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New York State Bar Association Releases Practitioner’s Guide to E-Discovery

October 31, 2011 By Leave a Comment

To help lawyers and judges navigate the burgeoning and challenging electronic discovery landscape, the New York State Bar Association has issued guidelines for best practices that offer extensive practical advice on e-discovery issues in state and federal courts in New York.

E-discovery is the preparation, preservation, collection, processing, review, and production of evidence in electronic form — including email, texts, social media, the “cloud,” etc. — in response to business, regulatory, or legal requirements.

Presented in a clear and concise manner, the new publication, Guidelines for Best Practices in E-Discovery in New York State and Federal Courts is available free of charge at www.nysba.org/e-discovery.

State Bar President Vincent E. Doyle III of Buffalo (Connors & Vilardo LLP), said, “Whether documents are stored on Facebook, in an iPad, in email, or in the “cloud,” members of the legal profession must understand their legal responsibilities in preserving, collecting and producing the electronically stored information. In a world where e-discovery is fast becoming standard ‘discovery,’ it is imperative that lawyers understand this emerging area of evidence so we can fulfill our obligations to our clients and the courts.

via New York State Bar Association Releases Practitioner’s Guide to E-Discovery.

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Get your house in order with Early Data Assessment: Part I – Inside Counsel

October 26, 2011 By Leave a Comment

If you build a house with a weak foundation, the building is sure to fall apart. The same holds true for e-discovery—if you don’t pay attention to the early stages and properly calculate from the beginning, you’re in for a world of pain down the line.

From information management to identification, preservation and collection, the left side of the industry standard Electronic Discovery Reference Model (EDRM) is truly the foundation of the electronic discovery process. Corporations face this challenge in litigation on a regular basis, and if the house falls down, the finger-pointing will begin.

Picture the EDRM turned 90 degrees to the left, so it stacks up vertically. From that angle, the data makeup of a legal matter’s possibly relevant Electronically Stored Information (ESI) forms the bedrock for successful data preservation, collection, analysis and review strategy. At this nascent stage, Early Data Assessment becomes important.

What is Early Data Assessment?

Early Data Assessment (EDA) has evolved recently as an integral part of the EDRM far-left side workflow. EDA involves preliminary evaluations of data early in the life of a matter. It can include examining the technology and data sources possibly involved in the specific legal matter, not to mention the metadata about that ESI.

The idea behind EDA is to determine the types of data to be potentially preserved, gathered and analyzed, maybe to identify gaps or overlaps in the data, and to begin developing a variety of lists that can be used to help scope the project. EDA also can entail working with the ESI to better understand its substantive content, construct and evaluate potential story lines, craft discovery strategies, and develop e-discovery cost estimates and litigation budgets.

The EDA process is not to be confused with Early Case Assessment which typically relates to assessing legal liability. By contrast, Early Case Assessment usually happens at the onset of a matter as inside or outside counsel assess the viability of a matter, compare it against similar past matters, determine whether insurance coverage may come into play, make decisions about what counsel to retain, and engage in other similar activities focusing on evaluating the entire case early.

via Get your house in order with Early Data Assessment: Part I.

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Why E-Discovery Cooperation Is Best for Both Sides | Law.com

July 14, 2011 By Leave a Comment

Mention “cooperation between parties” to a group of litigators and you usually get facetious exhortations to hold hands and sing “Kumbaya” or “We Are the World.” Respond that you are not talking about utopian fantasies, but ways for both sides to get what they want (or, at least, paying props to Mssrs. Jagger and Richards, what they need), the group will usually respond that cooperation in litigation, like communism, always looks great in theory but never works in practice.

When dealing with e-discovery, however, cooperation can and does work. Once the parties understand what is at stake, skeptical posturing can give way to steps that actually benefit both sides.

WHAT’S AT STAKE

Interestingly, the economic philosopher who best understood the benefits of cooperation was not Karl Marx but Adam Smith, who explored in “The Wealth of Nations” his postulate that economic actors act in their enlightened self-interest and so the free marketplace was the best setting for them. The same holds true here; so what is key is that the parties understand what their enlightened self-interest is.

Absent exceptions, producing parties bear the costs of preservation, collection, processing, searching, reviewing, and producing e-discovery. As has caught the attention of one, two, or several million people over the last number of years, those costs can be considerable. Thus, it is in the enlightened self-interest of the producing party to minimize e-discovery costs. Minimizing such costs in improper ways, however, can lead to dire consequences. In the “poster child” spoliation case of Zubulake v. UBS Warburg, the failure to preserve, collect, and produce e-discovery properly led first to increased e-discovery costs as the producing party had to try to find later, at a much higher cost, what it did not preserve earlier at a lower cost, and then to dire sanctions for spoliation.

via Why E-Discovery Cooperation Is Best for Both Sides.

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Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway

January 5, 2011 By Leave a Comment

Highlights:

Electronic discovery is one of the most important and prominent issues confronting the legal industry today. E-Discovery is the buzzword in litigation and it certainly has earned this status, but its notoriety can at times belie the legal community’s tender grasp of its many complexities and implications. Paralegals and legal assistants, the “case managers” during discovery, are perhaps the people most dramatically impacted by the way electronic discovery continues to change case workflow, yet many paralegals and other legal professionals remain unprepared to thoroughly manage it. This audio conference introduces you to e-discovery basics and helps you understand the complexities and pitfalls of e-discovery projects large and small. The program uses real-life examples to compare and contrast various approaches to electronic data preservation, collection and review. Discover which strategies are more efficient and effective in different situations. Join us for an insightful analysis of e-discovery intricacies and management strategies.

Key Agenda Points

* How Does E-Discovery Differ From Traditional Methods of Discovery?

* Where Can You Find Electronically Stored Information?

* Electronic Evidence Preservation Strategies

via Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway.

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Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway

January 5, 2011 By Leave a Comment

Highlights:

Electronic discovery is one of the most important and prominent issues confronting the legal industry today. E-Discovery is the buzzword in litigation and it certainly has earned this status, but its notoriety can at times belie the legal community’s tender grasp of its many complexities and implications. Paralegals and legal assistants, the “case managers” during discovery, are perhaps the people most dramatically impacted by the way electronic discovery continues to change case workflow, yet many paralegals and other legal professionals remain unprepared to thoroughly manage it. This audio conference introduces you to e-discovery basics and helps you understand the complexities and pitfalls of e-discovery projects large and small. The program uses real-life examples to compare and contrast various approaches to electronic data preservation, collection and review. Discover which strategies are more efficient and effective in different situations. Join us for an insightful analysis of e-discovery intricacies and management strategies.

Key Agenda Points

* How Does E-Discovery Differ From Traditional Methods of Discovery?

* Where Can You Find Electronically Stored Information?

* Electronic Evidence Preservation Strategies

via Teleconference: Dynamic E-Discovery Tips for Paralegals : ParalegalGateway.

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Five E-Discovery Landmines for IT to Avoid

September 10, 2010 By Leave a Comment

Nothing brings IT and legal departments together more than electronic discovery. E-discovery can be a complex and often-lengthy process encompassing identification, preservation, collection, preparation, review and production of electronically stored information in response to a legal or government inquiry. An ad hoc process five years ago, e-discovery today has become a critical, routine and rapidly growing business process within the enterprise.

Two significant long-term trends are driving the dramatic increase in e-discovery. First is the rapid growth in ESI, which is increasing around 30 percent per year.

Second is the continuous increase in litigation and government inquiries. According to a recent Enterprise Strategy Group survey, approximately 53 percent of respondents expect the number of lawsuits and regulatory inquiries to increase by at least 20 percent in 2010, with 13 percent expecting an increase of 50 percent or more. The survey also found that, in response to these expectations, 73 percent of enterprises plan to implement e-discovery this year.

At its core, e-discovery typically starts out as an IT issue – more specifically, a storage issue that grows in complexity parallel with the growth of data volumes within an organization. By the final stages, e-discovery becomes primarily a legal issue. Neither department can conduct its e-discovery role in a vacuum, because the way in which IT fundamentally enables the process – and the ensuing cooperation between the two departments throughout – can critically affect the legal team’s end result. Because IT is the starting point, however, it is in a unique position where the core decisions, strategies and systems that IT oversees hold the potential to serve up significant rewards not just to the IT and legal departments’ workflow and budgets, but to the enterprise as a whole.

The following list, detailing the top five landmines to avoid in e-discovery from an IT and storage perspective, offers key considerations to help IT storage personnel prepare for their emerging and vital role in launching and enabling this business process. The information draws upon input from industry experts as well as IT and corporate legal departments at Fortune 2000 enterprises that have had success with e-discovery.

via Five E-Discovery Landmines for IT to Avoid.

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Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law

February 11, 2010 By Leave a Comment

As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.”  In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:

• Discovery steps should be proportionate.  Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.

• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.

• Parties should be prepared to disclose all relevant electronic documents.

• Parties should agree as early as possible on the format in which electronic information will be produced.

via Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law.

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