surfing the e-discovery tsunami an e-discovery surfer ˇs ... · an e-discovery surfer ˇs guide to...

IMLA Miami, Florida October 18-21, 2009

SURFING THE E-DISCOVERY TSUNAMI

An E-Discovery Surfer’s Guide toAvoiding Reefs and Wipeouts inConstruction and Civil Litigation

Introduction

• What is E-Discovery really about?

• Why should clients care?

• Why should you care?


Introduction

• What is E-Discovery really about?

• Why should clients care?

• Why should you care?

• What is Electronically Stored Information(ESI)?

• Where is ESI located?

• Many more places than you think!


• What is Electronically Stored Information(ESI)?

• Where is ESI located?

• Many more places than you think!


TYPES OF RECORDS• Contracts• Drawings• Specifications• Meeting minutes• Daily reports• Timesheets• Job cost records• Payroll records• Bid documents• Invoices• Payment applications• Correspondence• Schedules• Logs• Submittals• Change orders• Photographs• RFI’s• Test reports• Delivery tickets• Quantity calculations• Purchase orders

Typical office software

Word, excel, dbase,presentation, email

Estimating software

Scheduling software

Primavera, MS Project

TYPES OF RECORDS• Contracts• Drawings• Specifications• Meeting minutes• Daily reports• Timesheets• Job cost records• Payroll records• Bid documents• Invoices• Payment applications• Correspondence• Schedules• Logs• Submittals• Change orders• Photographs• RFI’s• Test reports• Delivery tickets• Quantity calculations• Purchase orders

Scheduling software

Primavera, MS Project

Project Management Software

Expedition, Prolog, Etc

Design software

CAD, BIM, STAAD, Etc

Electronic Images

Accounting Software

• What about document retention policies?

• Does your client have policies?

• Does your client follow the policies?

• What do you do when the client does nothave document retention policies or hasnot followed its policies?


• What about document retention policies?

• Does your client have policies?

• Does your client follow the policies?

• What do you do when the client does nothave document retention policies or hasnot followed its policies?

• E-Discovery issues in pre-litigation!

• The dreaded preservation letter.

• Strategies dealing with:– Sending

– Receiving

– Responding

• Mobilizing your client to address ESI issues.


• E-Discovery issues in pre-litigation!

• The dreaded preservation letter.

• Strategies dealing with:– Sending

– Receiving

– Responding

• Mobilizing your client to address ESI issues.

• What are the obligations to preserve ESI?

• Client’s obligations to preserve ESI.

• Counsel’s obligations to preserve ESI.


• What are the obligations to preserve ESI?

• Client’s obligations to preserve ESI.

• Counsel’s obligations to preserve ESI.

• E-Discovery Issues During Litigation!

• What kind of information (data) is sought ine-discovery and where can it be found?

• Do you really need the ESI?

• Do you really need the “native format” of adocument?

• Do you really need the “meta data”?

• How should the data be collected?

• Strategies to use in conducting e-discovery.


• E-Discovery Issues During Litigation!

• What kind of information (data) is sought ine-discovery and where can it be found?

• Do you really need the ESI?

• Do you really need the “native format” of adocument?

• Do you really need the “meta data”?

• How should the data be collected?

• Strategies to use in conducting e-discovery.

• How should clients respond to e-discovery?

• Who should be on the client’s responseteam?

• What should counsel be reviewing?

• What are the ethical obligations imposedon counsel in reviewing ESI, discussing ESIwith clients, and in preserving the attorney-client privilege in the production of ESI?


• How should clients respond to e-discovery?

• Who should be on the client’s responseteam?

• What should counsel be reviewing?

• What are the ethical obligations imposedon counsel in reviewing ESI, discussing ESIwith clients, and in preserving the attorney-client privilege in the production of ESI?

• What are the technical production issues suchas file types and production specifications,review platforms and software packages toassist in performing searches?

• What kinds of software will counsel and/ortheir vendors and experts need to open/viewvarious kinds of files?

• What are the issues arising out of productionof documents, images and "native" files (i.e.,unaltered files that are viewed using theprogram that was used to create them)?


• What are the technical production issues suchas file types and production specifications,review platforms and software packages toassist in performing searches?

• What kinds of software will counsel and/ortheir vendors and experts need to open/viewvarious kinds of files?

• What are the issues arising out of productionof documents, images and "native" files (i.e.,unaltered files that are viewed using theprogram that was used to create them)?

• What are the pitfalls of various datacollection practices?

• What are the benefits and difficulties ofdealing with electronic files as opposed topaper documents?


• What are the pitfalls of various datacollection practices?

• What are the benefits and difficulties ofdealing with electronic files as opposed topaper documents?

• How do you select an IT Consultant?

• What are the types of consultants availableto assist clients and counsel in e-discovery?

• What are the costs of the consultants?


• How do you select an IT Consultant?

• What are the types of consultants availableto assist clients and counsel in e-discovery?

• What are the costs of the consultants?


Utilizing electronic records.• Document management software:

– Vendors, hosts and administrators

• Organizing and accessing the records:– Bibliographical coding

– Plan and manage the coding effort• Fields to be tracked

• Correct field names

• Attachments

• Subject

– Searching the records

Utilizing electronic records.• Document management software:

– Vendors, hosts and administrators

• Organizing and accessing the records:– Bibliographical coding

– Plan and manage the coding effort• Fields to be tracked

• Correct field names

• Attachments

• Subject

– Searching the records

• What are the costs of the e-discoveryprocess?

• Strategies to shift the costs to the otherparty.

• Strategies to avoid having to producecertain costly and/or burdensome ESI.


• What are the costs of the e-discoveryprocess?

• Strategies to shift the costs to the otherparty.

• Strategies to avoid having to producecertain costly and/or burdensome ESI.


• Outsourcing the review and production ofESI.

• How to manage large numbers of off-sitecontract attorneys performingprivilege/relevance reviews.

• Ethical considerations.

• Outsourcing the review and production ofESI.

• How to manage large numbers of off-sitecontract attorneys performingprivilege/relevance reviews.

• Ethical considerations.


• What are the privilege/relevance reviewpractices and problems?

• Strategies to handle privilege waiver issues.

• What are “clawback” and “quick peek”agreements and do they really work?

• What are the Amendments to the FederalRules of Evidence and their impact onreview and production practices?

• What are the privilege/relevance reviewpractices and problems?

• Strategies to handle privilege waiver issues.

• What are “clawback” and “quick peek”agreements and do they really work?

• What are the Amendments to the FederalRules of Evidence and their impact onreview and production practices?

Click to edit Master title style

What must be considered in aFRCP 26(f) Conference?

• See e.g. United States District Court for the District of Maryland- Suggested Protocol for Discovery of Electronically StoredInformation (“ESI”):http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf

• Summary of the suggested protocol.• Anticipated scope of requests for, and objections to, production

of ESI.• Whether production of ESI will be in the “Native File,” “Static

Image,” or other searchable or non-searchable formats.• Whether some documents can be produced in paper format.• Whether meta-data is requested for some or all ESI and, if so,

the volume and costs of producing and reviewing the ESI.


What must be considered in aFRCP 26(f) Conference?

• See e.g. United States District Court for the District of Maryland- Suggested Protocol for Discovery of Electronically StoredInformation (“ESI”):http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf

• Summary of the suggested protocol.• Anticipated scope of requests for, and objections to, production

of ESI.• Whether production of ESI will be in the “Native File,” “Static

Image,” or other searchable or non-searchable formats.• Whether some documents can be produced in paper format.• Whether meta-data is requested for some or all ESI and, if so,

the volume and costs of producing and reviewing the ESI.

http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf

http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf


What must be considered in a FRCP 26(f)Conference? - Continued• Preservation of ESI during the lawsuit and the

applicability of the “safe harbor” provisions ofFRCP 37.

• Post-production assertion, and preservation orwaiver of, the attorney-client privilege, workproduct doctrine, and/or other privileges in lightof “clawback,” “quick peek,” or testing or samplingprocedures, and including that protocol in anorder to be entered by the court.


What must be considered in a FRCP 26(f)Conference? - Continued• Preservation of ESI during the lawsuit and the

applicability of the “safe harbor” provisions ofFRCP 37.

• Post-production assertion, and preservation orwaiver of, the attorney-client privilege, workproduct doctrine, and/or other privileges in lightof “clawback,” “quick peek,” or testing or samplingprocedures, and including that protocol in anorder to be entered by the court.

Click to edit Master title styleSURFING THE E-DISCOVERY TSUNAMI

What must be considered in a FRCP26(f) Conference? - Continued• Identification of ESI that is or is not reasonably

accessible without undue burden or cost.• Methods of identifying ESI that is produced (file

naming protocols).• Methods of redacting information from ESI.• Nature of the information systems used by the

parties.• Specific facts related to the costs and burdens of

preservation, retrieval, and use of ESI.• Cost sharing for the preservation, retrieval and/or

production of ESI.

What must be considered in a FRCP26(f) Conference? - Continued• Identification of ESI that is or is not reasonably

accessible without undue burden or cost.• Methods of identifying ESI that is produced (file

naming protocols).• Methods of redacting information from ESI.• Nature of the information systems used by the

parties.• Specific facts related to the costs and burdens of

preservation, retrieval, and use of ESI.• Cost sharing for the preservation, retrieval and/or

production of ESI.


What must be considered in a FRCP 26(f)Conference? - Continued• Search methodologies for retrieving or reviewing

ESI.

• Preliminary depositions of information systemspersonnel, and the limits on the scope of suchdepositions.

• Whether two-tier or staged discovery of ESI needsto be conducted.

• Whether there is a need for any protective ordersor confidentiality orders.


What must be considered in a FRCP 26(f)Conference? - Continued• Search methodologies for retrieving or reviewing

ESI.

• Preliminary depositions of information systemspersonnel, and the limits on the scope of suchdepositions.

• Whether two-tier or staged discovery of ESI needsto be conducted.

• Whether there is a need for any protective ordersor confidentiality orders.


FRCP 37 – Safe Harbor

• What is the safe harbor?

• Does the safe harbor really exist?

• Strategies to make it into the “harbor.”


FRCP 37 – Safe Harbor

• What is the safe harbor?

• Does the safe harbor really exist?

• Strategies to make it into the “harbor.”


• Strategies to handle various evidentiaryissues and problems with ESI.

• How do you use the ESI as evidence?

• Authentication issues.

• Hearsay Rule and exceptions.

• Best Evidence Rule.

• Strategies to handle various evidentiaryissues and problems with ESI.

• How do you use the ESI as evidence?

• Authentication issues.

• Hearsay Rule and exceptions.

• Best Evidence Rule.


• What are the issues arising out of thecreation of privilege logs?

• Strategies to deal with privilege logs.

• What are the issues arising out of thecreation of privilege logs?

• Strategies to deal with privilege logs.


• How do you handle the problems arisingout of a judge’s lack of personal practicalexperience in actually performing e-discovery ?

• Translation - how do you tell the judge thathe is wrong about an ESI issue and not beheld in contempt of court!

• How do you handle the problems arisingout of a judge’s lack of personal practicalexperience in actually performing e-discovery ?

• Translation - how do you tell the judge thathe is wrong about an ESI issue and not beheld in contempt of court!


QuestionsQuestions


Presenters:Roy CooperAssociate Vice PresidentPinnacleOne an ARCADIScompany213 Court StreetSuite 700Middletown, CT 06457Office: (860) 704-6100Fax: (860) [email protected]

Donald C. RamsayStinson Morrison Hecker LLP10975 Benson, Suite 55012 Corporate WoodsOverland Park, KS 66210Direct: (913) 344-6744Mobile: (913) 709-8323Fax: (913) [email protected]

Edwin M. LevySenior CounselCommercial & Real EstateLitigation DivisionNew York City Law Department100 Church StreetNew York, NY 10007Direct: (212) [email protected]

John S. RannestadSenior ConsultantPinnacleOne an ARCADIS company213 Court StreetSuite 700Middletown, CT 06457Office: (860) 704-6100Fax: (860) [email protected]

Roy CooperAssociate Vice PresidentPinnacleOne an ARCADIScompany213 Court StreetSuite 700Middletown, CT 06457Office: (860) 704-6100Fax: (860) [email protected]

Donald C. RamsayStinson Morrison Hecker LLP10975 Benson, Suite 55012 Corporate WoodsOverland Park, KS 66210Direct: (913) 344-6744Mobile: (913) 709-8323Fax: (913) [email protected]

Edwin M. LevySenior CounselCommercial & Real EstateLitigation DivisionNew York City Law Department100 Church StreetNew York, NY 10007Direct: (212) [email protected]

John P. MarkovsAssociate County AttorneyDivision of Finance and ProcurementOffice of the County AttorneyMontgomery County, Maryland101 Monroe Street, 3rd FloorRockville, MD 20850Direct: (240) 777-6725Mobile: (301) 525-3643Fax: (240) [email protected]

John S. RannestadSenior ConsultantPinnacleOne an ARCADIS company213 Court StreetSuite 700Middletown, CT 06457Office: (860) 704-6100Fax: (860) [email protected]

mailto:[email protected]








surfing the e-discovery tsunami an e-discovery surfer ˇs ... · an e-discovery surfer ˇs guide to...

Documents