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EDI 2009 Smaller Stakes Litigation




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    EDI 2009 Smaller Stakes Litigation EDI 2009 Smaller Stakes Litigation Presentation Transcript

    • E-Discovery In Smaller Stakes Cases Hon. Joseph R. Slights, III Superior Court of Delaware
    • The Case Management Order
      • The Court’s First Contact With Counsel
        • After last responsive pleading is filed
        • Letter to counsel setting the case management conference
        • Sets forth a “to do” list prior to the conference
    • The “To Do” List
      • Meet and confer
        • Same side of the v
          • Is a coordinator necessary?
          • How best to coordinate/communicate among the parties and with the Court
          • Strategies for more efficient discovery
          • Joint defense?
    • The “To Do” List
      • Meet and Confer
        • With the other side of the v
          • Early ADR, motion practice, discovery sequencing, amendments to pleadings, additional parties, further court conferences (status), pretrial conference, trial date
          • E-discovery
            • Scope (this is critical and requires much advance thought and planning)
            • Preservation
            • IT issues (exchange system info)
            • Format (with emphasis on cost containment)
            • Protective Orders and Claw Back Orders
    • The “To Do” List
          • E-discovery (cont’d)
            • Outside vendor vs. in house IT
            • Sequencing E-discovery with Agreed Upon Limits
    • The Conference
      • Come With Agreements (Judges LOVE This)
      • Be Prepared to Make Your Pitch On E-Discovery
        • Nature of Case and how e-discovery fits in
        • Limitations of clients (costs and staffing, business interruption)
        • What Do You Really Need?
        • Is the Court’s Default Standard Acceptable
          • Suggestions to modify
    • The Key
      • Don’t Allow The Litigation (i.e. E-discovery) To Consume The Controversy
      • EDUCATE THE COURT – be VERY specific regarding issues in controversy, systems, cost, burden
        • much more useful than citations to case authority
      • Emphasize proportionality – American College of Trial Lawyers findings
      • Know your State Court’s Rules – e.g. is there a distinction between “reasonably accessible” and “not reasonably accessible” as in Fed. R. Civ. P. 26(b)(2)(B)?
      • Other Ways To Get The Same Information?
      • Rolling Production and Sampling
      • Capture Data vs. Removal of Hard Drives
    • The Case Management Order
      • Do Not Leave The Case Management Conference Without Asking For:
      • Clawback Order
        • Outlining process for claiming inadvertent production of privileged material
        • And process for getting it back
        • Sample in materials
      • E-discovery, including
        • Preservation of ESI
        • Scope of production (custodians, search terms, time period, file types)
        • Scope of discovery
        • Assertion of privilege and confidentiality
        • Allocation of costs
        • Reach agreement or subject to Court’s default standard