This document summarizes the key issues and trends in eDiscovery in 2012 according to Kelly Twigger. New state rules were adopted in states like Colorado and Florida, and changes were proposed to the Federal Rules of Civil Procedure. Case law showed trends towards requiring cooperation between parties and proportional discovery. The 7th Circuit Electronic Discovery Pilot Program established principles for cooperation, proportionality, and continuing education obligations for attorneys regarding eDiscovery. Failure to understand evolving eDiscovery obligations could negatively impact attorneys' cases and careers.

1. The State of Play
in 2012
Issues, Trends and Decisions in
eDiscovery
Kelly H. Twigger, Esq.
5th Annual Electronic Discovery Conference
November 14, 2012

2. Kelly Twigger
Principal
ESI Attorneys
Former partner, Quarles & Brady LLP
Guest lecturer, Marquette University Law School
Milwaukee Business Journal: Forty Under 40 Class of
2010
Kentucky basketball fanatic
Official Host Kentucky Derby
First Computer: IBM AS2
First Blog Post: December 2007
First Tweet: August 2009

3. DISCUSSION TOPICS
• Local and global events shaped by ESI
• New State Rules and potential changes to
Federal Rules of Civil Procedure
• Changes to Wisconsin rules
• Case law trends and practical impact
• Questions

4. ESI Shaping Local
and Global Events

5. Director of
CIA falls
from grace
at the hand
of his
paramour
and, you
guessed it,
ESI.

6. Milwaukee Journal Sentinel, October 16, 2012

7. Corporate Counsel on Law.com June 1, 2012

8. Federal
Government
is aware of
and
encouraging
policy and
consideration
of issues in
ESI.

9. Presidential
memo outlines
need to meet
“legal
requirements
related to the
preservation of
information
relevant to
litigation.”

10. New State Rules and
Proposed Federal Rule
Changes

11. Colorado
considering Florida
pilot project adopted new
rules effective
July 5, 2012
Map courtesy of Tom Allman

12. PROPOSED CHANGES TO RULES|FRCVP
• Amendments considered following corporate
backlash of expense of preservation and lack
of knowledge of how to avoid sanctions
• Proposed changes now require “bad faith”
showing for sanctions under Rule 37 vs.
original idea of providing more definition to
Rule 26
• Timeline for effective date is likely 2015

13. New Rules
in Wisconsin

14. NEW RULES|WISCONSIN
• Creation of Wis. Stat. 804.01(7) – clawback
provision modeled on FRCP 26(b)(5);
references committee notes from FRCP for
meaning
• New evidence rule tracks FRE 502

15. Case Law Trends and
Practical Impact

16. TRENDS|
• Continued onslaught of decisions as jurisdictions
develop own body of law; more than 150+
decisions in 2012 across the country
• Full list of decisions to be posted on ESI Attorneys
blog
• Social media is key – party seeking info must
demonstrate relevance and seek appropriate
scope
• Use of predictive coding being ordered in large
matters; cooperation is key
• Very little published case law in Wisconsin

17. KEY DECISIONS| EEOC v. SIMPLY STORAGE
Judge granted access to social media from Facebook where plaintiffs
alleged emotional distress in sexual harassment action, but limited
it specifically to the facts of this case.
. . . The Court determines that the appropriate scope of relevance is any
profiles, postings, or messages (including status updates, wall
comments, causes joined, groups joined, activity streams, blog entries)
and SNS applications for claimants . . . that reveal, refer or relate to any
emotion, feeling or mental state, as well as communications that reveal,
refer or relate to events that could reasonably be expected to produce a
significant emotion, feeling or mental state.
EEOC v. Simply Storage Mgmt. LLC, 270 FRD 430 (S.D. Ind. 2010)

18. KEY DECISIONS| KLEEN PRODUCTS
Price fixing class action with discovery before Magistrate Judge Nan
Nolan in which parties filed numerous discovery disputes, failed to
cooperate and could not agree on technology to be used for case.
Lawyers have twin duties of loyalty: While they are retained to be
zealous advocates for their clients, they bear a professional obligation to
conduct discovery in a diligent and candid manner. Their combined duty
is to strive in the best interests of their clients to achieve the best results
at a reasonable cost, with integrity and candor as officers of the court.
Cooperation does not conflict with the advancement of their cli- ents’
interests—it enhances it. Only when lawyers confuse advocacy with
adversarial conduct are these twin duties in conflict.
Kleen Products vs. Packaging Corporation of America, (N.D. Ill. Sept.
28, 2012) (citing Sedona Conference Principles)

19. WI DECISIONS| U.S. v. NCR CORP
Judge Griesbach denied a motion to compel brought against the US
DOJ based on undue burden and where defendants did not explain
why ESI was needed.
Although ostensibly a reasonable request, the Defendants do not explain
what more and further discovery could possibly provide on liability. . .
The defendants vaguely argue that the governments will be using such
data in their case-in-chief, but nowhere do they suggest that the
governments will be using data that was kept secret or hidden from
discovery.
United States v. NCR Corp., 2012 WL 4955304 (Oct. 17, 2012, E.D. Wis.).

20. WHAT’S HAPPENING IN WISCONSIN |FEDERAL CT
The Seventh Circuit Electronic Discovery
Pilot Program
C.J. Clevert, J. Conley, J. Crabb, J. Randa, J. Stadtmueller,
M.J. Callahan, M.J. Crocker, M.J. Goodstein, and M.J.
Gorence all participating

21. WHAT’S HAPPENING IN WISCONSIN|FEDERAL CT
7th Circuit Pilot Project Principles
1.02 – Cooperation
1.03 – Discovery Proportionality
2.01 – Duty to Meet and Confer on Discovery
2.02 – E-Discovery Liaison(s)
Expectations being
2.03 – Preservation Requests and Orders
incorporated into orders
2.04 – Scope of Preservation
2.05 – Production Format
3.01 – Judicial Expectations of Counsel
3.02 – Duty of Continuing Education

22. IMPACT| OBLIGATIONS OF COUNSEL
• Lawyers can no longer assume that a request for all
documents will mean that the opposing atty understands
what is out there and should be produced; requests must be
specific
• Counsel need to have understanding of IT systems and actual
costs to collect and produce data to argue undue burden and
know true purpose behind request to overcome the
argument
• Need to educate clients on the challenges of ESI before
litigation arises, so that clients are prepared
• Evaluate and identify best tools for handling ESI commiserate
with value of matter

23. IMPACT| PRACTICAL CONSIDERATIONS
• Failure to understand, follow or take obligations
seriously can have severe ramifications for a case
and a career
• Work directly with client to identify the most cost
effective strategy for a matter, then work to agree
with the other side

24. Questions?
Kelly H. Twigger, Esq.
p: 414.375.2015
f: 414.375.2016
ktwigger@esiattorneys.com
http://esiattorneys.com
@kellytwigger
Kelly Twigger