(webinar slides) how to use ediscovery in your small firm practice

How to Use eDiscovery in Your Law Practice

#eDiscovery

2

3

4

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

6

-- 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.

7

The most valuable commodity I know of is information.

-- Gordon Gekko

8

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

9

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

10

What is your current approach to eDiscovery?

Poll Question #1

11

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

12

Internet of Things (IoT)

13

ESI Myths

14

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

15

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

16

What types of matters are you handling?

Poll Question #2

17

A. General commercial matters/IPB. Employment mattersC. Products liability or personal injuryD.Divorce or family mattersE. Other

Think about ESI

18

CHANGE YOUR APPROACH

Think about ESI

19

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

20

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

21

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

22

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

23

What is your biggest challengein eDiscovery?

Poll Question #3

24

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

25

  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

26

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

27

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

28

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

29

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

30

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

31

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

32

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

33

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

34

Plan for YOUR needs and YOUR clients

Poll Question #4

35

What is the average value of the matters you are handling?

Poll Question #4

36

A. >$10KB. Between $10K to $100K C. $100K to $500K D.$500K to $1 million E. More than $1 million regularly

Cost-effective Approaches

37

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

38

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

39

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™

40

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.

41

Kelly Twigger, Esq. www.esiattorneys.comktwigger@esiattorneys.com720.370.0435

eDiscovery Assistant™www.ediscoveryassistant.-com

MyCasewww.MyCase.comsupport@mycase.com800-571-8062

42

Thank you

43