Xact Data Discovery

eDiscovery Best Practices: The Crossroads of Legal Holds, Cooperation and

Proportionality

Kate Mortensen, Esq.kmortensen@xactdatadiscovery.com

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• ABA Model Rule 1.1 – Competence– A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• Comment– To maintain the requisite knowledge and skill, a lawyer should

keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…

Reminder: An Attorney’s Ethical Duty

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Litigation Readinessthe first steps

• Successful eDiscovery starts with Preparation– Sets the stage for Preservation

• Communicate with your Client– Determine the who, what, where, why and how– What ESI may be relevant– Where is ESI stored

• Identify sources• Are there retention/deletion schedules in place?

– Determine whether ESI is accessible• Back-up tapes?• Available on other sources?

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Litigation Readinessthe first steps

• Communicate with your Client– Who are the key players– Talk to IT– Talk with Information Governance Manager– ESI Maps– Educate your client

• Service Provider – educate your client

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Preservation - Your Obligation• Ethical Duty – “The obligation to preserve electronically stored

information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.” (The Sedona Principles – Principle 5)

• The Duty:– “The obligation to preserve evidence arises when the party has notice that the

evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake IV

• The Scope of The Duty:– Identify the Who – who are the custodians

• Who has discoverable information related to claims• Who prepared documents• Third-parties? Former employees?

– Identify the What – what form of ESI• All relevant documents that existed when the duty attached• All documents created since – that are relevant

– Where is ESI stored?

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Preservation

• The Litigation Hold:– Suspend routine document retention/destruction policies– preserve and protect against destruction– Talk to your client – counsel, employees, IT, Information Management

• ID key players and evidence sources• Custodian interviews• Advise on duty to preserve• Suspend document destruction policies that automatically delete ESI

that may be relevant– Issue a written litigation hold to key players, supervisors, former

employees, third-parties– Periodically Reissue

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Preservation• Collection

– Preserve and protect against alteration• Determine if Forensic Data Capture is necessary• Preserve Metadata• Ensure proper collection tools are utilized – self-collection?

– Defensibility• Attorneys cannot rely upon assurances from their clients, must

personally verify that all discoverable ESI has been identified, preserved, gathered, and produced – the Attorney signs the pleadings.

• Consequences:– Spoliation –

• Sanctions• Dismissal of Claims• Adverse Inference Instructions

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• Goals– Reduce cost and increase efficiencies– Communication with opposing counsel– Proportional Discovery

• Proposed Rule 26

• Responsibilities: Meet & Confer– Be prepared!– Must discuss the following:

• Preservation• Systems that contain discoverable ESI• Search and production• Phases of discovery• Protective orders• Opportunities to reduce costs and increase efficiencies

Cooperation

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• A Successful Meet & Confer– Promotes Early Case Assessment/Early Data Assessment

– Cooperation– Important to agree upon production procedures including format

(Native or TIFF)– Predictive Coding

• Agree on search terms

– Hosted Review?– Cost sharing?– TIP: Discuss ESI issues early and often!– Avoid motion practice – discovery about discovery– Consider Special Master or ESI Mediator

Cooperation

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Xact Data Discovery

Cooperation ProclamationSedona Conference, July 2008

A coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a “Just, speedy, and inexpensive determination of every action.”

•Reverse the current legal culture of adversarial discovery.•Create model case management toolkits to facilitate Proportionality and Cooperation.•Create network of trained electronic discovery mediators nationwide.

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“The difference between best practice and malpractice is where the red line of unreasonable negligence is drawn.”

http://e-discoveryteam.com/

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The Importance of Best Practices

• Potential ethical violations

• Expectation of competence

• Standard ESI Orders being adopted by courts in an attempt to standardize certain practices

• Courts stress – Communication, Proportionality, Cooperationhttp://e-discoveryteam.com/

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Final thoughts….

• “The English language is a form of communication! …. Words aren’t only bombs and bullets – no, they’re little

gifts, containing meanings! What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another

to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes “just crossfire,” and

there are usually casualties.•

• Zubulake V (quoting Philip Roth, Portnoy’s Complaint (1967)).

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Electronic Discovery Best Practices

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Xact Data Discovery

Xact Data Discovery

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XACT DATA DISCOVERYBecause you need to know

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kmortensen@xactdatadiscovery.com