technology is the best defense

Technology is the Best Defense:Using eDiscovery Tools to Build Your Case

Moderator: Anita Engles, Vice President Products and Marketing, Daegis

Presenters

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Gail Gottehrer

Partner at Axinn, Veltrop & Harkrider LLP

Cliff Nichols

E-Discovery Counsel, Day Pitney LLP

Technology is the Best Defense

What an eDiscovery “toolkit” can do for you!

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Assess the strengths & weaknesses of a case early on

Evaluate data at the outset to assist attorneys in making recommendations to client

Find “smoking gun” early on can lead to settlement and avoid costs

Group concepts to identify “hot” topics

Utilize technology-assisted review tools to identify the most relevant documents early on


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Class ActionEvaluate the likelihood that a putative class action meets the

requirements for class certification

Class ActionEvaluate the likelihood that a putative class action meets the

requirements for class certification

Employment law (litigation and investigations)Determine if a complaint is an isolated incident or part of a pattern or practice

Employment law (litigation and investigations)Determine if a complaint is an isolated incident or part of a pattern or practice

Compliance MonitoringFind out if procedures are being followed and put audit trails

in place quickly

Compliance MonitoringFind out if procedures are being followed and put audit trails

in place quickly

Internal investigationIdentify key participants and events before litigation ensues

Internal investigationIdentify key participants and events before litigation ensues


WHAT: Identify potential key witnesses

� Why: Helps attorneys prepare for custodian interviews

� Benefit: Confirms information from custodian interviews and resolves inconsistencies between custodian interviews

� How:

o Communication networking tools identify who is talking to who about what

o Concept grouping rapidly identifies evidential key concepts

o Associate e-mail addresses to custodians 5


WHAT: Test litigation theories

� Why: Can be done quickly, at low cost

� Benefit: Time/cost effective way to determine whether to pursue or abandon litigation theories

� How:

o Searching the data, independent of the review

o Trial attorneys can do this on their own to test ideas as they occur to them

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WHAT: Prepare for Rule 26 conference

� Why: Know to suggest at conference what should not be subject to preservation, search or review

� Benefit:o Enables attorney to support burden argument with specific numbers

o Know the scope of your data in advanceo Know the data (types of files, amounts)o Know the results of proposed key word searches to address key word searches requested by opposing counsel at the conference

o Enhance cooperation

� How:o Early case assessment toolso Search analytics

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WHAT: Develop proportionality and cost shifting arguments for discovery motions

� Why: To successfully argue limits on discovery relative to case

� Benefit: Enable attorneys to specify cost of producing additional, marginally relevant data and arguing if requesting party wants it, they should pay for it

� How: o Technology-assisted review tools provide statistical basis for arguing requested discovery is not proportional

o Technology-assisted review tools provide support for argument that requested data is not likely to be relevant

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WHAT: Anticipate and Correct Preservation Deficiencies

� Why: Prevent motions and sanctions

� Benefit: Identify deficiencies in collection practice

� How:o Use timeline analysis to identify holes in the collectiono Use e-mail threading to find missing thread pieces

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WHAT: Monitor review

� Why: o To ensure that reviewers understand the case

o To quickly identify the need for clarification or retraining

� Benefit: o Identify the need for clarification of training so can retrain quickly

o Identify strong reviewers

o Identify number of documents reviewed

o Get automated notice of discrepancies

� How: Generate reports to help monitor the review

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Technology is the Best Defense Toolkit

• Technology-assisted review

• Predictive coding

• Search Analytics

• Concept Grouping/Clustering tools

• Email Threading

• Near Duplicate Detection

• Early Case Assessment tools

• Timeline Analysis

• Communication Analysis/Reporting

• Statistical Analysis Tools

• Reviewer Reporting Analytics

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Q&A

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Gail Gottehrer

Partner at Axinn, Veltrop & Harkrider LLP

[email protected]

Cliff Nichols

E-Discovery Counsel, Day Pitney LLP

[email protected]

Gail L. Gottehrer

Gail is a Partner in the litigation department of Axinn in New York and Connecticut. Her practice focuses on class action defense, management-side labor and employment litigation and other complex commercial matters. She is one of the few defense lawyers to have been involved in the trial of a class action to verdict before a jury.

In addition to her practice, Gail is a Teaching Assistant at Columbia University in the Information Policy and Regulation: Intellectual Property, Ethics and Litigation course in the Master of Science in Information and Knowledge Strategy program. She serves as the Director of the Connecticut Chapter of Women in eDiscovery. She is a member of the Law Technology News Editorial Board and a member of the Claims and Litigation Management Alliance eDiscovery and ESI Publications Committee. Gail is active in The Sedona Conference Working Group on Electronic Document Retention & Production and is part of the drafting team chosen to update its Commentary on Legal Holds. She is also a member of the Board of Directors of the Greater Hartford Legal Aid Foundation.

Gail is a graduate of the University of Pennsylvania Law School and a former Law Clerk to the Honorable Murray C. Goldman, Commonwealth of Pennsylvania Court of Common Pleas, Philadelphia County. She is admitted to practice in New York, New Jersey, Pennsylvania and Connecticut.

(860) 275-8195

Ggottehrer

@axinn.com

Clifford E. Nichols

Cliff Nichols, E-Discovery Counsel, works in the Commercial Litigation department and the White Collar Defense and Internal Investigations practice group. As the firms E-Discovery Counsel he directs all electronic investigation.

Cliff has significant and extensive experience representing financial institutions in connection with insider trading, fraud, SEC compliance and other wrongdoings. Cliff also designs and directs civil e-discovery and government subpoena responses for a wide range of clients including universities, hospitals, private equity firms and manufacturing. Cliff is an appointed Special Assistant Attorney General for a state government.

A regular speaker at e-discovery conferences and events, Cliff is recognized as a leader in the cost-saving and efficient use of predictive coding and other types of Technology Assisted Review (TAR).

Cliff recently worked on a high-profile case for the New Mexico State Investment Council where he and his firm received a favorable judicial decision in their use of technology-assisted review.

Cliff was a legal intern for The Honorable Janet C. Hall, U.S. District Judge, and for The Honorable Barry Garber, U.S. Magistrate. He volunteers with Lawyers for Children America.

cenichols@daypitney.

com