eDiscovery Case Law & Trends - My ALM Law Tech Conference
63
Daniel Gold @LexisGold eDiscovery & Li4ga4on Management Solu4ons
-
Upload
daniel-gold -
Category
Education
-
view
102 -
download
1
Transcript of eDiscovery Case Law & Trends - My ALM Law Tech Conference
Daniel Gold @LexisGold
eDiscovery & Li4ga4on Management Solu4ons
Growth in Data
2 Benefits of “The Cloud”
1 E-‐discovery Trends
3
Growth in Data
2 Benefits of “The Cloud”
1 E-‐discovery Trends
3
70% Law firms reported an increase in
workload for their li4ga4on support and e-‐discovery departments.
Cowen Group’s 2Q “critical trends” poll
2012 2009
70
42
Cowen Group Q2 Study
50% Firms believe they will increase technology
spending and bring in addi4onal EDD investments in the next three months.
Cowen Group’s 2Q “cri5cal trends” poll
2012 2010
50
31
Cowen Group Q2 Study
103
187
2010 2011
eDiscovery cases on the rise
Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
31
68
2010 2011
Sanc4on filings on the rise
Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011 Over 50% increase in 1 year!
21
38
2010 2011
Sanc4on awards on the rise
Source: Gibson Dunn 2011 Mid-‐Year eDiscovery Update, July 22, 2011
“ ”
Plain5ff’s aJorney simply did not understand the technical depths to which electronic discovery can some5mes go.
Chief Judge Arthur J. Gonzalez GFI Acquisi5on, 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)
Plain5ff has evidenced a paZern of inexcusable disregard for the authority of this Court … and the larger civil discovery process and warrants imposi5on of substan5al ameliora5ve and puni5ve sanc5ons.
Judge Mary S. Scriven Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 U.S. Dist. LEXIS 400 (M.D. Fla. Jan. 5, 2010)
“ ”
“
”
How many 5mes can a li5gant ignore his discovery obliga5ons before his misconduct catches up with him … [Plain5ff] failed to comply with … three court orders compelling produc5on of materials within the party’s control.
Judge Neil Gorsuch Lee v. Max Interna5onal, LLC, 2:09-‐CV-‐0175-‐DB, US
Court of Appeals, 10th Circuit (May 3, 2011)
The defendant’s “acts of spolia4on be treated as contempt of this court, and that as a sanc4on ... he be imprisoned
Judge Paul Grimm Victor Stanley, Inc. v. Crea5ve Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)
“ ” for a period not to exceed two years.
Victor Stanley, Inc. v. Crea5ve Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)
To prove spolia4on that warrants sanc4ons a party must show:
1) The party having control over the evidence must have had an obliga5on to preserve when it was destroyed;
2) The destruc5on or loss was accompanied by a culpable state of mind; and
3) The evidence destroyed or altered must have been relevant to the spolia5on claims of that party that sought the discovery of the spoliated evidence.
Rule 37(b)(2)
Thanks to Ralph Losey on the inspira5on on the graphic!
The defendant willfully violated … [had] blatant disregard for the Court's Discovery Order … [and showed a] lack of apprecia4on 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)
The defendant had to provide a copy of this Order to every Plain5ff 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 aJach a copy of this Order with its first pleading or filing on every new lawsuit, no maJer in what capacity they are involved.
Lawyers, Clients & Judges “have an interest in establishing a culture of coopera4on in the discovery process. Over-‐conten5ous discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge…
“…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 prac5cal effect … [and] it is an exercise in economy and logic.”
The essence of the propor5onality 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.
Source: The Metropolitan Corporate Counsel, April 2010
Richard A. (Doc) Schneider E-‐discovery Prac5ce Group King & Spalding
“ ”
Browning Marean III Senior Counsel at DLA Piper
Ul4mately, our challenge is to achieve a propor4onal result, so that we don't spend $500,000 on electronic discovery in a case that's worth $1 million.
“ ”
94% The total cost that processing and review
stages make up in any given maZer.
The In House Counsel Guide to Partnering for E-‐Discovery, 2012
Processing has significant poten4al for overall cost savings –
up to 71%! The In House Counsel Guide to Partnering for E-Discovery, 2012
67% Cost savings projected by bringing processing in-‐house rather than
with a vendor. The In House Counsel Guide to Partnering for E-‐Discovery, 2012
Electronic Discovery Manager Fortune 500 Technology Company
The Corporate Executive Board Company.
WhiJling down the ini5al dataset—that’s where the cost savings really come into play. That’s where E-‐discovery tools start paying off.
“ ”
“ The idea is to take the 100 gigabytes of data you just collected … process and review only what is poten5ally relevant. You can wind up saving hundreds of thousands of dollars in a case.
Kelly F. Farmer Manager of Data Governance and Discovery Services
”
Growth in Data
2 Benefits of “The Cloud”
1 E-‐discovery Trends
3
What is a gigabyte?
75,000 Number physical pages that equal 1GB of data
33 1 Terabyte
Cornell Law Library
34 137 Terabytes
Library of Congress
17 Million Books
The bad news?
It won’t get beZer.
Client data is doubling every 3 years
$1.5B Gartner Research Study 2011
by 2013
E-‐Discovery spend to hit
12% Source: Fulbright's 7th Annual Li5ga5on Trends Survey Report
over last year
E-‐Discovery spend increased
400% Increased demand for AFA’s since 2008
Volume Relevancy
Analysis
Processing
Document Review Presenta5on Produc5on
Informa5on Management Iden5fica5on
Preserva5on
Collec5on
Growth in Data
2 Benefits of “The Cloud”
1 E-‐discovery Trends
3
What is the cloud?
44 Electric Grid
Telephone Poles
3 flavors
SaaS PaaS
IaaS
Managing Mobile Risk for Lawyers, Law Technology News, October 18, 2012
“
”
But today's unmanaged mobility … and equally unmanaged use of popular Web services such as Dropbox and Evernote represent a seemingly unstoppable phenomenon. This creates a set of issues that must be addressed before an informa5on governance firestorm hits.
What about law firms?
Increase your firm's capacity
Why use it for your firm?
Decrease data management costs
Reduce your risk
Increased produc4vity
What do you look for? Managed Solu4ons
On-‐Demand Storage
Online Review
Dedicated Field Engineers
Disaster Recovery
World-‐Class Data Centers
Personalized Customer Service
Ethical Considera4ons Professional Ethics CommiZee of the Florida Bar Op. 10-‐2 (2011)
Pennsylvania Bar Associa4on Ethics Opinion No. 2010-‐060 (2010)
North Carolina Bar 2011 Formal Ethics Opinion 6 (2011)
Iowa CommiZee on Prac4ce Ethics and Guidelines Ethics Opinion 11-‐01 (2011)
New York State Bar Associa4on’s CommiZee on Professional Ethics Op. 842 (2010)
“…a law firm may contract with a vendor of sorware as a service provided the lawyer uses reasonable care to safeguard confiden4al client informa4on.”
“ ”
As the technology and products improve, cloud-‐compu5ng plaxorms will become a more palatable alterna5ve for large and small firms alike.
So now what?
4-‐fold solu4on to
Ralph Losey Partner & e-‐Discovery Team Lead Jackson Lewis
1. Lawyers, technology, firm management = eDiscovery Team
2. Educa4on and training 3. Coopera4on and transparency 4. Metrics and new technology
handling eDiscovery
LexisNexis
hJp://lexisnexis.com/ediscovery-‐solu5ons E-‐Discovery Solu4ons
Daniel Gold @LexisGold
Thank you!
