PULLING BACK THE PULLING BACK THE CURTAIN ON E-DISCOVERYCURTAIN ON E-DISCOVERY

Gene BlantonGene Blanton

PULLING BACK THE CURTAIN PULLING BACK THE CURTAIN ON E-DISCOVERYON E-DISCOVERY

Judicial expectations and potential Judicial expectations and potential consequencesconsequences

E-Discovery rules in TexasE-Discovery rules in Texas Ethical considerationsEthical considerations Type and scope of client documentsType and scope of client documents Client educationClient education Vendor guidanceVendor guidance

E-DISCOVERY TRENDSE-DISCOVERY TRENDS

2009: $243,453.022009: $243,453.02 2010: $197,637.722010: $197,637.72 2010: $860,533.182010: $860,533.18 2011: $637,612.502011: $637,612.50

E-DISCOVERY TRENDSE-DISCOVERY TRENDS

$637,612.50 -- (346 S.W.3d $637,612.50 -- (346 S.W.3d 37) Court of Appeals 37) Court of Appeals Fourteenth District, HoustonFourteenth District, Houston

Sanctions awarded under Sanctions awarded under Tex. R. Civ. P. 215.2(b)(8) – Tex. R. Civ. P. 215.2(b)(8) – failure to obey a court order.failure to obey a court order.

LOSING BEFORE YOU STARTLOSING BEFORE YOU START

Consequences for ignorance:Consequences for ignorance:– Having claims strickenHaving claims stricken– Production of attorney-client Production of attorney-client

communicationscommunications– Sanctions or recovery of e-discovery Sanctions or recovery of e-discovery

costscosts– $100,000 spoliation claims$100,000 spoliation claims

JUDICIAL EXPECTATIONSJUDICIAL EXPECTATIONS

• ““Electronic discovery requires cooperation Electronic discovery requires cooperation between opposing counsel and between opposing counsel and transparency in all aspects of preservation transparency in all aspects of preservation and production of ESI….It is time that the and production of ESI….It is time that the Bar – even those lawyers who did not Bar – even those lawyers who did not come of age in the computer era – come of age in the computer era – understand this.”understand this.”

• William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009).2009 WL 724954 (S.D.N.Y. Mar. 19, 2009).

BACK TO BASICS – BACK TO BASICS – WHAT IS E-DISCOVERY?WHAT IS E-DISCOVERY?

The access and use of information, data, The access and use of information, data, and records created or maintained in and records created or maintained in electronic media.electronic media.

It includes obtaining new information, in It includes obtaining new information, in new forms, in new places, from new new forms, in new places, from new sources, and using it in a new manner. sources, and using it in a new manner.

E-DISCOVERY RULESE-DISCOVERY RULES

TRCP 192.3(b): Electronic or TRCP 192.3(b): Electronic or videotape recordings, data, and data videotape recordings, data, and data compilations are discoverable. compilations are discoverable.

E-DISCOVERY RULES -- TRCP 196.4E-DISCOVERY RULES -- TRCP 196.4

Requesting Party Requesting Party – Specifically request Specifically request

production of production of electronic/magnetic electronic/magnetic data data

– Specify the form in Specify the form in which to producewhich to produce

Responding Party Responding Party – Produce data if data Produce data if data

is is Responsive andResponsive and Reasonably available Reasonably available

E-DISCOVERY RULES – TRCP 196.4 E-DISCOVERY RULES – TRCP 196.4 (cont’d)(cont’d)

When data not reasonably available - When data not reasonably available - – Responding party must state an objection Responding party must state an objection

complying with these rules. complying with these rules. – If objection is overruled, responding party must If objection is overruled, responding party must

comply with the request and comply with the request and – the court the court mustmust also order that the requesting also order that the requesting

party pay the reasonable expenses of any party pay the reasonable expenses of any extraordinary steps required to retrieve and extraordinary steps required to retrieve and produce the information. produce the information.

E-DISCOVERY RULES - TRCP 196.6: E-DISCOVERY RULES - TRCP 196.6: EXPENSES OF PRODUCTIONEXPENSES OF PRODUCTION

Requesting Party Requesting Party – expense of expense of

inspecting, inspecting, sampling, testing, sampling, testing, photographing, and photographing, and copying items copying items producedproduced

Responding Party Responding Party – expense of expense of

producing itemsproducing items

DISCOVERY RULES -- TRCP 215.2(b)DISCOVERY RULES -- TRCP 215.2(b)(8)(8)

– Consequences for not complying with Consequences for not complying with discovery orders discovery orders Party or Attorney or both can be required to Party or Attorney or both can be required to

pay reasonable expenses and attorney fees pay reasonable expenses and attorney fees caused by failure caused by failure

Unless failure was “substantially justified” or Unless failure was “substantially justified” or an award would be unjust an award would be unjust

ETHICAL CONSIDERATIONSETHICAL CONSIDERATIONS

ABA Model Rule of Professional Conduct ABA Model Rule of Professional Conduct 1.1: requires lawyers provide competent 1.1: requires lawyers provide competent representation to a client. representation to a client.

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

E-Discovery knowledge necessary for E-Discovery knowledge necessary for competency? competency?

MEETING JUDICIAL EXPECTATIONS MEETING JUDICIAL EXPECTATIONS BEFORE A LAWSUIT BEGINSBEFORE A LAWSUIT BEGINS

As Lawyers, we need to get educated As Lawyers, we need to get educated on:on:– Types of documents our clients use, Types of documents our clients use, – Scope of those documents, Scope of those documents, – Document retention/destruction policiesDocument retention/destruction policies– Types of electronic storage and archiving Types of electronic storage and archiving

that clients usethat clients use

MEETING JUDICIAL MEETING JUDICIAL EXPECTATIONS (Cont’d.)EXPECTATIONS (Cont’d.)

What clients need to know to help What clients need to know to help avoid sanctions:avoid sanctions:– Scope and sources of their documentsScope and sources of their documents– Duty to preserve evidenceDuty to preserve evidence– Discovery costsDiscovery costs– PrivilegePrivilege

GETTING TO KNOW THE NEW GETTING TO KNOW THE NEW SOURCES AND TYPES OF DATASOURCES AND TYPES OF DATA

Newer sources:Newer sources:• Emails and electronic Emails and electronic

documentsdocuments• Social media:Social media:

• FacebookFacebook• TwitterTwitter• LinkedInLinkedIn• YouTubeYouTube• BlogsBlogs

• Text messages/IMText messages/IM• USB DrivesUSB Drives

Classic sources:Classic sources:• FacsimilesFacsimiles• Voicemails Voicemails • Phone recordsPhone records• Contact management Contact management systemssystems• Time and billing Time and billing recordsrecords

COMPARING CLIENT DATA OF COMPARING CLIENT DATA OF YESTERDAY AND TODAYYESTERDAY AND TODAY

Amount of Amount of DataData

PagesPages BoxesBoxes

1 Megabyte 1 Megabyte (MB)(MB)

7575 Less than 1Less than 1

1 Gigabyte1 Gigabyte 75,00075,000 2525

1 Terabyte1 Terabyte 75,000,00075,000,000 25,00025,000

SCOPE OF CLIENT DOCUMENTS SCOPE OF CLIENT DOCUMENTS (CONT’D.)(CONT’D.)

An estimate from Lexis Nexis:An estimate from Lexis Nexis:

SCOPE OF ELECTRONIC DATASCOPE OF ELECTRONIC DATA

Increasing data in a paperless world:Increasing data in a paperless world:– 2005 estimate of 1 gig/custodian2005 estimate of 1 gig/custodian– 2011 estimate of 8-10 gigs/custodian2011 estimate of 8-10 gigs/custodian

Microsoft estimates 17.5 gigs for each Microsoft estimates 17.5 gigs for each custodian (approximately 430 banker custodian (approximately 430 banker boxes of paper)boxes of paper)

HOW DO WE MANAGE THIS HOW DO WE MANAGE THIS MUCH DATA?MUCH DATA?

Use the metadata – the data about Use the metadata – the data about the data – that tells details about a the data – that tells details about a particular document or data set particular document or data set which ascribes how, when, and by which ascribes how, when, and by whom it was created, accessed, whom it was created, accessed, modified, or formatted.modified, or formatted.

HOW METADATA IS USEDHOW METADATA IS USED

Narrowing data rangesNarrowing data ranges Batch culling privileged informationBatch culling privileged information Key word/hot doc searchesKey word/hot doc searches Preparation of witness filesPreparation of witness files Exclusion of duplicatesExclusion of duplicates Etc…Etc…

CLIENT ISSUES TO ADDRESS CLIENT ISSUES TO ADDRESS BECAUSE OF SO MUCH DATABECAUSE OF SO MUCH DATA

Types of email policies in place and Types of email policies in place and methods to ensure enforcement.methods to ensure enforcement.

Types of social media policies utilized by Types of social media policies utilized by clients in their offices and on projects.clients in their offices and on projects.

Organization, storage, and control of Organization, storage, and control of emails and other electronic sources of emails and other electronic sources of information.information.

DUTY TO PRESERVE AND DUTY TO PRESERVE AND LITIGATION HOLDSLITIGATION HOLDS

When does the duty to preserve When does the duty to preserve arise?arise?

What does a litigation hold do? What does a litigation hold do? Is a preservation letter or written Is a preservation letter or written

litigation hold required?litigation hold required? F.R.C.P. 37e (Safe Harbor Rule)F.R.C.P. 37e (Safe Harbor Rule)

PRESERVATION LETTERSPRESERVATION LETTERS

Preservation letters should address Preservation letters should address the following:the following:– Specific witnesses or custodiansSpecific witnesses or custodians– Date rangesDate ranges– Specific types of electronic documentSpecific types of electronic document

Kitchen sink vs. narrowly tailored Kitchen sink vs. narrowly tailored lettersletters

CLAIMS OF SPOLIATIONCLAIMS OF SPOLIATION

Spoliation claimsSpoliation claims– What are they? What are they? – When do they arise?When do they arise?

Types of issues and evidence addressed?Types of issues and evidence addressed?– Bad faith and conscious disregard of the duty Bad faith and conscious disregard of the duty

to preserve relevant evidenceto preserve relevant evidence– Victor Stanley, Inc. v. Creative Pipe, Inc.Victor Stanley, Inc. v. Creative Pipe, Inc.

ROLE OF THE CONSULTANTROLE OF THE CONSULTANT

Experienced e-discovery consultants Experienced e-discovery consultants assist with:assist with:– Understanding the client’s daily Understanding the client’s daily

operationsoperations– Assist with statutory meet and confer Assist with statutory meet and confer

requirementsrequirements– Assist with the harvesting and reviewing Assist with the harvesting and reviewing

of electronically stored information (ESI)of electronically stored information (ESI)

CONTROLLING E-DISCOVERY CONTROLLING E-DISCOVERY COSTSCOSTS

Understand client electronic data Understand client electronic data before litigation arisesbefore litigation arises

Follow-up on enforcement of Follow-up on enforcement of document retention and destruction document retention and destruction policy policy

EXAMPLES OF COST SHIFTINGEXAMPLES OF COST SHIFTING

FRCP 26(b)(2)(B) and TRCP 196.4 – must FRCP 26(b)(2)(B) and TRCP 196.4 – must prove that ESI is inaccessible through prove that ESI is inaccessible through reasonable efforts before a court considers reasonable efforts before a court considers shifting shifting

Courts have allowed a prevailing party to Courts have allowed a prevailing party to recover the costs of converting paper recover the costs of converting paper documents into electronic files where the documents into electronic files where the parties agreed that responsive documents parties agreed that responsive documents would be produced in an electronic format. would be produced in an electronic format.

TYPES OF TOOLS FOR TYPES OF TOOLS FOR CONTROLLING COSTSCONTROLLING COSTS

New technologies save time and New technologies save time and money:money:– Email and document archival systemsEmail and document archival systems– Self-collection toolsSelf-collection tools– Advanced search and cull applicationsAdvanced search and cull applications– Cloud-based hosting and reviewCloud-based hosting and review– Machine learning/predictive codingMachine learning/predictive coding

TIPS FOR REDUCING COSTSTIPS FOR REDUCING COSTS

Best practices for reducing Best practices for reducing harvesting and review costs:harvesting and review costs:– Meet and confer with opposing counselMeet and confer with opposing counsel– Meet with e-discovery consultants Meet with e-discovery consultants

regularlyregularly– Embrace new technologies designed for Embrace new technologies designed for

cost savingscost savings– Utilize lower cost resources for review Utilize lower cost resources for review

when possiblewhen possible

Thank YouThank You for Attending. for Attending.

Gene BlantonGene Blanton