20 eDiscovery Warnings in 60 MinutesDon’t let this happen to you

Overview

• Being comfortable with eDiscovery matters

• Basics of eDiscovery

• 20 Warnings!

• Before the fact

• While in active litigation

• After the fact

Why eDiscovery Matters

• Properly managing the discovery process is a vital part of serving your clients. Since discovery is increasingly electronic, understand the basics and the potential pitfalls is crucial

• The legal treatment is similar to non-electronic discovery but the volumes and form has changed so much that the processes have had to change

• Proliferation of sources

• Exponential increase in potential volume

• Growth in eDiscovery has been staggering

• From virtually nothing 20 years ago to a $10 billion market last year

• CAGR of close to 10%, meaning it will double again in less than 8 years

• If you haven’t been actively involved with eDiscovery before and are involved in litigation, you will inevitably need to have familiarity with it in the future

The EDRM

Warning #1: Know your obligations under the Rules of Professional Conduct

• Technological competence is part of the Iowa Rules of Professional Conduct (as it is in 22 other states)

• Modeled on the ABA Rules

• Iowa Rule of Professional Conduct 32.1.1

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.

• Comment 8

To 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, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

• Bottom line: While the rules for discovery of Electronically Stored Information (“ESI”) are the same for traditional paper discovery, you need to understand how evolving technology impacts your responsibilities to serve your clients

Warning #2: Counsel clients on data and records management BEFORE litigation happens

• Technology and ESI are increasingly driving the discussion about what occurs early on in litigation

• Without good counsel on what to do with regard to information management before the fact, costs can be staggering

• Cannot get rid of anything after litigation is filed or appears imminent

• Need to do this assessment anyway – the Federal Rules of Civil Procedure #16 essentially requires that attorneys come into the pretrial conferences with basic understanding of their client’s information management and IT environment so that the discoverability of categories of ESI can be discussed

Warning #3: Do not initiate overly broad litigation holds

• If neither your client or you have properly evaluated their information technology environment in advance, it can be difficult to accurately give instructions to the IT team to properly preserve relevant information

• The result is that holds are frequently initiated on too broad a basis

• Overly broad holds are disruptive and the resulting overly broad reviews can be staggeringly expensive

• $1,332 per gigabyte (“GB”) to collect data

• $2,793 per GB to process data

• $22,480 per GB to review data (!)

• Total: $26,605 to collect, process and review a single GB of data

• The average desktop hard drive today has from 1 to 2 Terabytes of data – that is 1024 GB of data

• The average laptop hard drive today ranges from 500 GB to 1 Terabyte

Warning #4: Avoid diving in before understanding the full range of electronic data in play

• Similarly, without a complete understanding of what you are dealing with, things get left out or overlooked

• Frequently, the perimeter of corporate information environments are different than we think

• As much as over preservation is bad, under preservation is meaningfully worse –can’t review or recover what didn’t get saved

• Spoliation, loss of potentially relevant evidence, frequently occurs and there is no good outcome, governed largely by FRCP 37

• Best case scenario: Negative inference or “spoliation inference”

• Limitations on introduction of testimony and/or experts typically leading to summary judgement

• Dismissal and default judgement is the worst case

• In any instance, financial sanctions are also in play for both attorney fees and damages

Warning #5: Do custodial interviews prior to performing collections

• Custodian interviews typically are going to be the primary means of articulating the range of what is going to be gathered

• These interviews will frequently enable the creation of a data map that you can combine with your previously created high-level firm IT and information map

• Key steps

• Determine document locations

• Discuss privilege – it can easily alter how you search

• Reinforce need for compliance with retention rules – especially paper and other non-corporate IT assets

• Other relevant parties – greatest risk is missing a key person in the initial wave of collection

Warning #6: Don’t create forensic images of everything without considering proportionality and potential costs

• While forensic imaging is usually not going to break your budget, if you collect it, you tend to analyze it

• Understand going in, the $26k per GB price of doing everything after collection

• FRCP 26 is designed to help you here – it allows for arguments about proportionality

• Costs versus benefits are weighed by the court with regard to what is potentially available versus what should actually be collected

• Again – need to know going in or you can’t leverage the rules!

Warning #7: Avoid difficult to deal with data sources at your peril

• Cloud data can be intimidating, whether personal (iCloud), purely corporate (AWS or Azure) or a hybrid (Dropbox)

• Personal emails are also a huge complication

• Mobile devices are even worse

• Social media just extends the level of complexity even more. Increasingly relevant in a whole range of matter types including labor and employment but also a wide range of other types of litigation

• Even corporate data stored on commercial systems is complicated to deal with whether it’s SalesForce or Office 365

Warning #8: Make sure you tell clients what NOT to do

• Make sure clients do not “clean things up” after litigation commences

• Educate them – even deleting “personal” stuff, things directly unrelated to the matter can be hugely damaging

• The concern about potentially unflattering personal information or activities comingled with work information often drives people to attempt to cover their tracks. Tell them not to. We will find it. You will be punished.

Warning #9: Don’t wait until you are well in to a matter to figure out your litigation support approach and team

• If you don’t have a structured approach and a well trained team, doing it on an ad hoc basis and learning on the fly means making mistake

• Excluding trial, the most expensive phase of any litigation is everything around the collection, processing, storage and review of ESI. An effective team with documented processes ensures the ability to identify ways to decrease costs

• A good team will have a mix of skills, including technology, e-discovery, project management, paralegal and courtroom presentation

• Have a plan in place for outside vendors – same drill don’t wait until you have a fire drill

Warning #10: Do not tolerate opposing party deviations from agreed upon protocols

• Rule 26(f) and Iowa’s Local Rule 37 require that,

With regard to discovery motions in civil cases, counsel are required to meet and confer (in person or on the telephone; email exchanges are insufficient) in a good faith effort to resolve any dispute. See Local Rule 37. Failing resolution of the dispute by the parties, and prior to filing a motion regarding a discovery, the parties must contact the Judge to request a telephone conference call to discuss the dispute. The Judge will set aside time to discuss the issue with counsel. If the matter still cannot be resolved, then the complaining party may file the discovery-related motion.

• Once the protocols are agreed upon, if you allow deviations from the agreement, they will typically tend to snowball…

• If you accept minor deviations on a recurring basis, you have, by default, agreed to allow deviations from the agreement

• Deviations can include a wide range of issues, including:

• Format

• Privilege and Clawback

• Process for amendments

• Special masters or liasons

Warning #11: If you don’t have a plan, you can’t manage. If you don’t have a budget, you can’t manage costs.

• You can’t manage timelines, activities and costs without a plan and a budget

• A key component of client satisfaction is not purely cost driven – it is an understanding of how much it should cost and how long it should take, then that measured against what is actually happening

• The plan also needs to include an element of client/matter strategy

• Is the goal to win? Minimize total cost? Deter future suits?

• Agree with the client on what the objectives are and how to measure success

• Here is where you have the opportunity to talk about alternative fee arrangements to align incentives

Warning #12: Understand the need for technology and know the tools

• eDiscovery is not just traditional discovery with more data

• The volume overwhelms traditional work flows and processes

• Smart use of technology is critical

• Understand key concepts like clustering, metadata and hashing. So much that is different from the paper-based world of discovery

• Different cases, different strategies

• For smaller cases, it might be an in-house, all in one tool

• Larger cases may require outsourcing to web-based tools like Relativity

Warning #13: Lack of training on the tools means you can do more harm than good

• Have those tools and the appropriate training and contracts in place prior to a matter coming in the door

• The tools are powerful, but with great power comes great responsibility

• Understand Early Case Assessment

• Learn about analysis and clustering

• May need different teams if you have a split between how you handle small cases and larger ones

Warning #14: Refusing to get help when you need it is a bad idea

• Attorneys believe they are good at crafting search terms – typically, they are not

• Unless you have spent a lot of time attending classes about how to use the tools, you will not be able to drive this

• Identify your team and get the support people trained!

Warning #14: Refusing to get help when you need it is a bad idea

• Attorneys believe they are good at crafting search terms – typically, they are not

• Unless you have spent a lot of time attending classes about how to use the tools, you will not be able to drive this

• Identify your team and get the support people trained on the appropriate tools!

Warning #15: Key words are not just for finding relevant documents

• Typically, relevant documents ultimately end up representing a small percentage of the total collection, anywhere from 5-25%

• Most litigators focus on using key word searches to identify potentially responsive documents

• Before doing that, dramatically reduce the population by using key words to identify clearly non-relevant documents

• Can potentially cull out 50-70% with a broad range of commonly eliminated documents

Warning #16: Don’t forget to work with and coach your reviewers

• You understand your case in excruciating level of detail

• Your review team does not

• Commonly, review teams are made up of either contract attorneys with little familiarity with your approach and your specific matter or junior associates that have limited experience

• Give them best fit/worst fit example documents so they know precisely what to look for

Warning #17: Focusing on unit costs will crush your client’s budget

• Too many attorneys focus on cost per image, price per gigabyte, price per page reviewed, etc.

• Focusing on the cost per unit tends to cloud vision about how to narrow the actual number of “units”

• Vendors are incented to maximize units to make up for a race to the bottom on cost per unit

• Agree with vendors on maximum prices, incentives for limiting volumes, fixed fees for project management and other costs

• Plan for an overall budget with the vendor and the client – and hold everyone to their commitments

Warning #18: Forgetting to deal with collected data after a matter closes is dangerous

• Law firms are typically not good at records retention

• Check that – they are good at retaining, not good at destroying/disposing of information. Ever.

• If you retain information beyond the life of a case and your client faces a related action, your failure to destroy the data could cost your prior client

• Come up with record retention program that includes client data, and that covers retention and disposition of paper and electronic records

Warning #19: Don’t forget to help clients understand how to remove litigation holds

• While it is vital to ensure that clients know how to execute a litigation hold, they must also be educated on how to remove one

• Excessive preservation is exceedingly common. Holds are put in place and never removed. Subsequent litigation ultimately ends up involving documents that should no longer be there.

• Goes back to the beginning – help clients understand information management and to be proactive

Warning #20: Remember that every case and every mistake is an opportunity to improve the outcome on the next case

• At the resolution of every matter, take the time to figure out “lessons learned” about how things could have gone better

• Specifically, look at the processes and outcomes at every step – identification, preservation, collection, processing, review, analysis and production – and determine if there were specific things that could have been done more effectively so that you can apply them to future cases

• Figure out if there were additional tools that would have facilitated doing the work or if additional training is needed for the tools you already have

• Bottom line – every case should be easier than the last!