Successfully Navigating National

and Global Discovery Disputes

There is no delete key…David Neave

Blake, Cassels & Graydon, LLP

David HerrMaslon, Edelman Borman & Brand, LLP

Bill BeltLeClair Ryan, LLP

Colin WestBingham McCutcheon

Scott O’ConnellNixon Peabody, LLP

Introduction

• Challenges presented by electronic discovery laws

• Key cases

• Requirements for organizations and in-house counsel

Challenges

• Scope of obligation

• Discoverable documents

• Document preservation

• Costs

Electronic Discovery

• Overview

• Challenges for businesses and in-house counsel

• Current trends in case law

Pension Committee of the University of Montreal Pension Plan v. Banc of

America Securities, LLC (Southern District, NY)

&Rimkus Consulting Group, Inc. v.

Nickie G. Cammarata, et al. (Southern District, TX)

Key Cases

Overview: Pension Committee Decision

• “Zubulake Revisited: Six Years Later”

• Duty to preserve: Scope and criteria for determining discovery obligations

• Establishing prejudice and burden of proof

Overview: Pension Committee Decision cont.

• Standards: Negligence, gross negligence or willfulness

• Legal hold notices, collection efforts & back-up tapes

• Appropriate sanction remedies

Overview: Rimkus Consulting Decision

• Reliance on Pension Committee principles

• Factual context: intentional document destruction

• Standard of culpability

• Appropriate sanctions

ComparingPension

Committee & Rimkus

Pension Committee & Rimkus Consulting

Issue #1:

• What is the necessary degree of culpability?

Pension Committee & Rimkus Consulting

Issue #2:

• Different culpability standards amongst judicial districts?

Pension Committee & Rimkus Consulting

Issue #3:

• Mandatory presumption of relevance and prejudice?

Pension Committee & Rimkus Consulting

Issue #4:

• What are appropriate sanctions?

Tough Questions:• When should e-discovery process

start?• What are the minimum

requirements?• What documents are necessary

to preserve?• What to do with back-up tapes?

Implications for Clients & In-house Counsel

• Contextualized nature of document discovery requirements

• Basic duties: preservation & avoiding spoliation

• Potential liabilities & avoiding sanctions

Implications for Clients & In-house Counsel cont.

Legal Hold Notices

• Requirements imposed by Pension Committee

• Internal processes for dealing with legal hold notices

• Issue as soon as possible following “reasonable anticipation of litigation”

Implications for Clients & In-house Counsel cont.

Back-up Tapes

• Preservation and segregation of tapes that are “sole source of relevant information”

• Establishing process to identify and preserve required back-up tapes

Implications for Clients & In-house Counsel cont.

Collection Efforts• Establish preservation and collection

process• Identify key players and sources of

information• Instruct custodians on preservation

requirements

Concluding Thoughts

• Impact and burden of technology

• “In Praise of the Delete Key”

• Developing appropriate processes

• Future Challenges

Contact Information

david.neave@blakes.com

david.herr@maslon.com

colin.west@bingham.com

william.belt@leclairryan.com

soconnell@nixonpeabody.com