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Ppt 6 14 2010


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E-discovery thought leaders will discuss the impact of recent significant opinions such as the Pension Committee decision and Rimkus on legal requirements and show how to accurately identify preservation triggers, identify the right custodians and data sources at the right time, manage internal compliance risks, set-up a courtroom ready preservation process, and effectively utilize technology for cost savings and competitive advantage

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Ppt 6 14 2010

  1. 1. Automation. Collaboration. Integration. E-Discovery Luncheon Practical Implications of Recent E-Discovery Rulings: Advice from Outside Counsel
  2. 2. Today’s E-Discovery Wranglers Seth Rothman Partner and Co-Chair of the E-Discovery Practice Group Hughes Hubbard & Reed LLP Thomas Mueller Partner, Co-head of the E-Discovery Task Force Morrison & Foerster LLP William Belt Shareholder and Leader, E-Discovery Solutions Practice Group LeClairRyan LLP Farrah Pepper Of Counsel and Vice Chair, Electronic Discovery and Information Law Practice Group Gibson Dunn & Crutcher LLP Moderated By: Sarah Centrella Director of Fusion Cloud Exterro Inc
  3. 3. Overview The changing landscape of E-discovery 1 Recent rulings and opinions 2 The duty to preserve 3 Creating a courtroom ready preservation process 4 Practical advice 5 Preservation to-do list
  4. 4. Pension Committee Recap PLAINTIFFS Group of institutional Investors DEFENDANTS Two hedge funds et al DISPUTE $500 million securities fraud action
  5. 5. Pension Committee Case Summary Oct. 2007: Apr. – Jul. 03: Plaintiffs ordered to Hedge fund placed into Feb. 12, 2004: Early 2007: provide declarations Bankruptcy Receivership Plaintiffs bring Stay expires; regarding efforts to action to recover plaintiffs institute preserve and investment losses legal hold produce data Oct. – Nov. 03: Plaintiffs retain counsel Aug. 2007: Feb. 2004: Plaintiffs’ depositions PSLRA stay goes into effect; reveal gaps in plaintiffs’ no legal hold issued before document productions or during stay Oct. 07 – Jun. 08: Additional depositions reveal discovery failures, misstatements in declarations; some declarations amended
  6. 6. Pension Committee Case Summary WANTED! WANTED! WANTED! 2m Hunnicutt Coronation Did not preserve or produce Ignored key employees; Ignored key witnesses; documents prior to 07; made incorrect ignored repositories known to produced large volume of declarations; deleted contain potentially relevant emails on Aug. 09, after emails data; delegated collection to opposing defendants’ motion untrained employees REWARD REWARD REWARD $550,000,000 $550,000,000 $550,000,000
  7. 7. Pension Committee Case Summary WANTED! WANTED! WANTED! Chagnon Bombardier Bombardier Plaintiffs Trusts Foundations Ignored key witnesses Ignored key witnesses; Failed to preserve files from did not search or key players; back-up tapes preserve files prior to overwritten; arbitrarily 2007 withheld documents REWARD REWARD REWARD $550,000,000 $550,000,000 $550,000,000
  8. 8. Pension Committee The Good, The Bad, and The Ugly… Backup tapes need not be Duty to preserve triggered It is gross negligence if you: preserved, provided they before litigation Fail to identify key players are not the sole source of commences, especially for and preserve their relevant information plaintiffs documents Self collection is Failure to issue document Fail to preserve data for permissible, as along as hold is grossly negligent and former employees there is attorney oversight sanctionable Fail to preserve backup Failure to suspend tapes that are the sole document retention and source information destruction policy is grossly negligent and sanctionable
  9. 9. Rimkus Decision Recap PLAINTIFFS Consulting firm (forensic engineering) DEFENDANTS Two former employees DISPUTE Enforcement of non-competition and non- solicitation agreements, misappropriation of trade secrets
  10. 10. Rimkus Decision: Facts June 2009: Jan./Feb. 07: Apr. 2009: Defendants Sept./Nov. 2006: Rimkus sues in Texas Rimkus moves Court to produce 60 emails Defendants resign federal court for breach of compel search of personal to create U.S. employment agreements email accounts; seeks Forensics, Inc. and misappropriation of sanctions against counsel trade secrets and defendants, including Nov. 2006: monetary sanctions Jun. 2009: Defendants sue in Search of personal Louisiana state court for email results in Mar. 2007: May 1, 2009: declaratory judgment additional production Discovery Court finds discovery regarding enforceability of begins in Texas efforts superficial and employment agreements permits subpoena to Oct. 2007: search/collect email Depositions begin — one maintained by third party Defendant produces just service provider two emails
  11. 11. Rimkus Decision: Facts Aug. 6, 2009: At discovery motion hearing, Court orders Sept. 2009: Feb. 2010: defendants to search At depositions, Defendants sanctioned accessible data; defendants reveal that reopens depositions they’ve been following their normal practice of deleting emails and never issued instructions to Aug. 28, 2009: preserve data Depositions reveal previously undisclosed personal email accounts Sept. 13, 2009: One defendant produces new loose media and paper files
  12. 12. Rimkus The Good, The Bad, and The Ugly… Adopts proportionality Duty of preservation often Scope of preservation is approach for judging triggered before litigation broad enough to cover all conduct commences, especially for responsive documents In 5th Circuit you need bad plaintiffs Rule 37(e) exceptions are faith to support severe Litigants cannot ignore, but not applicable after the sanctions must sample, sources of duty to preserve arises Takes into account data that are not readily prejudice and mitigation accessible efforts
  13. 13. Key Takeaways Legal holds are a must, courts require more than a memo Preservation obligations start early, especially for plaintiffs Sample data to determine scope of preservation — backup tapes Set a “standard of care” for eDiscovery
  14. 14. The Duty to Preserve When is the duty to preserve triggered? Receiving a Providing Notice to Filing of Claim with Preservation Letter Insurance Carrier Administrative Agency •Palgut v. City of Colorado •Phoenix Four, Inc. v. •Zubulake IV, 220 F.R.D. 12 Springs, No. 06-cv-01142, Strategic Resources, Inc., (S.D.N.Y. 2003) 2007 WL 4277564 (D. Colo. Dec. 3, 2007) Retaining No. 05-cv-4837 (S.D.N.Y. •Chirdo v. Minerals Counsel and Experts May 23, 2006) Technologies, Inc. No. 06- 5523, 2009 WL 2195135 •Silvestri v. GM, 271 F. 3d 583 ( July 23, 2009) (4th Cir. 2001) •Scalera v. Electrograph Sys., Inc. No. CV 08-50, •Wade v. TifflinMotorhomes, 2009 WL 3126637 (E.D.N.Y. Inc., No. 5:05-CV-1458, 2009 Sept 29, 2009) US Dist. LEXIS 99831 (N.D.N.Y. Oct. 27, 2009)
  15. 15. The Duty to Preserve Identifying preservation triggers Preservation duty Must be a probability When litigation is may being when of litigation, not just probable, not merely litigation is likely general concern possible •Wm. Thompson Co. v. •Realnetworks Inc., v. •Willard v. Caterpillar General Nutrition DVD Copy Control et Inc., 48 Cal. Rptr. 2d Corp., 593 F. Supp. al., 2009 U.S. Dist. LEXIS 607, 620-21 (Cal. Ct. 1443, 1455 (C.D. Cal 38221, at *28 (N.D. Cal. App 1995) 1984). 2009) •Rowe v. Albertsons, 116 Fed. App. 171, 175 (10th Cir. 2004) (applying Texas law)
  16. 16. The Duty to Preserve Application of this standard to Plaintiffs Must necessarily Duty to preserve Duty to preserve anticipate litigation triggered before arose when retained before complaint is litigation commences counsel filed •Pension Comm. Of the •Innis Arden Golf Club v. •Cyntegra, Inc. v. Idexx Univ. of Montreal Pitney Bowes, Inc., 257 Labs, Inc. No. 06 Civ. Pension Plan., 2010 F.R.D. 334, 340 (D. Conn 4170, 2007 U.S. Dist. U.S. Dist LEXIS 4546 at 2009) LEXIS 97417 WL *16 (S.D.N.Y January 15, 5193736, at *3 (C.D. 2010) Cal. Sept. 21, 2007)
  17. 17. Creating a Courtroom Ready Preservation Process Determine What Information Would be Relevant to Dispute Identify Each Data Source that Potentially Contains Relevant Information IF DATA SOURCE LIKELY TO IF DATA CONTAIN RELEVANT INFORMATION SOURCE NOT RESONABLY LIKELY TO Determine Degree of Accessibility of IF THERE IS HIGH CONTAIN Data Sources that are Likely to Contain DEGREE OF Relevant Information ACCESSIBILITY RELEVANT INFORMATION IF THERE IS LOW DEGREE OF ACCESSIBILITY YES Do Substantially Similar Copies of Relevant Information Exists in More Readily Accessible Data Source? NO YES In Cost or Burden of Preservation NO Preservation Not Excessive as Compared to the Preservation Required Required Relevance or Value of the Information? * Source: The Sedona Conference®
  18. 18. Creating a Courtroom Ready Preservation Process Determine Three Levels: PEOPLE PROCESS SOURCES
  19. 19. Creating a Courtroom Ready Preservation Process Scoping for Key Players and Data Sources Using interviews to determine preservation data sources and custodians Personal and automated interviews Pros and cons of self-collection Identifying outlier data
  20. 20. Creating a Courtroom Ready Preservation Process Monitoring and Tracking Compliance Legal hold follow-up is critical • Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007 WL 684001 (D. Colo. Mar. 2, 2007) • Green v. McClendon, No. 08-Civ-8496, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) Periodic reminders Modifications Track responses • Acorn v. Co. of Nassau,2009 WL 605859, (E.D.N.Y. Mar. 9, 2009)
  21. 21. Judicial Expectations Preserve promptly and accurately informed by facts Send well-written hold notices Think about non-custodial sources and processes (e.g., back-up tapes, shared servers, ex- or exiting employees) Be able to articulate why your protocols are defensible and reasonable Leave no “red flags” unexamined
  22. 22. Practical Advice Systematic protocols and processes may mitigate risks and burdens Be proactive versus reactive Increasing importance of documentation Utilize the meet-and-confer process wisely Strive for reasonable, cooperative, transparent, proportional and iterative e-discovery practices
  23. 23. Conclusion – Preservation “To Do” List Recognize a trigger Quickly and accurately determine scope Effect protocols to properly preserve Track follow-up and modify as needed Document the process to defend against criticism