Successfully Navigating National and Global Discovery Disputes.
-
Upload
chase-dunlap -
Category
Documents
-
view
213 -
download
1
Transcript of Successfully Navigating National and Global Discovery Disputes.
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