Pitfalls in E-Discovery

1. Pitfalls in E-Discovery David A. Chaumette, De la Rosa & Chaumette State Bar of Texas, Winning Before Trial 2009 Operating Ethically under the Rules

3. Five things about electronic discovery • These rules apply to everyone. (Rule 5.01) • Preservation is key, and the other side knows it. (or Litigation holds are your friends.) (Rule 3.02) • Know what you don’t know and how you don’t know it. (Rules 1.01, 3.03) • The bullseye is on everyone’s back. (Rule 1.06) • Documentation and some disclosure is good for the soul (and the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05) De la Rosa & Chaumette 3

4. So, how do you avoid this? De la Rosa & Chaumette 4

5. Or this? Assistant’s Goof Results in Late Brief, Costs Lawyer $5,000 Posted Jun 12, 2008, 11:10 am CDT By Debra Cassens Weiss Updated: A federal appeals court has fined a lawyer $5,000 for filing a brief too late. The Chicago-based 7th U.S. Circuit Court of Appeals had granted litigant Clarence Gross several extensions to file the brief, first due in January 2007, while the case was in mediation, the Wisconsin Law Journal reports. He was given a last and final deadline of April 21 this year, which his lawyer missed by four days. De la Rosa & Chaumette 5

6. Five things about electronic discovery • These rules apply to everyone. (Rule 5.01) • Preservation is key, and the other side knows it. (or Litigation holds are your friends.) (Rule 3.02) • Know what you don’t know and how you don’t know it. (Rules 1.01, 3.03) • The bullseye is on everyone’s back. (Rule 1.06) • Documentation and some disclosure is good for the soul (and the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05) De la Rosa & Chaumette 6

7. Preservation Pre-Suit. • Make sure that you can still access legacy system data. • Every time someone gets a new computer, methodicallyconsider whether to make an image of that computer. • Communicate to employees that record retention is everyone’s job. De la Rosa & Chaumette 7

8. Preservation in litigation. • Once you are aware that litigation might occur, consider the following steps: • Send a “hold” letter, even to your own people. • Calendar regular reminders of this (avoid special reminders, if possible). • Be sensitive to departing employees and the systems they use. • Ask where people keep electronic “stuff.” De la Rosa & Chaumette 8

9. Preservation in litigation. • Once you are aware that litigation might occur, consider the following steps: • Don’t solely rely on the IT staff. • Interview the IT staff early. • Document every step you take. • Be prepared to interview everyone and ask everyone the same set of questions. De la Rosa & Chaumette 9

10. Five things about electronic discovery • These rules apply to everyone. (Rule 5.01) • Preservation is key, and the other side knows it. (or Litigation holds are your friends.) (Rule 3.02) • Know what you don’t know and how you don’t know it. (Rules 1.01, 3.03) • The bullseye is on everyone’s back. (Rule 1.06) • Documentation and some disclosure is good for the soul (and the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05) De la Rosa & Chaumette 10

11. Rule 1.01 Competent and Diligent Representation • E-discovery obligations related to competence: • Educate yourself and your clients about electronic discovery issues before a complaint or answer is ever filed. • Know enough to know what you don’t know and when to hire outside experts. • Follow evolving e-discovery case law and rules changes. • But it’s not necessarily just about the law… De la Rosa & Chaumette 11

12. Anticipating the questions… • Who is on your electronic document team? • Who is the team’s spokesperson (and the backup spokesperson)? Think testimony. • Where are things? Avoid new hunts. • What electronically stored information is “inaccessible” because of “undue burden or cost?” (And ask yourself: “do I really need all of this stuff?”) • What are we saying publicly? De la Rosa & Chaumette 12

13. Anticipating the questions… • What’s our storage-media policy for employees? What do we do when people don’t follow them? • What third parties have ESI that is arguably within your “possession, custody, or control?” • How can we stay current? Think mergers, acquisitions, transfers… • How do we keep our employees current? De la Rosa & Chaumette 13

14. Rule 3.03 Candor to Tribunal a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (5) offer or use evidence that the lawyer knows to be false. (b) If the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. De la Rosa & Chaumette 14

15. Five things about electronic discovery • These rules apply to everyone. (Rule 5.01) • Preservation is key, and the other side knows it. (or Litigation holds are your friends.) (Rule 3.02) • Know what you don’t know and how you don’t know it. (Rules 1.01, 3.03) • The bullseye is on everyone’s back. (Rule 1.06) • Documentation and some disclosure is good for the soul (and the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05) De la Rosa & Chaumette 15

16. Rule 1.06 Conflict of Interest • Lawyer cannot represent opposing parties in same litigation. • Otherwise, it’s largely a prejudice and consent issue. • If lawyer believes no prejudice to parties; • If parties consent after disclosure of potentially adverse consequences of joint representation; • E.g., joint representation of employer and manager accused of employment discrimination. • Outside counsel learns information about manager that is reason for termination. De la Rosa & Chaumette 16

17. In E-discovery: Conflicts with Clients • Coleman (Parent) Holdings Inc. v. Morgan Stanley. “In court, Morgan Stanley said it is considering a mal-practice suit against the law firm that represented it.” • Qualcomm v. Broadcom. De la Rosa & Chaumette 17

18. Five things about electronic discovery • These rules apply to everyone. (Rule 5.01) • Preservation is key, and the other side knows it. (or Litigation holds are your friends.) (Rule 3.02) • Know what you don’t know and how you don’t know it. (Rules 1.01, 3.03) • The bullseye is on everyone’s back. (Rule 1.06) • Documentation and some disclosure is good for the soul (and the pocketbook). (or talk early, talk often.) (Rule 1.03, 3.02, 1.05) De la Rosa & Chaumette 18

19. Rule 1.03 Communication • (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. • (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. De la Rosa & Chaumette 19

20. The email you need to watch…. Did Lawyer’s E-Mail Goof Land $1B Settlement on NYT’s Front Page? Posted Feb 6, 2008, 06:55 am CDT By Debra Cassens Weiss Updated: An outside lawyer for Eli Lilly & Co. apparently has two people named “Berenson” in her e-mail address book. One is a reporter for the New York Times and the other is her co-counsel assisting in confidential negotiations on a possible $1 billion settlement between the pharmaceutical company and the government. The question is whether her e-mail to the wrong Berenson spurred last week’s front-page New York Times story revealing talks to resolve criminal and civil investigations into the company’s marketing of the anti-psychotic drug Zyprexa, as Portfolio.com reports. De la Rosa & Chaumette 20

21. Confer Early on E-discovery Issues • FRCP 26 requires parties, before the initial case management conference, to: • (a) “discuss any issues relating to preserving discoverable information”; and • (b) to present to the court a discovery plan setting forth the parties’ views concerning “any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced.” • ABA Standards are similar to FRCP. De la Rosa & Chaumette 21

22. Victor Stanley Inc. v. Creative Pipe Inc. • Victor Stanley Inc. v. Creative Pipe Inc., 250 F.R.D. 251 (D. Md. 2008). • Designing adequate search protocols “involves technical, if not scientific knowledge” that demanded familiarity with “the sciences of computer technology, statistics and linguistics.” • Court cited to The Sedona Conference Best Practicesfor guidance on search and information retrieval techniques. • Designing a computer-assisted privilege review “requires the utmost care in selecting [a] methodology that is appropriate for the task,” “careful advance planning by persons qualified to design [an] effective search methodology,” “test[ing] for quality assurance,” and documenting the process so that the search protocols can be explained to a court in the context of future discovery disputes. De la Rosa & Chaumette 22

23. Managing Litigation • Rule 3.02 Minimizing Burdens of Litigation -- In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter. • See Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008). • Rule 1.05 Confidentiality of Information -- Take precautions to avoid inadvertent disclosure. De la Rosa & Chaumette 23

24. Cooperate or Else! – Rule 26(g) • Mancia : • Fed. R. Civ. P. 26(g) requires counsel to cooperate and that failure to do so can be construed as a violation of the duty of “reasonable inquiry” prior to certifying demands or responses. Cites Cooperation Proclamation. • Victor Stanley: • Failure to agree on a clawback agreement, or agreement on choice of search key words results in waiver of privilege when unilateral choice of keywords in privilege review did not rise to level of “reasonable precautions” to prevent inadvertent waiver.

26. If I had more time… • Privilege generally. • Inadvertent disclosure and Rule 502. • Privilege logs. • What is “reasonably accessible?” • Handling confidential information. • The developing body of law on privacy. De la Rosa & Chaumette 26

27. Some (free!!) resources. • www.ediscoverylaw.com • www.discoveryresources.org • www.thesedonaconference.org • www.edrm.org De la Rosa & Chaumette 27

28. Wrapping up… • Ethics in an e-discovery context is similar to ethics outside that context. • Practitioners need to remain vigilant about their duties under the Rules. • Documentation and disclosure will help keep you away from sanctions and spoliation. De la Rosa & Chaumette 28