e discovery & ethics
DESCRIPTION
Become aware of common E-Discovery problems and avoid ethical pitfallsTRANSCRIPT
ESI & Ethical ConsiderationsBe aware of problems, then avoid them
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‣ Federal law clerk‣ Big firm lawyer‣ Solo lawyer‣ Weblog author‣ Speaker & consultant
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Ernie Svenson
It’s litigation time
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Do you know where your client’s data is?
A true story
Morgan Stanley
Ron Perelman
$650 Million
Fraud
Prove
Reliance
Damages
Backup tapes
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Oops, we found 1,600 more of them!!!
Judge Maas
“Just assume fraud”“Bad faith...”
Fraud
Trial
Reliance
Damages
$1.4 Billion
E-Discovery?I don’t care
for it.
Hostage to technology
AgendaProblem Too many ones and zeros
Rules
Clients
Ethics
Conflicts
12345
Rules in a knife fight?
High demand, low interest
You’re responsible for everything
Don’t assume anyone knows
Problem 1
65%of emails are never printed out
‣ Paper was easy‣ Paper was safe‣ ESI is everywhere‣ Too many types‣ Too many sources‣ Too easy to replicate
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The “Digital Divide”
Old-fashionedDiscovery
E-discovery increases the cost of litigation by as much as 25%
Costs of discovery
E-Discovery
21General Counsel
E-Discovery?It’s killing me!
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“Litigation habits from the days of paper must be revised.”
–Honorable Lee Rosenthal
Problem 12Rules
Electronically Stored Information (“ESI”)Procedure Rules updated
ESIFederal CtsDec. 2006
MississippiPending
Commonly used termsESI
Native format
Reasonably Accessible
Clawback
.doc, .PST, .xls, .pdf, .???
On hand, easy to get to?
Oops, I sent you privileged info
Metadata
Electronically stored information
Like having X-Ray vision
Key court casesZubulake
Morgan Stanley
Qualcomm
Backup tapes are expensive
Coming up
Who pays for e-discovery?
Problems 1
3ClientsRules 2
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Thou shalt meet & confer
“it’s more important to ask the right questions than to know the right answers –Craig Ball
Craig Ball
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‣ 50 Questions to ask at a Meet & Confer
‣ Google that phrase
Client TrialIdentify Discovery
‣ Issues?
‣ Witnesses?
‣ Exposure?
‣ Timefame?
‣Preserve data
‣ IT guys?
‣ Native format?
‣ Where’s data?
‣Preserve data
‣ Respond
‣ Seek
‣Forms?
‣ Avoid adverse Inference!!!
accounting always for ESILitigation flowchart
If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms
Requests for Production
“does not specify”
If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms
Requests for Production
1.“ordinarily maintained”
If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms
Requests for Production
2.“reasonably usable”
Problem 1
4Ethics
Rules 2Clients 3
‣ Actively oversee‣ Supervise (Rule 5.3)‣ Not obstruct (Rule 3.4)‣ Be diligent (Rule 3.4)‣ Guard client secrets
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Duties of lawyers
Failure to communicate leads to disaster
Why is key data so hard to gather?
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Key data
Client Lawyer
Vendors
‣ Client doesn’t want to look for data
‣ Lawyer tends to rely too much on client & vendor
‣ Vendor has to cater to lawyer; has no access to client
The problem
QualcommPatent InfringementFiled: 2005Tried: 2007Cross exam: what emails?
300,000 pages requestedbut never produced
Conclusion: intentionally withheld
Result? $ 8.5 Million
‣ “incredible communications breakdown”
‣ Attys didn’t pay attention to collections procedures
‣ But no bad faith; so no sanctions
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Judge Major: “major errors”
Problem 1
5Conflicts
Rules 2Clients 3Ethics 4
‣ Suggest options‣ Preserve data‣ Help with search‣ Report illegal content‣ Forensics?
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Duties of vendors
‣ Gather data properly?‣ Keep attorney
informed?‣ Blame attorney when
something goes wrong.
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Duties of clients?
‣ Understand digital technology
‣ Anticipate problems‣ Remain paranoid‣ Learn more about
technology47
Real duties of attorneys
‣ Beware of what you agree to
‣ Digital data: elusive & pervasive
‣ Ignorance happens‣ Assume it’s you
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Key takeaways
