Presentation Transcript

1. COMPLIANCE

   What Courts Expect In A Digital Age September 11, 2013
2. Today’s Speakers Joy Allen Woller, Attorney Lewis Roca Rothgerber LLP jwoller@lrrlaw.com 303.628.9504 Chris Sullivan, Associate General Counsel CenturyLink Chris.Sullivan@CenturyLink.com 303.992.5880
3. What is eDiscovery? “Discovery is expansive and includes any type of information that is stored electronically.”“…discovery of electronically stored information stands on equal footing with discovery of paper documents…”
4. So much stuff… US Census Bureau Data - 3,789 terabytes Library of Congress digital collection - 5,120 terabytes Google’s Search Index - 97,656 terabytes Content uploaded to Facebook each year - 182,500 terabytes Business email sent per year - 2,986,100 terabytes Source: Wired Magazine, May 2013 “Big Data”
5. And it’s everywhere…
6. “Discovery of ESI has become vital in most civil litigation – virtually all business information and much private information can be found only in ESI. At the same time, the costs of gathering, reviewing, and producing ESI have reached staggering proportions.” Hon. James C. Francis IV, Foreward, Judges’ Guide to Cost Effective E-Discovery, 2010
7. Yet Many Companies Lack An Information Retention Plan According to Symantec’s recent survey Only 34% of responding organizations said they have a formal information retention plan in place 54% said preserving more ESI than necessary increased their discovery costs 27% said over preservation compromised their position in potential or actual litigation Source: Symantec’s January 2013 Information Retention and eDiscovery Survey Global Results
8. ESI Volumes Are Often Huge Even For Companies With A Plan In 2012, CenturyLink Collected roughly 4.1 terabytes (TB) of ESI 1 TB is equivalent to 1,000 gigabytes 7.5 million docs 75 million pages
9. Courts will expect you to… PLAN AHEAD, BE PROACTIVE, AND KNOW YOUR DATA
10. Understand What You Have Form a discovery team Create an internal discovery plan
11. Manage Data Collection Track and document your collection efforts Standardize collection processes and procedures Update collections as necessary Do not rely on employees to self collect
12. Bottom Line A well-executed discovery plan should help you demonstrate you’ve complied with your preservation obligations Reduces the chance a court will impose sanctions for inadvertent preservation failures
13. When you fail to plan… Swofford v. Eslinger (M.D. Fla. 2009) Sanctioning in-house counsel for his “complete” failure to preserve evidence, especially email and laptops, after receiving multiple preservation letters Bd. Of Regents of Univ. of Neb. v. BASF Corp. (D. Neb. November 2007) sanctions for counsel’s failure to properly manage the collection of materials, where they relied on the custodian to gather electronic documents
14. Follow the plan Apple v. Samsung Electronics (N.D. Cal. 2012) Adverse inference instruction against Samsung for failure to disable the auto-delete function of its email system after it anticipated litigation with Apple.
15. Know Your Data Cartel v. Asset Management Motion for Protective Order denied Producing party’s burden can’t be met will bald generalizations The equivalent of an unsubstantiated claim the sky was falling. 2010 U.S. Dist. LEXIS 178857 (D.Colo. 2010)(J. Shaffer)
16. Know your data – Cartel, cont. did not provide the Court with any information as to: the types of databases; storage systems and backup or archival systems that [Defendants] use for [ESI]; and policies regarding records management, including the retention, destruction of ESI; or their ESI erasure, modification or recovery mechanisms. Asset Management citing Victor Stanley, 250 FRD 251, 261 (D.Md. 2008).
17. Courts will expect you to… COMMUNICATE WITH THE OTHER SIDE
18. A failure to communicate… only 25% discussed electronic discovery issues at a Rule 26(f) meeting only 13% of all respondents discussed preservation obligations Emery G. Lee III, Report to the Judicial Conference Advisory Committee on Civil Rules, Federal Judicial Center, March 2012
19. Cooperate With The Other Side Cooperation - sharing information and collaboratively addressing eDiscovery issues – is increasingly required by the courts P.P.R. 6.1 – parties to confer on preservation D.Colo. – Scheduling Order
20. Local efforts to address ESI 30 federal district courts address ESI Identification of custodians (8 courts) Search terms or search methodology (15 courts) Retention, preservation, or spoliation (23 courts) Cost and/or cost shifting (23 courts)
21. Why Cooperation Matters In eDiscovery disputes, courts are more likely to look favorably on litigants who attempted to cooperate Failure to cooperate in good faith in preparing a discovery plan is sanctionable in Fed. Ct.
22. Courts are starting to expect you to … BE KNOWLEGABLE ABOUT technology
23. The “technically competent” attorney? Rule 1.1 Competence A lawyer should keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology, …
24. Technology Assisted Review (TAR) Use of technology to cull very large sets of documents Now “approved” by a handful of courts Not a “Staples easy button” – Moore v. PublicisGroupe, 287 F.R.D. 182 (S.D.N.Y. 2012). Not appropriate for every case - EORHB, Inc. v. HOA Holdings LLC, 2013WL1960621 (Del. Ch. May 6, 2013).
25. But, proven to help in the right situation… “…by all measures, the average efficiency and effectiveness of the five technology-assisted reviews tested surpasses that of the five manual reviews.” “The technology-assisted reviews require, on average, human review of only 1.9% of the documents, a fifty-fold savings over exhaustive manual review.” Source: Grossman, M., Technology Assisted Review In E-Discovery Can Be More Effective And More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech. 11 Spring 2011, Table 7
26. Compliance in the future PROPOSED AmendMENTS TO THE federal rules of civil procedure
27. An end to “anxiety and anguish”? Background Timeline August 15, 2013 - Published for comment. February 15, 2014 – Public Comment Period Closes December 1, 2015 – earliest date proposed rules become effective The product of several mini-conferences. “…anxiety bordering on anguish arises from uncertainty as to the beginning, scope, and duration of the duty to preserve and the concomitant risk of sanctions for spoliation.”
28. Reduced Scope of Discovery (Proposed) Fed.R.Civ.P. 26(b)(1) Discovery Scope and Limits Discovery scope limited based on proportionality. Omits the phrase “reasonably calculated to lead to discovery of admissible evidence.”
29. The softer side of sanctions? Curative measures; additional discovery Sanctions Substantial prejudice was caused and were willful or in bad faith Irreparably deprived a party of meaningful opportunity to present or defend claims “permit additional discovery, order curative measures, or order the party to pay reasonable expenses, including attorney’s fees”
30. The softer side of sanctions? Factors to be considered in assessing a party’s conduct Extent party was on notice that litigation was likely; Reasonableness of efforts to preserve; Whether request to preserve was received; Proportionality of preservation efforts; Whether court guidance was timely sought.
31. Questions?
32. Where to go for help on ESI: The Sedona Conference® (various free guides and publications on eDiscovery) http://www.thesedonaconference.org/http://www.edrm.net/ Federal Judicial Center (various “Materials on Electronic Discovery: Civil Litigation”) http://www.fjc.gov/ Text of Proposed Federal Rules Changes: http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf Seventh Circuit Pilot Project: http://www.discoverypilot.com/ eLaw Exchange: http://www.elawexchange.com/