How Defensible and Repeatable are your eDiscovery Processes?<br />San Francisco, CA <br />April 28, 2011<br />Alex Ponce d...
Introduction<br />The opinions and views expressed here are entirely our own and do not necessarily represent our employer...
Caselaw<br />Pension Committee v. Banc of America  	685 F.Supp.2d 456 S.D.N.Y., 2010<br />Rimkus Consulting Group, Inc. v....
Pension Committee  685 F.Supp.2d 456 S.D.N.Y., 2010<br />Issue was whether failure to issue legal hold was per se negligen...
Rimkus 688 F.Supp.2d 598 S.D.Tex., 2010<br />Treated as spoliation issue:  alleged to have destroyed relevant information ...
Orbit One271 F.R.D. 429 S.D.N.Y., 2010<br />Judge Francis in Orbit One disagrees with Pension Committee does not believe t...
Tracinda 502 F.3d 212 C.A.3 (Del.), 2007<br />This is not an e-discovery case, but involved the discovery by defendant of ...
In-House<br />If you’re managing the process in-house have you:<br />Created a cross-functional steering committee?<br />D...
In-House<br />Cost containment starts at home…<br />Federal rules and case law allow for routine destruction in the ordina...
Outside Counsel<br />You relying on outside counsel:<br />What is their eDiscovery expertise?<br />How familiar are they w...
Vendors<br />Are you relying on vendor(s); if so do you know:<br />Their process?<br />Their tools?<br />When they upgrade...
Vendors<br />Identifying potential vendors<br />Establish the scope and need<br />Demos, pilots, and testing<br />Security...
Best Known Methods<br />Make it repeatable<br />Document the standards and procedures<br />Build internal relationships<br...
How Defensible and Repeatable are your eDiscovery Processes?<br />The panel’s PowerPoint presentation will be available th...
IQPC eDiscovery: How Defensible and Repeatable are your eDiscovery Processes?
Upcoming SlideShare
Loading in...5
×

IQPC eDiscovery: How Defensible and Repeatable are your eDiscovery Processes?

767

Published on

IQPC eDiscovery: How Defensible and Repeatable are your eDiscovery Processes?

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
767
On Slideshare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
0
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

IQPC eDiscovery: How Defensible and Repeatable are your eDiscovery Processes?

  1. 1. How Defensible and Repeatable are your eDiscovery Processes?<br />San Francisco, CA <br />April 28, 2011<br />Alex Ponce de León<br />Justin Myers<br />Clinton Field<br />
  2. 2. Introduction<br />The opinions and views expressed here are entirely our own and do not necessarily represent our employer’s position, strategies, or opinions. <br />2<br />
  3. 3. Caselaw<br />Pension Committee v. Banc of America   685 F.Supp.2d 456 S.D.N.Y., 2010<br />Rimkus Consulting Group, Inc. v. Cammarata 688 F.Supp.2d 598 S.D.Tex., 2010<br />Orbit One Communications, Inc. v. Numerex Corp. 271 F.R.D. 429 S.D.N.Y., 2010<br />Tracinda Corp. v. DaimlerChrysler AG 502 F.3d 212 C.A.3 (Del.), 2007<br />3<br />
  4. 4. Pension Committee 685 F.Supp.2d 456 S.D.N.Y., 2010<br />Issue was whether failure to issue legal hold was per se negligent<br />None of the plaintiffs were found to have acted intentionally, however, the court held that any failure to preserve is, at the least, negligence and warrants the imposition of some sanction.<br />Court criticized the plaintiffs for their failure to collect from key custodians, failure to issue written litigation hold notices and cautioned against reliance on self-collection by custodians.<br />4<br />
  5. 5. Rimkus 688 F.Supp.2d 598 S.D.Tex., 2010<br />Treated as spoliation issue: alleged to have destroyed relevant information willfully to prevent use at trial<br />Admitted deleting immediately prior to filing complaint<br />Recovered (not all) were both good and bad<br />Discusses reasonableness:<br />“Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established applicable standards.”<br />Applies the "relevance" and "prejudice"factors of the adverse inference analysis are often broken down into three subparts: <br />"(1) whether the evidence is relevant to the lawsuit; (2) whether the evidence would have supportedtheinference sought; and (3) whether the nondestroying party has suffered prejudice from the destruction of the evidence." (which Pension Comm'ee did apply)<br />5<br />
  6. 6. Orbit One271 F.R.D. 429 S.D.N.Y., 2010<br />Judge Francis in Orbit One disagrees with Pension Committee does not believe that a written legal hold is necessarily the best approach in every matter.<br />Judge Francis incorrectly interprets Pension Committee . <br />“The implication of Pension Committee, then, appears to be that at least some sanctions are warranted as long as any information was lost through the failure to follow proper preservation practices, even if there have been no showing that the information had discovery relevance, let alone that it was likely to have been helpful to the innocent party. If this is a fair reading of Pension Committee, then I respectfully disagree.”<br />Judge Francis also went out of his way in Orbit One to comment negatively on the principle of proportionality:<br />“…this standard may prove too amorphous to provide much comfort to a party deciding what files it may delete or backup tapes it may recycle.” <br />6<br />
  7. 7. Tracinda 502 F.3d 212 C.A.3 (Del.), 2007<br />This is not an e-discovery case, but involved the discovery by defendant of handwritten notes, previously not produced, during trial. <br />Resulted in 16(f)(1) sanctions because party failed to obey pretrial order. <br />The district court, among other things, postponed the trial. The Third Circuit affirmed.<br />Plaintiff, which lost the case on the merits, agreed to take $556,061, or 50% of what it incurred, as a sanction, which the district court promptly imposed.<br />Court stated that “[p]roduction errors discovered at the pre-trial stage of litigation will result in little, if any, expense or prejudice to the opposing party and therefore are not likely to warrant the imposition of sanctions under Rule 16(f).  On the other hand, if a litigant knows that even inadvertent failure to produce relevant documents may result in a sanction when the existence of the documents is discovered during trial, the litigant may exercise more care in ensuring that all relevant documents are produced.”<br />7<br />
  8. 8. In-House<br />If you’re managing the process in-house have you:<br />Created a cross-functional steering committee?<br />Documented your process?<br />What is your litigation hold process?<br />Done due-diligence on the tools you are using?<br />Obtained proper training for your employees?<br />Identified your 30(b)(6) witness?<br />8<br />
  9. 9. In-House<br />Cost containment starts at home…<br />Federal rules and case law allow for routine destruction in the ordinary course of business (OCB).<br />Be aware of reasonably anticipated litigation.<br />Establish procedures for targeted collection.<br />Review your retention and destruction protocols.<br />Plan the scope and approach early.<br />Track status and budgets through regular reporting.<br />9<br />
  10. 10. Outside Counsel<br />You relying on outside counsel:<br />What is their eDiscovery expertise?<br />How familiar are they with IT platforms?<br />Coordinating strategy across different cases?<br />What is their process for privilege reviews?<br />Who picks the vendors?<br />Who pays the vendors?<br />10<br />
  11. 11. Vendors<br />Are you relying on vendor(s); if so do you know:<br />Their process?<br />Their tools?<br />When they upgrade or make changes to either?<br />Terms and ease of termination?<br />Security compliance?<br />11<br />
  12. 12. Vendors<br />Identifying potential vendors<br />Establish the scope and need<br />Demos, pilots, and testing<br />Security and connectivity<br />Negotiating a contract<br />Negotiated volume driven price points<br />Require vendor tracking logs<br />Require staffing commitments<br />Hosting costs<br />12<br />
  13. 13. Best Known Methods<br />Make it repeatable<br />Document the standards and procedures<br />Build internal relationships<br />Do it well<br />Implement the standards and procedures<br />Develop the technical infrastructure<br />Develop the human capital<br />Do it swiftly<br />Early case assessment<br />Measure and improve<br />13<br />
  14. 14. How Defensible and Repeatable are your eDiscovery Processes?<br />The panel’s PowerPoint presentation will be available throughSlideShare.<br />To get your copy, simply visit http://www.slideshare.net/AlexPDL/ and look for the IQPC presentation.<br />14<br />

×