103 critical e-discovery areas you must understand - slides

www.WIPLEvent.comPresented by:

www.WIPLEvent.com

The Capital Hilton, Washington, DC

September 17-19, 2014

Presented by:


Critical E‐Discovery Areas You Must Understand


Tiffany Amlot is a member of Dentons' Litigation and Dispute Resolution, and Arbitration practices. She has represented clients in a variety of complex commercial disputes, primarily in the areas of contracts, business torts, media law, class action, financial services and insurance matters. Tiffany has provided legal counsel to newspapers, publishers and the broadcast media. Her representation has covered a range of corporate media and First Amendment law, including defamation and privacy claims, open records and open meetings disputes, and subpoenas and media access litigation. She has represented clients in multi‐million dollar real estate disputes. Tiffany also has substantial experience in managing large electronic discovery projects, as well as internal reviews of company practices, including the development of comprehensive document retention policies and procedures.

Pam Pearson is a Managing Counsel in the Litigation and Workout Division of the Wells Fargo Law Department. She leads a team of attorneys and legal professionals in the General Litigation Section, who manage litigation and regulatory matters in a variety of contexts across the Wells Fargo enterprise. In her practice, Pam is responsible for overseeing litigation and regulatory enforcement matters, as well as providing advice, counsel and training to lines of business and enterprise leaders. Recently,Pam helped lead an initiative at Wells Fargo to examine the company's strategies for managing e‐Discovery and recommending and implementing policies and procedures to increase the efficiency and effectiveness of the Litigation Practice Group’s representation of the company in these contexts.

Karen Schuler, Consulting Managing Director at BDO, has more than 20 years of experience in multidisciplinary investigations, technology, fraud investigations, computer forensics and e‐discovery across multiple industries. Prior to BDO, she held senior positions at Kroll’s Global Information Security practice, Intelligent Discovery Solutions, and as a Senior Computer Forensics Examiner for the SEC. She is a board member of an information management and governance company, current member of the Association of Certified Fraud Examiner’s Advisory Council, and served previously on the board of the MidAtlantic Chapter of HTCIA. She is a nationally known speaker and author on advanced topics in e‐discovery, computer forensics, investigations, and proactive threat management and information governance.

Panelists


Critical E‐Discovery Areas You Must Understand

• Proposed changes to the Federal Rules of Civil Procedure affecting e‐discovery

• Other court initiatives• Managing the process (in‐sourcing and outsourcing)


Amendments to the Federal Rules of Civil Procedure

• History of proposed amendments• Judicial Committee votes to approve on Sept. 16• Emphasis on proportionality and steps to prompt earlier and

more informed case management• Hitting the highlights with respect to the e‐discovery process…


Rule 1

• Rule 1 is amended so as to be "construed, and administered and employed by the court and the parties to secure the just speedy, and inexpensive determination of each and every proceeding.

• The proposed Committee Note observes that "most lawyers and parties cooperate to achieve those ends" and that "effective advocacy is consistent with ‐ and indeed depends upon ‐ cooperative and proportional use of procedure."

• Reflects emphasis on cooperation in e‐discovery (Sedona Conference Cooperation Proclamation, local rules, etc.)

Cooperation


Rules 16 and 26

• Rule 16(b) will permit a scheduling order issued by the court to "provide" for preservation of ESI

• Rule 26(f)(3)(C) will require parties to state their views on "disclosure, or discovery, or preservation" of ESI, including the form or forms in which it should be produced

• Officially moves preservation to the forefront and requires a discussion

• Both rules would also be modified to encourage parties to address whether the scheduling order should incorporate an agreement regarding claims of privilege "under Federal Rule of Evidence 502."

Preservation


Rule 26

• Currently, Rule 26(b)(2)(C)(iii) requires a court to act to limit discovery where "the burden or expense of the proposed discovery outweighs its likely benefit," considering "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues."

• 2013 Proposal: modified the scope of discovery in Rule 26(b)(2)(1) so as to "limit the scope of discovery to what is proportional to the needs of the case."

• 2014 Proposal: Rule 26(b)(2)(1) will permit a party to “obtain discovery regarding any non‐privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

Proportionality


Rule 26(c)

• Rule 26(c)(1) to be amended to acknowledge that a protective order issued for good cause to protect against undue burden or expense may also include provisions for the "allocation of expenses"

• The Committee Note explains that "[a]uthority to enter such orders is included in the present rule, and courts already exercise this authority"

• After public comment, the Committee Note was amended to that "[r]ecognizing the authority to shift the costs of discovery does not mean that cost‐shifting should become a common practice" and that "[c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding"

• Discovery Subcommittee noted in its May 2, 2014 report that it plans to explore "whether it may be desirable to develop more detailed provisions to guide the determination whether a requesting party should pay the costs of responding"

Cost Allocation


Rule 37

• (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may:

(A) presume that the lost information was unfavorable to the party;(B) instruct the jury that it may or must presume the information was

unfavorable to the party; or(C) dismiss the action or enter a default judgment.

• Committee Note acknowledges that "perfection in preserving all relevant [ESI] is often impossible" and the rule "is inapplicable when the loss of information occurs despite the party's reasonable efforts to preserve"

Failure to Preserve


Other Court Initiatives

• 7th Circuit Electronic Discovery Pilot Program‐ Principles, education, e‐mediation, etc.

• Others• E‐Discovery Protocols

‐ Use and enforceability


• Dedicated in‐house e‐discovery attorney• Developing protocols to manage risk and cost• In‐house collection, searching/processing, review

‐ Options‐ Limitations

In‐Sourcing

Managing the Process


Managing the Process

• Outside counsel‐ Separate discovery counsel or not?‐ How are outside counsel educating and managing?

‐ Firm‐wide training, e‐discovery counsel, local informal e‐discovery groups• Vendors

‐ Choosing preferred vendors or case‐by‐case

Outsourcing


Questions?

Tiffany Amlot, Senior Managing Associate, [email protected]

Pamela Pearson, Managing Counsel, Wells Fargo & [email protected]

Karen Schuler, Consulting Managing Director, [email protected]


www.WIPLEvent.com

The Capital Hilton, Washington, DC

September 17-19, 2014

Presented by:

103 critical e-discovery areas you must understand - slides

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