ethics and ediscovery: implementing cost effective ...stephanie thompson is senior litigation...

Ethics and eDiscovery: Implementing Cost Effective Strategies to Avoid Being

Sanctioned or Sued 2019 CLE by the Sea

Presented by: Stephanie Thompson, Starn O’Toole Marcus & Fisher

February 11, 2019 Prince Waikiki |Honolulu, Hawaii

CLE# 2019-001 *1.0 Ethics CLE Credit

*1.0 Ethics/Trial Practice – GA | 1.2 Ethics Credits - CO

Ethics and eDiscovery: Implementing Cost Effective Strategies to Avoid Being Sanctioned or Sued “…attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to eDiscovery, including the discovery of electronically stored information (“ESI”)…See ABA Model Rules of Conduct for eDiscovery – (Rule 1.1, Rule 3.3 and Rule 3.4)Courts expect attorneys to actively supervise and understand the management and production of electronically stored information (“ESI”) from start to finish. Changes in the rules of civil procedure and professional conduct ascribe a duty on attorneys to understand and manage the

collection and production of ESI, no matter how technical. Ms. Thompson’s presentation will identify the 3 common areas where lawyers and their firms fall short in their ethical duties in the eDiscovery process (as identified in recent case law and ethics opinions) and provide practical tips and tools for avoiding sanctions and costly mistakes. Stephanie Thompson is senior litigation counsel at the law firm of Starn O’Toole Marcus & Fisher. She focuses her practice in the areas of complex business litigation, collection issues, construction defects claims and eDiscovery practice. Ms. Thompson graduated from the William S. Richardson School of Law at the University of Hawaii in 2005. Upon graduating, she clerked at the Circuit Court of the First Circuit, State of Hawaii for the Honorable Victoria S. Marks (Ret.). Since, 2016, Ms. Thompson developed and taught the first eDiscovery course at the UH Law School. She has been a guest on Hawaii Public Radio's The Conversation, and Think Tech Hawaii’s Life in the Law program discussing eDiscovery issues related to using a "Bring Your Own Device" policies. Ms. Thompson has been a “co-chair” of the HSABA’s Trial Academy since 2014 and has served as a past president and board member of the HSBA’s Litigation Section.

Ethics and E-Discovery: Implementing Cost Effective StrategiesTo Avoid Being Sanctioned or Sued

Stephanie E.W. ThompsonCLE by the Sea

February 11, 20199:45 a.m. – 10:45 a.m.

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CLE by the Sea Feb 2019Stephanie Thompson Page 2

Key E-Discovery Terms

Algorithm: Automated procedures computers follow to solve problems. Big Data: A buzzword for the vast data sets produced by users of modern technology

(including emails, PDFs, cell phone metadata, search engine returns, text messages, andso on) and the analytics used to evaluate this data.

Clawback Agreement: An agreement that protects against waiver of privilege and/orwork production protections when inadvertent production occurs. See Fed. R. Evid. 502.(Exemplar included).

Custodian: The person responsible for the physical storage and protection of records. Acustodian also includes persons with knowledge with knowledge and/or possession of,or who created, sent, received and/or stored emails, documents and other data relevantto an ongoing or potential dispute.

Deduplication (“Deduping”): The process of comparing electronic records and removingor making duplicates within the data set. Deduplication can be done within custodians,but is most commonly done across the corpus of the data.

Duty to Preserve: Duty arising under state and federal law, upon reasonableanticipation of litigation, to preserve documents, electronic records and data, and anyother evidence or information potentially relevant to a dispute.

Electronically Stored Information (“ESI”): Information that is stored electronically(regardless of the media or original formatting as opposed to hard copy/paper.

Family: Used to identify related documents, typically when referring to emails andattachments. The email is typically referred to as the “parent” and the attachment asthe “child.”

Litigation (or Legal) Hold: Term used to describe communications issued on notice of aduty to preserve that instructs individuals and entities in the efforts required to ensureadequate preservation of potentially relevant information or evidence.

Metadata: Data that describes and gives details about the ESI, or in other words: dataabout data. A duty to preserve includes ESI and its metadata.

Native Format: An electronic document’s original form, as defined by the applicationthat was used to create the document. Sometimes documents are converted from theirnative format to an imaged format, such as TIFF or PDF. In its converted format, themetadata for that electronic document cannot be read.

OCR: Short for optical character recognition, a technology that allows scanneddocuments to become searchable on a computer.

PDF: Stands for “Portable Document Format” and is a file format that provides anelectronic image of text or text and graphics.

Predictive Coding: Advanced programming that uses algorithms to flag relevantdocuments during the review process. But humans are still necessary because the

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program must be “taught” which documents are important by having a reviewer siftthrough an initial “seed set” of documents. The program can then analyze a much biggerset of documents without human intervention.

PST: Stands for a “Personal Storage Table” and is an open proprietary file format usedto store copies of messages, calendar events and other items within Microsoft softwaresuch as Outlook and MS Exchange.

Scrubbing: A process by which an electronic document is cleansed of its metadata Spoliation: The destruction of evidence and information that may be relevant to

ongoing or reasonably anticipated litigation, audit or investigation. TAR: Stands for “Technology Assisted Review” is also sometimes referred to as

predictive coding where the review software electronically classifies documents (ESI)based on input form expert reviewers, in an effort to expedite the organization andprioritization of document collection, review and production.

TIFF image: Stands for Tagged Image Fill Format and is a file format primarily used forgraphics and images.

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Things to Consider When Selecting An E-Discovery Vendor

1) Online v. In-HouseWill you be bringing the review process and software in-house, behind the fire-wall andstored on your server? Or will you be needing to use a third-party vendor to host thedata?In-house: Pros: standardization and control, with costs passed through to client

Cons: significant up-front costs in software, training and storage.Online: Pros: convenience, flexibility, staff support, PMs and collection

Cons: storage expenses, problems with scalability, costs.

2) System Functionalitya. Tag, Code and/or Annotate Documents. The system should allow you to create

your own coding scheme and apply it to the documents. Some questions to ask:

i. Can the administrator add codes as needed?

ii. How many codes can be used?

iii. Can emails be coded separately from their attachments or are the boundtogether?

iv. Can we do batch coding of, or batch delete coding from, a large group ofdocuments?

v. Does the system provide tools or safeguards against inconsistent coding?

vi. Can you dedupe with the same code? If so, is there a way to apply anexception to a particular document(s), and how are family sets handled?

vii. Can you enter attorney notes, and are they searchable?

viii. Can documents be highlighted?

ix. Can documents be easily redacted online?

b. Search. Must allow basic Boolean or other Robust searching of text andmetadata and be able to sort results by date, custodian, subject line, etc.

c. Organizational Tools. Ease and simplicity of creating logical sets of documents tobatch for review.

d. Can the platform hand ESI and paper docs OCR’d into the platform?e. Redactions and highlighting. Can these be done online? How are they done?

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f. Production. Can the vendor handle TIFF and Native productions? What aboutBates-ing the documents? Turnaround time re production? How are productionsets accessed and monitored? How are native productions numbered?

g. Printing and Batch Printing. The system should have some functionality to printand/or share documents offline. Be sure to understand what capabilities youhave available and any limitations or possible hardware or softwarerequirements.

h. Reporting. What types of reports can be generated? At a minimum, a systemshould provide:

i. Daily User Productivity report that tracks volume of documents reviewedand tagged by each reviewer.

ii. Daily Documents Reviewed report to monitor volume of documentscompleted and volume remaining.

iii. Data reports breaking out the review data by multiple criteria: custodian,date range, recipients, etc.

iv. Search term frequencies reports.

v. Production tracking reports.

vi. Privilege Log creation.

vii. Chain-of-Custody reports.

i. Considerations re Joint Defense. If you are part of a joint defense group, youneed to assure that the vendor you select can handle multiple parties andprovide effective security to the data being used by multiple parties.

j. Miscellaneous Features. Other review features that are not necessarily essentialare:

i. Hit highlighting

ii. Concept search

iii. Email threading

iv. Email visualization tool

v. TAR 1.0 or TAR 2.0

3) Make sure you understand the following:a. Security-- With the increase of cyber-attacks on the rise, proper information

governance is one of the most important attributes an eDiscovery vendor canpossess. Some things to look for are:

i. how are they preserving your dataii. Are they making multiple copies of your data (pristine and working)

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iii. Are they placing your hard copies into a secured facilityiv. Most importantly, are they at least SOC 2 certified.

b. Software. What licensed technology software do they provide (Software-as-Service or SAS)

c. Support. When working with strict laws and regulations that enforce deadlinesand attention to detail it is imperative that you choose a vendor with multiplelayers of support. Some considerations here include:

i. How available are the vendor’s employees during non-business hoursii. How are cases staffed

iii. Who are the points of contactiv. How are issues escalated

d. Scope of Service. Find a vendor that is scalable and has the resources andcapabilities to perform multiple services. Some of these services include.

i. Hostingii. Consulting

iii. Project Managementiv. Collectionv. Data Analytics

vi. Digital Forensicsvii. Managed Review

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Additional Resources

Sedona Conference: Founded in 1997, The Sedona Conference is a nonprofitresearch and educational institute dedicated to the advanced study of law and policyin the areas of antitrust law, complex litigation, and intellectual property rights.

Sedona Best Practices Commentaries include:o The Sedona Principles: Best Practices, Recommendations & Principles

Addressing Electronic Document Productiono Commentary on Proportionality in Electronic Discoveryo Primer on Social Mediao Cooperation Proclamation: Resources for the Judiciaryo Commentary on Ethics & Metadata

All of the commentaries are free and accessible athttps://thesedonaconference.org/publications

Electronic Discovery: Glossary of 123 Commonly Used Terms by Lane Powell PC,https://www.lanepowell.com/Our-Insights/122112/Electronic-Discovery-Glossary-of-123-Commonly-Used-Terms

“Ball in Your Court”: Blog by Craig Ball, noted eDiscovery leader, commentator andlawyer. See https://craigball.net

{ride the lightning}: Blog by Sharon D. Nelson, lawyer and eDiscovery & InformationSecurity specialist and podcast host. https://ridethelightning.senseient.com/

“e-Discovery Team® Blog by Ralph Losey, attorney and long-time eDiscovery writer,thinker and commentator. https://e-discoveryteam.com/

Federal Rules of Civil Procedure, with 2015 FRCP Amendments, Notes andCommentary (sample available athttp://www.uscourts.gov/file/document/congress-materials. )

U.S. District Court for the Northern district of Californiahttp://www.cand.uscourts.gov/eDiscoveryGuidelines

Law Technology Today: How to Use a Rule 26(f) Conference to Cut Discovery Costsand Disputes - http://www.lawtechnologytoday.org/2015/02/use-rule-26f-conference-cut-discovery-costs-disputes/

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK.

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RULE 502(d) ORDER

ANDREW J. PECK, United States Magistrate Judge:

1. The production ofprivileged or work-product protected documents, electronically

stored information ("ESI") or information, whether inadvertent or otherwise, is not a waiver of the

privilege or protection from discovery in this case or in any other federal or state proceeding. This

Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence

502(d).

2. Nothing contained herein is intended to or shall serve to limit a party's right to

conduct a review of documents, ESI or information (including metadata) for relevance,

responsiveness and/or segregation of privileged and/or protected information before production.

SO ORDERED.

Dated: New York, New York[DATE]

Andrew J. PeckUnited States Magistrate Judge

Copies by ECF to: All Counsel.Judge

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Ethics and E-Discovery:Implementing Cost Effective

Strategies to Avoid BeingSanctioned or Sued.

Stephanie ThompsonMonday, February 11, 2019

CLE by the Sea

OVERVIEWWhat is the problem?

Identify the three main areas whereattorneys and law firms consistentlyfall short in their professional duties.

Provide practical solutions and tools toavoid adverse outcomes.

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THE PROBLEM

•In 1999, 93% of allinformation generated was indigital format.1

•Every 2 days, we create as much information as we did fromthe beginning of time until 2003. 2

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THE PROBLEM

By the time you finish reading this sentence, there willhave been 219,000 new Facebook posts, 22,800 newtweets, 7,000 apps downloaded, and about $9,000worth of items sold on Amazon… depending on yourreading speed, of course.

THE PROBLEM

•By 2020, business-generated content on the internet will likelyexceed 240 exabytes daily (an exabyte is 1 billion gigabytes).3

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THE PROBLEM

THE PROBLEM

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“E-DISCOVERY IS NO MORE, AND NO LESS, THANDISCOVERY TODAY.”

- Hon. James M. Rosenbaum, U.S.D.C Magistrate Judge, Districtof Minnesota, eDiscovery for Corporate Counsel § 1:7 (2017)

THE “IOT”

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Jon Palmer,Asst. Gen.

Counsel, 23Nov. 2013 Less than 1% of cases

go to trial

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THE COSTS OF DISCOVERY

•Over 20 million civil cases are filed eachyear.

•The costs in the U.S. for civil lawsuitsapproximates $200 billion.

•20-50% of all litigation costs are incurredto perform discovery.

Source: http://blog.logikcull.com/estimating-the-total-cost-of-u-s-ediscovery

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CASE LAW DETERMINING AN ATTORNEYS’ DUTIES

Zubalake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y.Oct. 22, 2003)(“Zubulake IV”)

DaSilva Moore v. Publicis Groupe, 2012 WL 607412(S.D. N.Y. 2012); (Peck, M.J.).

HM Electronics, Inc. v. R.F. Technologies, Inc., No.12CV2884-BAS-MDD, 2015 WL 4714908, at *3 (S.D.Cal. Aug. 7, 2015), vacated in part, 171 F.Supp.3d1020 (S.D. Cal. 2016).

Zubalake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y.Oct. 22, 2003)(“Zubulake IV”)

Counsel and the parties have aduty to preserve “ . . . when theparty has notice that theevidence is relevant to litigationor when a party should haveknown that the evidence may berelevant to future litigation.”

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Zubalake

Place the Litigation Hold

Locate & Preserve RelevantInformation?

Ensure Preservation

Respond & Produce

Supplement & MonitorRelease

SUMMARY OF THE 2015 FRCP AMENDMENTS

•Rule 1 - Cooperation

•Rule 16 – Enhanced Case Mngmt

•Rule 26 – Amended Scope of Disc.

•Rule 34 – Specificity of Objections

•Rule 37 – Preservation Sanctions

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SUMMARY OF THE STATE THAT HAVE ADOPTED THE2015 FRCP AMENDMENTS

•Substantially adopted: Arizona, Colorado and Wyoming

•Considering: Florida, Kansas Mississippi, Oklahoma•Uses own standards/language: Conn. Del., Georgia, Illinois,Missouri, Nebraska, Nevada, New Hampshire, New York,Penn., Rhode Island, Texas, Utah, and Washington•No Special ediscovery rules – Kentucky, So. Dakota,and West. Virginia.

Remaining 27 states follow 2006 FRCP Amendment

PROFESSIONAL DUTIES

Competency (Rule 1.1)

Communication (Rule 1.4)

Confidentiality (Rule 1.6)

Cooperation (Rule 1.6)

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COMPETENCY - HRPC 1.1

Rule 1.1. COMPETENCE.A lawyer shall provide competent

representation to a client. Competentrepresentation requires the legal knowledge,skill, thoroughness, and preparationreasonably necessary for the representation.

In 2012 the ABA changed Comment 8 to the ModelRule 1.1 to make clear that lawyers have a duty to becompetent in technology

Maintaining CompetenceTo maintain the requisite knowledge and skill, a lawyershould keep abreast of changes in the law and itspractice, including the benefits and risks associated withrelevant technology, engage in continuing study andeducation and comply with all continuing legal educationrequirements to which the lawyer is subject. (Emphasisadded.)

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CALIFORNIA FORMAL ETHICS OPINION NO. 2015-193PROVIDES:

“Attorneys who handle litigation may not ignore therequirements and obligations of electronic discovery.Depending on the factual circumstances, a lack oftechnological knowledge in handling e-discovery may renderan attorney ethically incompetent to handle mattersinvolving e-discovery . . . even where the attorney mayotherwise be highly experienced. It also may result inviolations of the duty of confidentiality, notwithstanding alack of bad faith conduct.”

STATES THAT REQUIRE A LAWYER TO BE TECHCOMPETENT

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35 STATES NOW REQUIRE A LAWYER TO BE TECHCOMPETENT UNDER RULE 1.1

• Alaska• Arizona• Colorado• Florida• Idaho• Kansas• Montana• New Mexico• Oklahoma• Pennsylvania• Tennessee• Utah

CANADA PROPOSES CHANGES TO ITS MODEL RULE

Proposed Comment 5A to Rule 3.1-2 would provide thefollowing:“To maintain the required level of competence, a lawyershould develop and maintain a facility with technologyrelevant to the nature and area of the lawyer’s practiceand responsibilities. A lawyer should understand thebenefits and risks associated with relevant technology,recognizing the lawyer’s duty to protect confidentialinformation set out in section 3.3”

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How Competent Do I Need to Be?

It depends ….

California Formal Ethics Opinion NO. 2015-193

[T]he duty of competence requires an attorney to assess hisor her own e-discovery skills and resources as part of the

attorney's duty to provide the client with competentrepresentation. If an attorney lacks such skills and/orresources, the attorney must try to acquire sufficient

learning and skill, or associate or consult with someone withexpertise to assist.

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California Formal Ethics Opinion NO. 2015-193The Nine Tasks Any Competent Attorney Should Be Able

to Perform Him/Herself or with Competent Help

• Initially assess e-discovery needs and issues, if any;

• Implement/cause to implement appropriate ESIpreservation procedures;

• Analyze and understand a client’s ESI systems andstorage;

• Advise the client on available options for collection andpreservation of ESI;

California Formal Ethics Opinion NO. 2015-193The Nine Tasks Any Competent Attorney Should Be Able

to Perform Him/Herself or with Competent Help• Identify custodians of potentially relevant ESI;• Engage in competent and meaningful meet and confer

with opposing counsel concerning an e-discovery plan;• Perform data searches;• Collect responsive ESI in a manner that preserves the

integrity of the ESI; and• Produce responsive non-privileged ESI in a recognized

and appropriate manner.

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FRCP Rule 26(g)

Failure to Implement a Lit. Hold

FRCP Rule 26(f)

HM Electronics v. R.F. Technologies, 2015 WL4714908 (S.D. Cal. Aug. 7, 2015)

Rule 26(g)


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HM Electronics v. R.F. Technologies, 2015 WL4714908, *21 (S.D. Cal. Aug. 7, 2015)


“Attorneys have a duty to effectively communicate a ‘litigationhold’ that is tailored to the client and the particular lawsuit, sothe client will understand exactly what actions to take orforebear, and so that the client will actually take the stepsnecessary to preserve evidence. ”


Defendants' attorneys allowed the attorneys andvendors handling the ESI production to use limitingsearch terms, such as the word “confidential,” whichwas part of every email sent from Defendant to another,to justify withholding as privileged and without furtherreview, more than 150,000 pages of ESI that were notprivileged nor identified in a privilege log. The courtsanctioned Defendants and their attorneys.

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Defendants' attorneys failed to produce over 375,000pages of ESI until well after the close of discoverybecause they failed to perform quality control checks orto supervise their ESI vendor.

The Court sanctioned the Defendants by awardingPlaintiff ALL of its attorneys’ fees and costs incurredduring the two years of discovery.


Attorneys signed certifications per Rule 26(g) specificallystating that certain documents did not exist—even thoughthey did; and stating that certain events did not occur—eventhough Defendant knew that they did. Attorneys did notconduct the reasonable inquiry as required and weresanctioned.

FRCP Rule 26(g)

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The point of Rule 26(g) is to hold someone personallyresponsible for the completeness and accuracy of discoveryresponses. Rule 26(g) requires a signature by a party or itscounsel on discovery responses and objections, certifying “thatto the best of the person's knowledge, information, andbelief formed after a reasonable inquiry” the response orobjection is “consistent with these rules and warranted byexisting law” and “not interposed for an improper purpose,such as to harass, cause unnecessary delay, or needlesslyincrease the cost of litigation.

FRCP Rule 26(g)

The requirements of Rule 26(f) impose duties to cooperate

FRCP Rule 26(f)

At the Rule 26(f) Conference parties are to confer re theirclaims and defenses and, among other things, “discuss anyissues about preserving discoverable information; and developa proposed discovery plan.”

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SEC v. Collins & Aikman Corp. 2009 WL94311 (S.D.N.Y. Jan. 13, 2009)

Be careful what you ask for …Tingle v. Hebert, No. 15-626-JWD-EWD, 2017 U.S.Dist. LEXIS 88936 (M.D. La. June 8, 2017).

In this wrongful termination case, Plaintiffsought to compel Defendant to produce “all”texts and emails he exchanged with “any formeror current [Defendant] employee.” He alsorequested “all text messages sent or received”from his boss’s work-issued cell phone.Applying the proportionality standard the courtfound it to be a “fishing expedition” and limitedproduction to only the timeframe of the allegedretaliatory period and denied fees/cost re theMotion.

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COMMUNICATION -HRPC RULE 1.4

(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which

the client's consent after consultation, as defined in Rule 1.0(c), is required by these Rules;(2) reasonably consult with the client about the means by which the client's objectives

are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for information;(5) consult with the client about any relevant limitation on the lawyer's conduct when

the lawyer knows that the client expects assistance not permitted by the Rules ofProfessional Conduct or other law; and

(6) promptly inform the client of a written offer of settlement in a civil controversy or aproffered plea bargain in a criminal case which the lawyer receives.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit theclient to make informed decisions regarding the representation

HM Electronics, supra (citing Zubalake IV)

Place the Litigation Hold

Locate & Preserve RelevantInformation?

Ensure Preservation

Respond & Produce

Supplement & MonitorRelease

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The Litigation Hold Letter

To clients and opposing parties

When there is a “triggering” event

ZUBULAKE IV . . .

“ . . . when the party has noticethat the evidence is relevant to

litigation or when a party shouldhave known that the evidence may

be relevant to future litigation.”

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LABOR/EMPLOYMENT SUIT-FAILURE TOPROVIDE ACCOMMODATIONS AND

WRONGFUL SUSPENSION

Suspended on 12/7/11 formishandling of calls, etc.

Filed first complaint withDept. of Empl. in Sept. 2012

Sent a demand letter in Dec.2012

Filed a complaint in July2013

DELGIACCO V. COX COMMUNICATIONS,INC., 31 A.D. (BNA) 1418 (2015)

Filed first complaintwith Dept. of Empl.in Sept. 2012

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PATENT INFRINGEMENT CASE

Received information re Plaintiff’sclaims in Feb 2005 Demand letter.

Plaintiff had previously suedother computer mfrs and wasawarded “billions” in 1999 for asimilar lawsuit.

Filing of complaint againstcomputer mfr in 2006

PHILLIP M. ADAMS & ASSOC, LLC V. DELL,INC. 621 F.SUPP.2D 1173 (2009)

When Plaintiff settled his first class actionlawsuit for $2.1 billion against Toshiba in1999, computer manufacturers “weresensitized to the issue.” Defendant shouldhave been preserving since that time.

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GENDER DISCRIMINATION SUIT

Conversations with HR Rep reconcerns over possible genderdiscrimination in Summer1983.

Plaintiff filed EEOCcomplaint in November1983

CAPELLUPO V. FMC CORP. 126 F.R.D. 545(1989)

When HR Rep brought it to the attention ofsupervisors/managers.

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Document

Document

Document

https://thesedonaconference.org/publication/The%20Sedona%20Conference%20Commentary%20on%20Legal%20Holds

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DUTY TO COMMUNICATE & CONFIDENTIALITY

CONFIDENTIALITY - HRPC 1.6

(a) A lawyer shall not reveal confidentialinformation relating to the representationof a client unless the client consents afterconsultation, the disclosure is impliedlyauthorized in order to carry out therepresentation, or as stated in paragraph(b) or (c).

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REMEMBER: THE PROBLEM

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INADVERTENT DISCLOSURE

When made in a federal proceeding or to a federal officeor agency, the disclosure does not operate as a waiver in afederal or state proceeding if:

INADVERTENT DISCLOSURE

the disclosure is inadvertent;

the holder of the privilege or protectiontook reasonable steps to preventdisclosure; andthe holder promptly took reasonable

steps to rectify the error, including (ifapplicable) following FRCP 26(b)(5(B).

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HRCP RULE 26(b)(5) (B)Information Produced. If information produced in discovery is subjectto a claim of privilege or of protection as trial-preparation material,the party making the claim may notify any party that received theinformation of the claim and the basis for it. After being notified, aparty must promptly return, sequester, or destroy the specifiedinformation and any copies it has; must not use or disclose theinformation until the claim is resolved; must take reasonable stepsto retrieve the information if the party disclosed it before beingnotified; and may promptly present the information to the courtunder seal for a determination of the claim. The producing partymust preserve the information until the claim is resolved.

INADVERTENT DISCLOSURE - HRCP

Totality of the Circumstances Test and considers thefollowing factors:

“(1) the reasonableness of precautions taken to preventdisclosure; (2) the amount of time taken to remedy the error; (3)the scope of discovery; (4) the extent of the disclosure; and (5) theoverriding issue of fairness.”

Sunset Beach Coalition v. City & County of Honolulu,102 Hawai‘i 465, 78 P.3d 1, 22 (Haw.2003).

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WELLS FARGO—EVERY ATTORNEYS’ NIGHTMARE

Mill Lane Mgmt., LLC v. Wells Fargo Advisors, LLC

WELLS FARGO—EVERY ATTORNEYS’ NIGHTMARE

Mill Lane Mgmt., LLC v. Wells Fargo Advisors, LLC

Produced 1.4 GB files (on CD Rom) with copiousspreadsheets that included customers’ names & SSNs,paired will all financial data.

One file viewed by the NY Times showed “details on theholdings of a well-known hedge fund billionaire” whohad at least $23 million invested with the bank.

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THE CLAWBACK

THE RULE 502(d) ORDER

“Take notes: In my view, it is akin tomalpractice not to consider having a502(d) order.” Magistrate Judge AndrewPeck (Ret.) S.D.N.Y.

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FIRST TECHNOLOGY CAP., INC. v. JPMORGANCHASE, 2013 WL 7800409 (E.D. Ky. 2013)

• the disclosure was inadvertent;

• BUT the attorney did NOT takereasonable steps to prevent disclosure

PROTECTIVE ORDERS/AGREEMENTS

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BEST PRACTICES/TAKE-AWAYS

Being proactive at the early stages of discovery iscrucial for minimizing litigation risk and avoiding costlyand unnecessary discovery disputes

Working with opposing counsel and clients early inthe case to identify and resolve potential ESI issuescan help reduce motion practice and protractedlitigation. Develop a discovery plan.

BEST PRACTICES/TAKE-AWAYS (cont.)

Entering into clawback agreements or protective ordersbefore discovery is exchanged offers further protectionagainst waiver from inadvertent disclosure

When it doubt—get competent help, and get it early!

Insist on early discovery conference (terms, custodians,format, production, privilege and)

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BEST PRACTICES/TAKE AWAYS (cont.)

Having sound methodologies for identifying andcapturing potentially privileged ESI

Document everything so that it is defensible

Finally, when all else fails, if privilege docs do slipthrough, it is critical not to delay!!

QUESTIONS?

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A WORD ABOUT METADATA

In the Non-Discovery Context – when lawyers send orreceive information (i.e. communications) containingmetadata.

In the Discovery Context- when lawyers send, produceor receive ESI containing metadata in response to adiscovery request or subpoena

QUESTIONS/CONSULTING

STEPHANIE THOMPSON733 Bishop St. Ste 1900

Honolulu, HII 96813808-537-6100

[email protected]

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