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EDD Update: Ediscovery Production Without Review | Albert Barsocchini

December 9, 2011 By Leave a Comment

More law firms are producing electronically stored information without going through linear review. After potentially-relevant ESI has been collected and sent out for processing, the producing party is normally focused on boiling down the ocean of documents and identifying privileged documents for sequestering. Linear review of the identified subset has been the traditional last step and most expensive in the production cycle.

Advanced analytics, judicial acceptance of computer aided coding, claw back/quick-peek agreements, and aggressive use of Rule 16 hearings have given attorneys a level of confidence that they can produce responsive ESI without spending time and money on a final linear review.

An attorney at a major law firm recently said to me, “In many cases we just give them what they want without reviewing them. Usually after our interviews and privilege cull using analytics and sampling, we have a pretty good idea of what we have and we don’t want to waste our client’s money on attorneys going through every single document before production … and yes we do use claw back agreements”.

via EDD Update: Ediscovery Production Without Review.

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Mechanisms That Help Reduce the Cost of E-Discovery | NJ Law Journal

May 19, 2010 By Leave a Comment

No matter how vigilant, there is no way to fully insulate yourself from a potential lawsuit. It should come as no surprise that defending a lawsuit, even one where you are ultimately not liable, can be costly. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With all of the unavoidable expenses associated with litigation, in these economic times it is necessary to implement mechanisms that help curtail the cost of litigation, especially with regard to electronic discovery.

RELEVANT COURT RULES REGARDING E-DISCOVERY

Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the “court rules”) require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).

In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term “documents” has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).

Although not formally defined in either set of the court rules, in practice it is understood that ESI includes information “created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” Kenneth J. Withers, Northwestern Journal of Technology and Intellectual Property, Vol.4 (2), 171, 173. Although the most commonly requested form of ESI is e-mail, the court rules require production of electronic data in formats other than e-mail.

The court rules have attempted to provide some limitations to the production requirements of electronic discovery, presumably in an effort to achieve fairness and balance. For example, in the context of a federal case, “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Federal Rules 26(b)(2)(B). However, even with limitations, the production of ESI can be very expensive and onerous.

via Mechanisms That Help Reduce the Cost of E-Discovery.

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Federal Pilot Program Curbs E-Discovery Fights | National Law Journal

May 14, 2010 By Leave a Comment
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The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties.

The goal of the program, launched in May 2009 and spearheaded by James Holderman, chief judge of the Northern District of Illinois, was to find ways to reduce the massive costs and burdens of electronic discovery. Chairing the program is Magistrate Judge Jan Nolan, also of the Northern District of Illinois.

The first-phase of the 7th Circuit‘s pilot program indicated that when judges and attorneys had a set of specific principles to guide electronic discovery, it improved the process — or, at least, didn’t make it worse.

“It was very encouraging,” said Holderman.

The first phase of the program involved 13 district court judges overseeing 93 civil cases and 285 attorneys between October 2009 and March 2010. The program required the judges and attorneys to follow a set of principles, drafted by the program’s committee members, during electronic discovery. Those principles called for:

• parties to recognize that cooperation with opposing counsel does not compromise zealous advocacy;

• parties to resolve electronic discovery disputes early, without court intervention;

• parties to make electronic discovery demands proportionate to the particulars of the case;

• parties to meet before an initial status conference with the judge to discuss discovery;

• when a dispute arose, each party to select a liaison attorney to deal with discovery and to attend hearings;

• parties to refrain from making overly broad preservation requests;

• parties to take reasonable steps to preserve electronically stored information;

• judges and attorneys to know the civil procedure rules pertaining to electronically stored information.

The participating judges and attorneys were sent a survey asking them to evaluate the program. All of the 13 judges and 133 of the attorneys responded.

About 90 percent of the judges thought that the principles increased or greatly increased the attorneys' familiarity with their clients’ technology relating to electronic discovery. All the judges agreed or strongly agreed that the use of discovery liaisons increased the efficiency of the discovery process.

About 43 percent of the attorneys said that the principles increased or greatly increased the fairness of the discovery process. About 55 percent said the principles had no effect on the fairness, and fewer than 3 percent said it made the process less fair. About 61 percent said that the principles had no effect on their ability to resolve discovery disputes without court involvement.

Asked whether the principles affected their ability to zealously represent their clients, 74 percent said the principles had no effect while 22 percent said that the principles increased their ability to zealously represent their clients. About 4 percent indicated a negative effect.

via Law.com – Federal Pilot Program Curbs E-Discovery Fights.

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E-Discovery In Arbitration | Mediate.com

May 11, 2010 By Leave a Comment

The business world has undergone a digital transformation, so it is probably not surprising to learn that 90% of all business information is electronically stored. Recent changes in Federal and State statutory schemes, the evolution of case material and the expansion of continuing education programs on the subject of E-discovery reflect this growing reality. Overlooked in the proliferation of commentary on retaining, finding, processing and producing electronically stored information (“ESI”) is the question of how to deal with such discovery in an arbitration setting.

Why are the problems and issues different in court and arbitration? To begin with, despite the pressure in some quarters to mirror litigation, most arbitrators are sensitive to the need to keep arbitration faster and cheaper than court. One important method of doing that is to suppress discovery, a material cause of runaway costs in litigation. While California law has always encouraged full discovery, and Federal Law only ameliorates it in certain specific ways (e.g. the number of interrogatories permitted), the rules of most arbitration tribunals either ignore specific references to discovery or permit very limited discovery (for example, JAMS Rule 17 (b) permits one deposition of an opposing party). Instead, the published arbitration rules generally combine a required voluntary exchange of documents and discretionary discovery to ensure that the parties have what they need to try their case.

While the Federal and State statutory framework for discovery has been modified to address electronic discovery (see, Fed. Rule of Civil Proc. 26 and Cal. Code Civ. Proc. Secs. 2031.010 et seq.), arbitration rules either give a token nod to the existence of ESI (See, JAMS Rule 17 [a]) or ignore it altogether. This leaves the entire issue in the hands of the parties and the Arbitrator. The task in arbitration is to balance the realistic discovery needs of the parties with a rational cost-suppression regime. T

via E-Discovery In Arbitration.

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When E-Discovery Is Used as a Weapon | The Recorder

May 11, 2010 By Leave a Comment

The attorney-client privilege is perhaps the oldest of the privileges for confidential communications known to common law. But the privilege is not available to a client who seeks legal advice to commit an ongoing or future crime or fraud. To prevent those abuses, courts have fashioned a limited exception to the privilege known as the crime-fraud exception.

Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.

The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company’s representative to determine the failures or weaknesses in the company’s preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee’s record-keeping habits. Faced with a broad-ranging document request, an attorney’s task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.

Attorneys opposing this sort of motion to compel then face the difficult task of proving that all relevant documents were in fact preserved and produced, while at the same time ensuring the judge understands the company's technology infrastructure. Notwithstanding an attorney's reasonable and good faith effort to preserve and produce relevant documents, sources of potentially relevant data will inevitably go undiscovered. Or, the scope of preservation will be inadequate. If the opposing counsel obtains a sanctions order, it will characterize the discovery-related conduct as a “fraud,” and seek to pierce the attorney-client privilege by invoking the crime-fraud exception.

via When E-Discovery Is Used as a Weapon.

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The Impact Of E-Discovery On Litigation Trends

May 4, 2010 By Leave a Comment

The Editor interviews Alan S. Naar , Vice Chair of the Litigation Department of Greenbaum, Rowe, Smith & Davis LLP. Mr. Naar is also Chair of the Alternative Dispute Resolution Practice Group at Greenbaum, Rowe, Smith & Davis LLP.

Editor: Describe cases in which extensive e-discovery was threatened but which were settled in order to avoid discovery costs.

Naar: E-discovery is a fact of life in all litigation today and has been for some time now. One trend is to notify an adversary at the time litigation is filed, or even earlier, of the need to establish a litigation hold – if one has not already been put in place because of the anticipation of litigation – regarding certain documents and other materials maintained or stored in both hard copy and in electronic format. Litigators no longer wait until initial discovery requests are served, and rule changes now require counsel to meet and confer immediately upon the commencement of litigation to discuss issues involving electronically stored information (“ESI”). As a result, the cost benefit analysis engaged in by parties and their counsel as to whether to litigate or settle occurs earlier in litigation or even before litigation is filed. The costs and anticipated costs of e-discovery has thus had an impact on the settlement calculus. While the cost of discovery has always been a significant factor in the determination of whether or when a case should be settled, the costs related to extensive e-discovery have further pushed the scales toward settlement even when the producing party can make a convincing argument that all or some of those costs should be shifted to the party seeking the discovery. At the same time, parties seeking extensive e-discovery argue, based upon discovery of the adversary’s computer systems and back-up protocols, that the discovery sought should be easier and cheaper to produce because it doesn’t have to involve the production of a room full of boxes of hard copy documents, but can be burned to computer disks at the push of a button. These issues have brought about new twists to traditional issues such as the inadvertent production of privileged materials and the entry of protective orders. As a result, lawyers are spending more and more time speaking to their clients, their adversaries, and the courts to resolve the multitude of issues that now arise because most documents and materials are generated and stored electronically. It is unclear whether recent calls by reputable groups such as the American College of Trial Lawyers for fact-based pleading, limited discovery, and mandated proportionality will have an impact on the run-away train of e-discovery. One thing remains clear: an even greater percentage of cases are likely to settle because of e-discovery issues.

[continued]  The Impact Of E-Discovery On Litigation Trends.

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E-Discovery Threatens to ‘Litigize’ Arbitration | The Recorder

April 16, 2010 By Leave a Comment

In December 2008, the International Institute for Conflict Prevention and Resolution issued its “Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration.” It is intended to operate in conjunction with its domestic and international non-administered arbitration rules. The institute articulates the general principle of e-discovery as follows:

In making rulings on disclosure, the tribunal should bear in mind the high cost and burdens associated with compliance with requests for the disclosure of electronic information. … E-mail and other electronically created documents found in the active or archived files of key witnesses or in shared drives used in connection with the matter at issue are more readily accessible and less burdensome to produce when sought pursuant to reasonably specific requests. Production of electronic materials from a wide range of users or custodians tends to be costly and burdensome and should be granted only upon a showing of extraordinary need. Requests for back-up tapes, or fragmented or deleted files should only be granted if the requesting party can demonstrate a reasonable likelihood that files were deliberately destroyed or altered by a party in anticipation of litigation or arbitration and outside of that party's document-retention policies operated in good faith.

The term “extraordinary need” is not defined in the institute's protocol.

The protocol does address various “modes” of electronic disclosure, ranging from minimal to extensive, and directs the parties to meet and confer as to an agreed “mode” prior to the first scheduling conference, and to take up the matter with the panel at that conference.

In August 2008, the International Chamber of Commerce‘s International Chamber of Commerce’s Task Force on Production of Electronic Documents in Arbitration began its work. It was tasked to study the effects of e-discovery in international arbitration and to make recommendations on the subject of production of electronically stored information in such proceedings. A recently issued draft report suggests addressing e-discovery in arbitration as early as possible. Among other questions, the report suggests parties ask whether there will be e-discovery, how electronic documents will be preserved, where they will be pursued and what procedures parties will follow in requesting and responding to discovery requests. In addition, parties should determine in what form the documents will be produced and whether any privilege and waiver agreements will apply during the process.

The draft report identifies techniques for managing ESI production, including limiting the scope and source of production, excluding metadata or data embedded in documents, restricting dates, using specific search terms and data sampling, and disclosing and inspecting electronic sources. In addition, it suggests using independent electronic document experts. It also suggests shifting costs, so that discovery is shared more equally by the parties.

via E-Discovery Threatens to ‘Litigize’ Arbitration.

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