(webinar slides) how to use ediscovery in your small firm practice
TRANSCRIPT
How to Use eDiscovery in Your Law Practice
#eDiscovery
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Kelly Twigger, Esq.‣ Principal, ESI Attorneys LLC‣ Creator, eDiscovery Assistant™ virtual
consultant ‣ Author, Electronic Discovery and Records
and Information Management Guide, West, 2015-16 ed.
‣ eDiscovery counsel and consultant for law firms, municipalities and corporations on both sides of the v.
‣ Kentucky basketball and Packers football fan
5@kellytwigger
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-- William Pollard
Information is a source of learning. But unless it is organized, processed, and available to the right people in a
format for decision making, it is a burden, not a benefit.
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The most valuable commodity I know of is information.
-- Gordon Gekko
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99% of all information created is electronic.
There are approximately 110,000 pages of information in 1GB of
email. The opportunities to use the ESI that is available has tremendous advantages for your clients to understand facts faster and resolve disputes
sooner and more advantageously for both parties.
Goals for Webinar
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Start thinking about ESI – you know more than you think!
Understand how eDiscovery fits into YOUR practice and what your needs are
What are your eDiscovery obligations to your client?
Put together a cost-effective approach to eDiscovery that meets YOUR needs
Poll Question #1
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What is your current approach to eDiscovery?
Poll Question #1
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A. It’s Covered: We have processes and protocols to conduct and manage eDiscovery in-house and our attorneys follow them
B. Not So Much: We have some information, but know that we need more
C. Clueless: Why do you think I’m on this webinar?
Sources of ESI
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Internet of Things (IoT)
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ESI Myths
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We don’t have much litigation. I don’t litigate. We can just print it/pdf it. My cases are small. It’s too expensive. I’m going to retire soon.
ESI Myths
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Get over it and get on board.
eDiscovery is here to stay and it will only get more complex as
technology gets more complex.
Poll Question #2
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What types of matters are you handling?
Poll Question #2
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A. General commercial matters/IPB. Employment mattersC. Products liability or personal injuryD.Divorce or family mattersE. Other
Think about ESI
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CHANGE YOUR APPROACH
Think about ESI
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Under-stand case
Send broad discovery re-
quests
Filter through the morass/don’t look at
it
The Default Approach to Dis-covery
Think about ESI
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Why the default approach doesn’t work with ESI
No conversations with counsel (meet and confer) No understanding of what information may or may
not exist until you receive responsive information Just shooting blindly in the dark as to what you want High cost with low reward
Think about ESI
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Under-stand case
Change Your Approach
Think about the types, sources
and range of data that is available
and work to narrow what you
ask for
Use tools and
thoughtful searching
techniques to get to the info you want quickly
eDiscovery for YOUR Practice
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Know the rules, requirements, and what you need to do to meet your
obligations for your practice; as that changes, adjust what you are doing.
Poll Question #3
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What is your biggest challengein eDiscovery?
Poll Question #3
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A. I do not understand technology. B. I do not know what tools to use.C. My clients do not want to talk about it. D.Hello, I’m on this webinar, it’s all a challenge.
eDiscovery for YOUR practice
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What are your needs? (# of matters, size, how much
ESI, sophistication level of clients) Internal resources vs. external – who can you
leverage? What kinds of processes can you put in place to get
ready? What are the client needs that you are supporting? Budget --- outright cost/ROI of bringing eDiscovery
into your firm No One Size Fits All and NO easy button
eDiscovery for YOUR Practice
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What kinds of evidence do you need to win your case? (aka THE MONEY DOCUMENTS)
Where does that evidence live and what form is it in? (email, attachment, database, social media post, etc.)
How much will it cost to get that evidence vs. the value of the evidence to the matter?
What do you need to learn to have appropriate conversations with opposing counsel? How can you learn?
Ethical eDiscovery Obligations
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A lawyer shall provide competentA lawyer shall provide competent
representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation necessary for the
representation.
ABA Model Rule 1.1 Compe-tency
Ethical eDiscovery Obligations
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A lawyer shall provide competentTo maintain the requisite knowledge and
skill, a lawyer should keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant technology . . .
ABA Model Rule 1.1 Compe-tency
Comment 8
Ethical eDiscovery Obligations
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Attorney competence related to litigation generally requires, at a minimum, a basic
understanding of issues related to eDiscovery. On a case by case basis, the
duty may require a higher level of technical knowledge and ability.
California State Bar Formal Op. 2015-193
Ethical eDiscovery Obligations
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An attorney lacking the required competence for the eDiscovery issues has
three options:
California State Bar Formal Op. 2015-193
1. Acquire sufficient learning and skill before performance is required
2. Associate with or consult technical consultants or competent counsel
3. Decline the representation
Ethical eDiscovery Obligations
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California State Bar Formal Op. 2015-193
1. Initially assess eDiscovery needs and issues2. Implement appropriate ESI preservation procedures,
including the obligation to advise the client of the legal requirement to take actions to preserve relevant data, like ESI
3. Analyze and understand a client’s ESI systems and storage
4. Identify custodians relevant to ESI5. Perform appropriate searches
Ethical eDiscovery Obligations
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California State Bar Formal Op. 2015-193
6. Collect responsive ESI in a manner that preserves the integrity of that ESI
7. Advise the client as to available options for collection and preservation of ESI
8. Engage in competent and meaningful meet and confer with opposing counsel regarding eDiscovery
9. Produce responsive ESI in a recognized and appropriate manner
Ethical eDiscovery Obligations
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California State Bar Formal Op. 2015-193
ESI must be stored as securely as paper Exercise reasonable care in utilizing third party
providers Have measures in place to protect integrity and
security of information, including firewalls, intrusion detection software
Protect client information and A/C communications in discovery
Cost-effective Approaches
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Plan for YOUR needs and YOUR clients
Poll Question #4
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What is the average value of the matters you are handling?
Poll Question #4
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A. >$10KB. Between $10K to $100K C. $100K to $500K D.$500K to $1 million E. More than $1 million regularly
Cost-effective Approaches
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Have a plan in place to deal with legal hold, preservation of data, collection and handling data
Identify any third party assistance you need NOW, not when it happens
Identify what, if any, tools and resources you have in the firm to leverage for eDiscovery
Identify external tools that may be of valueLearn, learn, learn about the ESI that is involved
in YOUR cases
Work with ESI Attorneys
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By the Glass Consulting Set up one on one session for
consulting on your specific needs
By matter or general process issues
Flat fee for one hour consultation and follow up email with recommendations and links as discussed
Outsourcing and Education
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Many options available for educationFocus on what your needs are Can you get what you need from a presenta-
tion? Do you need expert advice?
eDiscovery Assistant™
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www.eDiscoveryassistan-t.com
Find eDiscovery Rules for states, federal and US District Courts
Use powerful checklists to create processes, plan case strategy, implement a legal hold, etc.
Build forms to utilize within your practice including sample RFP’s, orders,
Review our eDiscovery case law database – over 3700 decisions tagged by issues and sort it by judge, cite, date and name
Review videos and webinars on eDiscovery topics at your leisure when YOU need them.
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Thank you
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