2013

©2013 Foley & Lardner LLP

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Discovery About DiscoveryJoanne LeeSeptember 11, 2013


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The Good Old Days….?


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Longing for the Bankers’ Boxes?

ESI Dramatically Expands the Scope of Discoverable Documents– The “Old” Days of Paper – 15 custodians

@ 2 boxes each = 30 banker’s boxes @ 2,500 ppg. each = 75,000 ppg.

– Today – 15 custodians @ 9 GB per custodian = 135GB @ 65,000 ppg. per GB = 8,775,000 ppg. After filtering/search terms = 1,775,000 ppg.

– Not uncommon to produce more than 5 million pages in sophisticated litigation


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Better Not Change That Wall…


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Risks Are High with Court Sanctions


6Fines, Inferences, and Jail Time, To Name a Few.

Of 69 reported cases in which sanctions were granted in 2012, 44 of them awarded monetary sanctions; 20 gave adverse inferences against the faulty party; 10 precluded evidence; and 5 sanctions granted termination.

Monetary fines ($2.75 million in one case) One magistrate suggested a possible “non-criminal”

two year prison term (district court judge deferred on issue)

Allowing jury to infer that missing documents would prove “guilt”

Public reprimand of all involved counsel (outside counsel and corporate counsel)

Suggestions of a higher standard for “sophisticated” companies


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Standards of What is Required Remain a Moving Target

Case law is being created in cases with “bad facts”

Some groups have attempted to be “ahead of the curve” to define expectations– The Sedona Conference– Federal Judicial Center Handbook

Broad, generalized rules are developing– 2006 Amendments to Fed. R. Civ. P.– 7th Circuit E-discovery Pilot Program


8Before You Take That First Step…


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Tip 1 Talk to your client

– Do not wait until it’s time to bother the CEO about his personal emails and instant messages to get your client involved in your e-discovery plan.

Educate your client about what to expect in a complex litigation involving lots of ESI.

Warn them about how expensive it can get before they get the bill.

Explain that discovery will likely entail a disruption of the normal workday for many people and work with your client to prepare for this.

Allow your client to set the parameters of its involvement. Some GCs want to be part of all the minutia; others do not need to be apprised of every page that goes out (they are busy!).

Provide regular updates on how discovery is going, whether there are any deviations from the budget, or major discovery roadblocks on the horizon.


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Tip 2 Issue an early litigation hold to the relevant

custodians.– Do not wait for an electronic document litigation hold

demand from opposing counsel.– Do not wait until the complaint is filed.

In one mega case involving two behemoths in the electronics industry, the judge sanctioned defendant for waiting until after the complaint was filed to issue litigation hold notices to more than just a handful of employees.

The time to act is when “litigation is reasonably foreseeable.”

– Identify scope of dispute, time frame and involved employees.

– Be overbroad in determining the list of employees who will receive the hold notice and what sources should be preserved.

– Do not adopt an unreasonably narrow interpretation of what might be relevant.

– Schedule a call or meeting so the memo is not overlooked.


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Tip 3 Make sure that you understand the IT system and procedures.

– Determine the options that employees may have to save or store electronic documents.– Does the company use outside servers or cloud computing? Separate schedule for deletion?– Ask each custodian whether he/she uses flash

drives, zip-drives, CDs, home computer, iPads.– DO involve the company’s IT department.– DO NOT forget the officers’ materials.– DOCUMENT DOCUMENT DOCUMENT!


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Tip 4 Retain an independent firm to collect and preserve

electronic files.– Typically provides greater experience and less

susceptible to charge of improper motive if something is lost.

– Take bids from multiple vendors Have estimate of likely amount of data Bids will vary in pricing methodology Need to evaluate costs of initial imaging,

processing, production and storage.– Make sure there are no skeletons in the closet with

the vendor you choose—remember, they may be cross-examined at some point.


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Tip 5 Make Sure To Consider Protective Order.

– A Protective Order will set the parameters necessary in order to protect the confidentiality of proprietary information and clawbacks.

As with ESI Protocol Orders, several district courts have form protective orders that parties can use. See, e.g., http://www.meb.uscourts.gov/Pdf/Confidentiality_Order.pdf

For example of Protective Order, see Handout B.


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And Off We Go….!


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Interrogatories & Doc Requests

Spend time on those instructions and definitions—particularly the definition of “ESI.”

Documents requests can often include the following categories of information:– Organizational structures of IT department– Databases, servers, systems, and applications– All devices used for work purposes (including PCs, laptops,

thumb drives, smartphones, tablets, etc.)– All email addresses (work email, generic email, personal email)– Retention policies– Inadvertent destruction– Preservation generally and specifically in connection with

litigation– Litigation hold– Custodian identification process– Search/collection process– Social media accounts– Backup tapes!!


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Definition of “ESI”


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Objection to Definition of ESI (see Handout C)


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Sample Discovery Requests


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Sample Discovery Requests


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30(b)(6) Notice Rider (see Handout D)


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What’s On The Horizon – Or Maybe Already Here?

Technology Assisted Review (sometimes referred to as “Predictive Coding”)

Email Threading Preservation of Personal Devices

(e.g., smartphones, tablets, etc.) More Scrutiny Of Social Media

Sources


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Closing Thoughts Don’t Panic Remember these three things:

– Judgment– Forethought– Common Sense