ESI & Ethical ConsiderationsBe aware of problems, then avoid them                                        1
Ernie Svenson         ‣ Federal law clerk         ‣ Big firm lawyer         ‣ Solo lawyer         ‣ Weblog author         ‣...
It’s litigation timeDo you know where your client’s data is?                                           3
A true story
MorganStanley
Ron Perelman
$650 Million
Prove Fraud Reliance Damages
Backup tapesOops, we found 1,600 more of them!!!                                       9
Judge Maas
“Bad faith...”“Just assume fraud”
Trial Fraud Reliance Damages
$1.4 Billion
E-Discovery?  I don’t care      for it.
Hostage to technology
Agenda1   Problem    Too many ones and zeros2    Rules     Rules in a knife fight?3   Clients    High demand, low interest4...
Problem   1
65%of emails arenever printedout
The “Digital Divide” ‣ Paper was easy ‣ Paper was safe ‣ ESI is everywhere ‣ Too many types ‣ Too many sources ‣ Too easy ...
Costs of discoveryE-discovery increases the cost of litigation by asmuch as 25%         E-Discovery       Old-fashioned   ...
E-Discovery? It’s killing me!General Counsel     21
“Litigation habits from thedays of paper must berevised.”       –Honorable Lee Rosenthal                                  ...
Problem   1Rules     2
Procedure Rules updatedElectronically Stored Information (“ESI”)   Federal Cts                     ESI     Mississippi   D...
Commonly used terms         ESI    Electronically stored informationNative format   .doc, .PST, .xls, .pdf, .??? Reasonabl...
Key court cases  Zubulake   Who pays for e-discovery?   Morgan   Stanley             Backup tapes are expensive Qualcomm  ...
Problems   1Rules      2Clients    3
28
Thou shalt meet & confer   29
“it’s more important to ask theright questions than to know theright answers        –Craig Ball
Craig Ball‣   50 Questions to ask at a Meet    & Confer‣   Google that phrase                                    31
Litigation flowchartaccounting always for ESI Client          Identify   Discovery      Trial‣ Issues?      ‣ IT guys?   ‣ ...
Requests for ProductionIf a request does not specify a formfor producing electronically stored  “doesor formsspecify”     ...
Requests for ProductionIf a request does not specify a formfor producing electronically stored                  1.informat...
Requests for ProductionIf a request does not specify a formfor producing electronically stored                  2.informat...
Problem   1Rules     2Clients   3Ethics    4
Duties of lawyers ‣ Actively oversee ‣ Supervise (Rule 5.3) ‣ Not obstruct (Rule 3.4) ‣ Be diligent (Rule 3.4) ‣ Guard cli...
Why is key data so hard to gather?Failure to communicate leads to disaster                                           The p...
QualcommPatent InfringementFiled: 2005Tried: 2007Cross exam: what emails?
300,000 pages requested  but never produced
Conclusion:intentionally withheld
Result?$ 8.5 Million
Judge Major: “major errors”‣ “incredible  communications  breakdown”‣ Attys didn’t pay attention  to collections procedure...
Problem    1Rules      2Clients    3Ethics     4Conflicts   5
Duties of vendors ‣ Suggest options ‣ Preserve data ‣ Help with search ‣ Report illegal content ‣ Forensics?              ...
Duties of clients? ‣ Gather data properly? ‣ Keep attorney   informed? ‣ Blame attorney when   something goes   wrong.    ...
Real duties of attorneys ‣ Understand digital   technology ‣ Anticipate problems ‣ Remain paranoid ‣ Learn more about   te...
Key takeaways‣ Beware of what you  agree to‣ Digital data: elusive &  pervasive‣ Ignorance happens‣ Assume it’s you       ...
Ernie Svenson   (504) 669-5150                esvenson@gmail.com                                     50
E discovery & ethics
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E discovery & ethics

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Become aware of common E-Discovery problems and avoid ethical pitfalls

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E discovery & ethics

  1. 1. ESI & Ethical ConsiderationsBe aware of problems, then avoid them 1
  2. 2. Ernie Svenson ‣ Federal law clerk ‣ Big firm lawyer ‣ Solo lawyer ‣ Weblog author ‣ Speaker & consultant 2
  3. 3. It’s litigation timeDo you know where your client’s data is? 3
  4. 4. A true story
  5. 5. MorganStanley
  6. 6. Ron Perelman
  7. 7. $650 Million
  8. 8. Prove Fraud Reliance Damages
  9. 9. Backup tapesOops, we found 1,600 more of them!!! 9
  10. 10. Judge Maas
  11. 11. “Bad faith...”“Just assume fraud”
  12. 12. Trial Fraud Reliance Damages
  13. 13. $1.4 Billion
  14. 14. E-Discovery? I don’t care for it.
  15. 15. Hostage to technology
  16. 16. Agenda1 Problem Too many ones and zeros2 Rules Rules in a knife fight?3 Clients High demand, low interest4 Ethics You’re responsible for everything5 Conflicts Don’t assume anyone knows
  17. 17. Problem 1
  18. 18. 65%of emails arenever printedout
  19. 19. The “Digital Divide” ‣ Paper was easy ‣ Paper was safe ‣ ESI is everywhere ‣ Too many types ‣ Too many sources ‣ Too easy to replicate 19
  20. 20. Costs of discoveryE-discovery increases the cost of litigation by asmuch as 25% E-Discovery Old-fashioned Discovery
  21. 21. E-Discovery? It’s killing me!General Counsel 21
  22. 22. “Litigation habits from thedays of paper must berevised.” –Honorable Lee Rosenthal 22
  23. 23. Problem 1Rules 2
  24. 24. Procedure Rules updatedElectronically Stored Information (“ESI”) Federal Cts ESI Mississippi Dec. 2006 Pending
  25. 25. Commonly used terms ESI Electronically stored informationNative format .doc, .PST, .xls, .pdf, .??? Reasonably Accessible On hand, easy to get to? Clawback Oops, I sent you privileged info Metadata Like having X-Ray vision
  26. 26. Key court cases Zubulake Who pays for e-discovery? Morgan Stanley Backup tapes are expensive Qualcomm Coming up
  27. 27. Problems 1Rules 2Clients 3
  28. 28. 28
  29. 29. Thou shalt meet & confer 29
  30. 30. “it’s more important to ask theright questions than to know theright answers –Craig Ball
  31. 31. Craig Ball‣ 50 Questions to ask at a Meet & Confer‣ Google that phrase 31
  32. 32. Litigation flowchartaccounting always for ESI Client Identify Discovery Trial‣ Issues? ‣ IT guys? ‣ Respond ‣ Avoid adverse‣ Witnesses? ‣ Native ‣ Seek Inference!!! format?‣ Exposure? ‣ Where’s ‣ Forms?‣ Timefame? data?‣ Preserve data ‣ Preserve data
  33. 33. Requests for ProductionIf a request does not specify a formfor producing electronically stored “doesor formsspecify” not in which it isinformation, a party must produceit in a formordinarily maintained or in areasonably usable form or forms
  34. 34. Requests for ProductionIf a request does not specify a formfor producing electronically stored 1.information, a party must produce“ordinarily maintained”it in a form or forms in which it isordinarily maintained or in areasonably usable form or forms
  35. 35. Requests for ProductionIf a request does not specify a formfor producing electronically stored 2.information, a party must produce “reasonably usable”it in a form or forms in which it isordinarily maintained or in areasonably usable form or forms
  36. 36. Problem 1Rules 2Clients 3Ethics 4
  37. 37. Duties of lawyers ‣ Actively oversee ‣ Supervise (Rule 5.3) ‣ Not obstruct (Rule 3.4) ‣ Be diligent (Rule 3.4) ‣ Guard client secrets 37
  38. 38. Why is key data so hard to gather?Failure to communicate leads to disaster The problem Client Lawyer ‣ Client doesn’t want to look for data Key data ‣ Lawyer tends to rely too much on client & vendor ‣ Vendor has to cater to lawyer; Vendors has no access to client 38
  39. 39. QualcommPatent InfringementFiled: 2005Tried: 2007Cross exam: what emails?
  40. 40. 300,000 pages requested but never produced
  41. 41. Conclusion:intentionally withheld
  42. 42. Result?$ 8.5 Million
  43. 43. Judge Major: “major errors”‣ “incredible communications breakdown”‣ Attys didn’t pay attention to collections procedures‣ But no bad faith; so no sanctions 43
  44. 44. Problem 1Rules 2Clients 3Ethics 4Conflicts 5
  45. 45. Duties of vendors ‣ Suggest options ‣ Preserve data ‣ Help with search ‣ Report illegal content ‣ Forensics? 45
  46. 46. Duties of clients? ‣ Gather data properly? ‣ Keep attorney informed? ‣ Blame attorney when something goes wrong. 46
  47. 47. Real duties of attorneys ‣ Understand digital technology ‣ Anticipate problems ‣ Remain paranoid ‣ Learn more about technology 47
  48. 48. Key takeaways‣ Beware of what you agree to‣ Digital data: elusive & pervasive‣ Ignorance happens‣ Assume it’s you 48
  49. 49. Ernie Svenson (504) 669-5150 esvenson@gmail.com 50

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