Date post: | 01-Nov-2014 |
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Overview: Wisconsin’s New eDiscovery Rules
Prof. Jay Grenig, Marquette University
Matt Stippich, Esq., Digital Intelligence, Inc.
Kelly Twigger, Esq., ESI Attorneys, LLC
AgendaHistory of the new rules
Considerations in making and responding to ESI requests
Scheduling and discovery conference issues
Preservation and production issues
Special masters
802.10(3)(jm) – Scheduling OrderThe scheduling order may address. . . .(jm) the
need for discovery of electronically stored information.
Early attention to eDiscovery issues
Reference to 805.06 (referees/special master)
804.01(4m) – Discovery Conference
Discovery conference
At any time after commencement of an action, on the court’s own motion or the motion of a party, the court may order the parties to confer by appropriate means, including in person, regarding any of the following, except with the discovery of electronically stored information, where the parties must confer unless excused by the court.
804.01(4m) – Discovery Conference
To be discussed:TimingPreservationForm of productionPrivilege/clawbackCost/limitationsAppointment of Referee (805.06) or Expert
(907.06)
804.08(3) – Business RecordsOption to produce or allow access to business
records in response to an interrogatory
Burden of deriving the answer from the information must be substantially the same for either party
See FRCP 33(d)
804.09(1) and (2)Includes production of “electronically stored
information”
Requesting party may specify “form” of production of ESI
If no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”
Responding party may object to form of production
Form of ProductionNative
Paper
TIFF, PDF
Automated Litigation Support (Summation, Relativity, etc.)
Metadata issues
804.12(4m)“Safe Harbor” – be careful
Applies to information lost as a result of “routine operation” of an information
Loss must be in good faith
Intervention may be necessary after duty to preserve arises
805.07(2)Subpoena
Parallel to FRCP 45(a) and (d)
65% of costs
Translating GB to $$
ESI measured in quantity of info, not pages8 bits = 1 byte1,024 bytes = 1 kilobyte (KB) 1,024 KB = 1 megabyte (MB) 1,024 MB = 1 gigabyte (GB) (75,000 pages)1,024 GB = 1 terabyte (TB) (250 billion pages)1,024 TB = 1 petabyte (PB)
Paper vs. ESI
*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 350 documents per hour
Cost of Review = Number of Review Hours
XHourly Rate
Average Review Rates:
Using Concordance/Summation – 40-60 docs/hourUsing online review platform with advanced features – 100-150 docs/hourUsing concept clustering tools – 300 docs/hour
70% faster review rates with concept clustering, near de-duplication and email thread grouping
ESI Review Costs
Examples: Cost for 2GB Review (31,562 documents*)Using Summation/Concordance
*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 50 documents per hour ^Assumes review rate of 110 documents per hour“Assumes review rate of 300 documents per hour
631 hours ** X $200 = $126,200
Using web-based review platform 287 hours ^ X $200 = $57,400
Using concept analytics, near de-duplication and email thread grouping
105 hours” X $200 = $21,000
ESI Review Costs
Examples:Cost for 57.7GB Review (911,140 documents*)Using Summation/Concordance
*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 50 documents per hour ^Assumes review rate of 110 documents per hour“Assumes review rate of 300 documents per hour
22,778 hours ** X $200 = $4,555,703
Using web-based review platform 8283 hours ^ X $200 = $1,656,618
Using concept analytics, near de-duplication and email thread grouping
3037” X $200 = $607,426
ESI Review Costs
Questions