The document discusses the growth of electronic data and its impact on e-discovery in litigation. It notes that e-discovery cases and sanctions are on the rise as data volumes grow exponentially. Various judges weigh in on parties' obligations around e-discovery and the consequences for failing to meet those obligations. The use of cloud computing and managed services is presented as a way for law firms to more efficiently handle e-discovery. The document concludes by emphasizing the need for a coordinated approach and proper resources to successfully manage e-discovery.

1. eDiscovery & Litigation
Management Solutions
Daniel Gold
Twitter: @LexisGold

2. E-discovery
Cases
1
Benefits of
“The Cloud”
2
Growth in
Data
3

3. E-discovery
Cases
1
Benefits of
“The Cloud”
2
Growth in
Data
3

4. eDiscovery cases
on the rise
Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011

5. Sanction filings on the rise
Over 50% increase in 1 year!
Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011

6. Sanction awards on the rise
Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011

7. 1989

8. Judge Wayne E. Alley

9. “
If there is a hell to which
disputatious, uncivil, vituperative
lawyers go, let it be one in which
the damned are eternally
locked in discovery
disputes with other lawyers of
equally repugnant attributes.
Kreuger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip. op. (W .D. Okla. Feb. 24, 1989).

10. Plaintiff’s attorney “simply did not
understand the technical
depths to which electronic
discovery can sometimes
go.”
Chief Judge Arthur J. Gonzalez
GFI Acquisition, LLC v. Am. Federated Title Corp. (In re
A&M Fla. Props. II, LLC), 2010 Bankr. LEXIS 1217
(Bankr. S.D.N.Y. Apr. 7, 2010)

11. How many times can a litigant ignore his discovery
obligations before his misconduct catches
up with him … the record shows that [Plaintiff]
failed to comply with a document request and two
court orders compelling production of materials
within the party’s control.
Judge Neil Gorsuch
Lee v. Max International, LLC, 2:09-CV-0175-DB, US
Court of Appeals, 10th Circuit (May 3, 2011)

12. Plaintiff has evidenced a pattern
of
inexcusable disregard for the
authority of this Court … and the larger
civil discovery process and warrants imposition of
substantial ameliorative and punitive sanctions.
Judge Mary S. Scriven
Bray & Gillespie Mgmt., LLC v. Lexington
Ins. Co., 2010 U.S. Dist. LEXIS 400 (M.D.
Fla. Jan. 5, 2010)

13. There still is no doubt in this Court's mind that this
massive discovery failure resulted
from significant mistakes,
oversights, and miscommunication
on the part of both outside counsel and Qualcomm
employees.
Judge Barbara L. Major
Qualcomm Inc. v. Broadcom Corp.,
2010 U.S. Dist. LEXIS 33889 (S.D. Cal. Apr. 2, 2010)

14. “Those who cannot remember the past
are condemned to repeat it … the duty to
preserve means what it says and that a failure to
preserve records … will inevitably result in the
spoliation of evidence.”
Judge Shira Scheindlin
Pension Comm. of the Univ. of Montreal Pension
Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d
456, 462 (S.D.N.Y. 2010)

15. The defendant’s “acts of spoliation be
treated as contempt of this court, and
h
that as a sanction ...
e be imprisoned
for a period not to exceed two years”
Judge Paul Grimm
Victor Stanley, Inc. v. Creative Pipe, Inc.,
2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)

16. To impose sanctions for
spoliation in the 4th circuit,
there must be:
1) bad faith
2) willfulness,
3) gross negligence, or
4) ordinary negligence
Judge Paul Grimm
Victor Stanley, Inc. v. Creative Pipe, Inc.,
2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)

17. Rule 37(b)(2)
Thanks
to
Ralph
Losey
on
the
inspira2on
on
the
graphic!

18. The defendant willfully violated … [had]
blatant disregard for the Court's Discovery
Order … [and showed a] lack of
appreciation of the discovery process in
general.
Judge T. John Ward
Green v. Blitz U.S.A., Inc.,
2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)

19. The defendant had to provide a copy of this Order
to every Plaintiff in every case it had against it
going back two years or pay $500k as a fine if it
did not within 30 days.
For the next 5 years, it has to attach a copy of this
Order with its first pleading or filing on every new
lawsuit, no matter in what capacity they are
involved.
Judge T. John Ward
Green v. Blitz U.S.A., Inc.,
2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)

21. Lawyers, Clients & Judges “have an
interest in establishing a culture
of cooperation in the discovery
process. Over-contentious discovery is
a cost that has outstripped any advantage
in the face of ESI and the data deluge…

22. “…It is not in anyone’s interest to waste
resources on unnecessary disputes, and
the legal system is strained by
‘gamesmanship’ or ‘hiding the ball,’
to no practical effect … [and]
it is an exercise in economy and
logic.”

23. The essence of the proportionality principle
is that the legal system ought not to
make e-discovery so burdensome
that people with meritorious claims are
deprived of their ability to win.
Richard A. (Doc) Schneider
Partner, E-discovery Practice Group
King & Spalding
Source: The Metropolitan Corporate Counsel, April 2010

24. Ultimately, our
challenge is to
achieve a proportional result, so
that we don't spend $500,000 on
electronic discovery in a case that's worth
$1 million.
Browning Marean III
Senior Counsel at DLA Piper

25. The idea is to take the 100
gigabytes of data you just collected
… process and review only what is
potentially relevant. You can wind
up saving hundreds of
thousands of dollars in a
case.
Kelly F. Farmer
Manager of Data Governance and Discovery Services

26. E-discovery
Cases
1
Benefits of
“The Cloud”
2
Growth in
Data
3

27. What s a gigabyte?

28. 256 kb!

29. 1.4 MB!

30. 100 MB!

31. 1 GB!

32. 75,000
Number physical pages that equal 1GB of data

34. 350,000
Number of physical pages that make up 1 DVD of data

35. Cornell Law Library!
1 Terabyte
35

36. Library of Congress!
17 Million Books!
137 Terabytes
36

37. 1,024 TB
equals 1 Petabyte

38. Want to see what a
petabyte looks like?
16GB iPad!

39. 2,717 feet tall!!
2,604 feet tall!!
62,500 fully
loaded 16GB iPads!
Burj Dubai Tower!

40. 1,048,576 TB
equals 1 Exabyte

41. 1,073,741,824 TB
equals 1 Zettabyte

42. 1,099,511,627,776 TB
equals 1 Yottabyte

43. The bad news?

44. It won t get better.

45. 800%
The growth of “Big Data” (massive amounts of unstructured
data that are not traditionally stored in a Relational form in
enterprise databases) in the next 5 years, says Gartner.

46. Client data is doubling
every 3 years
IDC (International Data Corporation)
estimates that by 2020, transactions on the
Internet will reach 450 billion per day!
Enterprise-generated content
will exceed 240 Exabytes!

47. Court and Regulatory-Imposed ESI
Federal and State Rules and Case Law
Court Imposed Responsibility to Monitor Client’s ESI
Sanctions for Failure to Disclose
Capability of In-House IT Systems &
Administrative Costs
Recovering IT Costs in Compliance
with Ethical Rules
Increased Regulatory & Litigation
Workload

48. E-Discovery spend to hit
$1.5B
by 2013
Gartner Research Study 2011

49. Average Outside Counsel Total Litigation Costs
$66M increase
in 8 years
Source: Lawyers for Civil Justice et al., Statement on Litigation Cost Survey of Major Companies (May 2010)

50. E-Discovery spend increased
12%
over last year
Source: Fulbright's 7th Annual Litigation Trends Survey Report

51. 400%
Increased demand for AFA’s since 2008

52. Processing
Preserva2on
Informa2on
Management
Document
Review
Iden2fica2on
Produc2on
Presenta2on
Collec2on
Analysis
Volume
Relevancy

53. E-discovery
Cases
1
Benefits of
“The Cloud”
2
Growth in
Data
3

54. What is the cloud?
54

55. Electric Grid
55

57. 3 flavors

58. IaaS
(Infrastructure-as-a-Service)
PaaS
(Platform-as-a-Service)
SaaS
(Software-as-a-Service)

61. 61

62. Gartner Highlights Key Predictions for IT
Organizations & Users in 2010 and Beyond
By 2012, 20 percent of businesses will own no IT assets.
By 2013, mobile phones will overtake PCs as the most
common Web access device worldwide.
By 2014, over 3 billion of the world's population will be able to
transact electronically via mobile or Internet technology.
http://www.gartner.com/it/page.jsp?id=1278413

63. What about law firms?

64. 64

65. Why use it for your firm?
Increase your firm's capacity
Decrease data management costs
Reduce your risk
Increased productivity

66. What do you look for?
Managed Solutions#
On-Demand Storage#
Online Review#
Dedicated Field Engineers#
Disaster Recovery#
World-Class Data Centers#
Personalized Customer Service#

67. Ethical Considerations
Professional Ethics Committee of the
Florida Bar Op. 10-2 (2011)
Pennsylvania Bar Association Ethics Opinion
No. 2010-060 (2010)
North Carolina Bar 2011 Formal Ethics
Opinion 6 (2011)
Iowa Committee on Practice Ethics and
Guidelines Ethics Opinion 11-01 (2011)
New York State Bar Association’s Committee
on Professional Ethics Op. 842 (2010)

68. Ethical Considerations
“a law firm may contract with a
vendor of software as a service
provided the lawyer uses
reasonable care to safeguard
confidential client information.”

69. Most lawyers are already dependent upon some
form of SaaS whether it’s voice mail or email or
Lexis research trails.
Lawyers must also engage in periodic
education about ever-changing
security risks presented by the
internet ... [and] if you don’t
understand the technology and/or are
not willing to keep updated as it
develops, you will need to retain
someone who will handle that for your
firm.
http://virtuallawpractice.org/2012/02/nc-cloud-computing-opinion-published/

70. “As the technology and
products improve, cloudcomputing platforms will
become a more palatable
alternative for large and
small firms alike.”

71. So now what?

72. 4-fold solution to handling eDiscovery
1. Lawyers, technology, firm management =
eDiscovery Team
2. Education and training
3. Cooperation and transparency
4. Metrics and new technology
Ralph Losey
Partner & e-Discovery Team Lead
Jackson Lewis

73. Questions to ask:
What few things must absolutely go right in
order for you to have protocol in place for
handling eDiscovery?

74. Questions to ask:
What is your budget?
What is the volume of documents?
What kind of data do you have?
What is your timeframe?

75. Questions to ask:
Can this really be done in-house?
Do you have an eDiscovery process?
Is there firm-wide buy-in process that is
needed?
Do you have the people & resources
needed to be successful?

76. Questions to ask:
Is a hosted solution or an in-house software
solution makes sense?
If you chose in-house, could you demo
the software before buying?
What kind of training, rollout and
implementation can you get?
How long before everyone is up
and running on the software?

78. LexisNexis E-Discovery Solutions
Gain greater control over e-discovery with flexible,
integrated software and hosting options.
lexisnexis.com/ediscovery-solutions
discoveryservices@lexisnexis.com

79. Daniel Gold
Twitter: @LexisGold