e discovery & ethics

ESI & Ethical ConsiderationsBe aware of problems, then avoid them

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‣ Federal law clerk‣ Big firm lawyer‣ Solo lawyer‣ Weblog author‣ Speaker & consultant

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Ernie Svenson

It’s litigation time

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Do you know where your client’s data is?

A true story

Morgan Stanley

Ron Perelman

$650 Million

Fraud

Prove

Reliance

Damages

Backup tapes

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Oops, we found 1,600 more of them!!!

Judge Maas

“Just assume fraud”“Bad faith...”

Fraud

Trial

Reliance

Damages

$1.4 Billion

E-Discovery?I don’t care

for it.

Hostage to technology

AgendaProblem Too many ones and zeros

Rules

Clients

Ethics

Conflicts

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Rules in a knife fight?

High demand, low interest

You’re responsible for everything

Don’t assume anyone knows

Problem 1

65%of emails are never printed out

‣ Paper was easy‣ Paper was safe‣ ESI is everywhere‣ Too many types‣ Too many sources‣ Too easy to replicate

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The “Digital Divide”

Old-fashionedDiscovery

E-discovery increases the cost of litigation by as much as 25%

Costs of discovery

E-Discovery

21General Counsel

E-Discovery?It’s killing me!

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“Litigation habits from the days of paper must be revised.”

–Honorable Lee Rosenthal

Problem 12Rules

Electronically Stored Information (“ESI”)Procedure Rules updated

ESIFederal CtsDec. 2006

MississippiPending

Commonly used termsESI

Native format

Reasonably Accessible

Clawback

.doc, .PST, .xls, .pdf, .???

On hand, easy to get to?

Oops, I sent you privileged info

Metadata

Electronically stored information

Like having X-Ray vision

Key court casesZubulake

Morgan Stanley

Qualcomm

Backup tapes are expensive

Coming up

Who pays for e-discovery?

Problems 1

3ClientsRules 2

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Thou shalt meet & confer

“it’s more important to ask the right questions than to know the right answers –Craig Ball

Craig Ball

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‣ 50 Questions to ask at a Meet & Confer

‣ Google that phrase

Client TrialIdentify Discovery

‣ Issues?

‣ Witnesses?

‣ Exposure?

‣ Timefame?

‣Preserve data

‣ IT guys?

‣ Native format?

‣ Where’s data?

‣Preserve data

‣ Respond

‣ Seek

‣Forms?

‣ Avoid adverse Inference!!!

accounting always for ESILitigation flowchart

If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms

Requests for Production

“does not specify”

If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms

Requests for Production

1.“ordinarily maintained”

If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms

Requests for Production

2.“reasonably usable”

Problem 1

4Ethics

Rules 2Clients 3

‣ Actively oversee‣ Supervise (Rule 5.3)‣ Not obstruct (Rule 3.4)‣ Be diligent (Rule 3.4)‣ Guard client secrets

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Duties of lawyers

Failure to communicate leads to disaster

Why is key data so hard to gather?

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Key data

Client Lawyer

Vendors

‣ Client doesn’t want to look for data

‣ Lawyer tends to rely too much on client & vendor

‣ Vendor has to cater to lawyer; has no access to client

The problem

QualcommPatent InfringementFiled: 2005Tried: 2007Cross exam: what emails?

300,000 pages requestedbut never produced

Conclusion: intentionally withheld

Result? $ 8.5 Million

‣ “incredible communications breakdown”

‣ Attys didn’t pay attention to collections procedures

‣ But no bad faith; so no sanctions

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Judge Major: “major errors”

Problem 1

5Conflicts

Rules 2Clients 3Ethics 4

‣ Suggest options‣ Preserve data‣ Help with search‣ Report illegal content‣ Forensics?

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Duties of vendors

‣ Gather data properly?‣ Keep attorney

informed?‣ Blame attorney when

something goes wrong.

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Duties of clients?

‣ Understand digital technology

‣ Anticipate problems‣ Remain paranoid‣ Learn more about

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Real duties of attorneys

‣ Beware of what you agree to

‣ Digital data: elusive & pervasive

‣ Ignorance happens‣ Assume it’s you

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Key takeaways

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Ernie Svensonesvenson@gmail.com(504) 669-5150