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Resources- eDiscovery. eDiscovery Organizations The Sedona Conference- instrumental in developing the FRCP amendments. www.thesedonaconference.orgwww.thesedonaconference.org.

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Presentation on theme: "Resources- eDiscovery. eDiscovery Organizations The Sedona Conference- instrumental in developing the FRCP amendments. www.thesedonaconference.orgwww.thesedonaconference.org."— Presentation transcript:

1 Resources- eDiscovery

2 eDiscovery Organizations The Sedona Conference- instrumental in developing the FRCP amendments. The Electronic Discovery Reference Model- developed a conceptual view of the eDiscovery process including guidelines and standards for users and vendors. K&L Gates- Electronic Discovery Law- best practices, case law, Federal, State and Local Rule updates. FIOS- Discovery Resources- Resources for lawyers on eDiscovery and technology. The E-Discovery Institute- conducts studies of litigation processes that incorporate modern technologies.

3 eDiscovery Experts Consultants- –Craig Ball –Michael Arkfeld –Hon. Ronald Hedges Judges –Hon. Shira Scheindlin- U.S. District Court Judge, Southern District of NY. –Hon. John Facciola- U.S. Magistrate Judge for the District of Columbia. –Hon. Paul Grimm- Chief Magistrate Judge, United States District Court for District of Maryland.

4 eDiscovery Vendors Records Management/ Preservation Collection Vendors including Forensics EDD Processing Hosting Litigation Support eBilling Sedona Conference Publication: “Navigating the Vendor Proposal Process: Best Practices for the Selection of Electronic Discovery Vendors”

5 eDiscovery Software Exterro Equivio Guidance Software-EnCase CT-Summation Concordance

6 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Mancia v. Mayflower Textile Services Co., 2008 WL (D. Md. Oct. 15, 2008) Result: Magistrate Judge Paul Grimm writes that Fed. R. Civ. P. 26(g) requires counsel to cooperate in e-discovery and that failure to do so can be construed as a violation of the duty of “reasonable inquiry” prior to certifying demands or responses. Cited The Sedona Conference® Cooperation Proclamation. Significance: Influential opinion to jump-start the Cooperation Proclamation; will increase the use and documentation of 26(f) meet and confer proceedings.

7 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Qualcomm v. Broadcom, 2008 WL (S.D.Cal., March 05, 2008) Result: An adversarial relationship created between client and counsel; privilege abrogated so that counsel could defend themselves. Significance: Outside counsel and inside counsel are even more wary about each other discharging responsibilities correctly; increases the tension that started when Zubulake put both sets of counsel on notice that they were responsible for preservation and understanding the information system; demonstrates the backing by a district judge of difficult decisions and creative sanctions made by a magistrate judge; January opinion by Judge Major was a significant push for cooperation (may have sparked Cooperation Proclamation); CREDO process still not released to public, but it is in process; may be on this list again in 2009.

8 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Victor Stanley v. Creative Pipe, 2008 WL (D. Md. May 29, 2008) Result: Failure to agree on a “clawback agreement,” or agreement on choice of search key words, results in waiver of privilege when court holds that unilateral choice of keywords in privilege review did not rise to level of “reasonable precautions” to prevent inadvertent waiver. Significance: Underscores the need for Federal Rules of Evidence 502 on privilege waiver; also underscores the benefit of agreeing on search terms; establishes framework for protocols to validate unilateral search.

9 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Digicel v. Cable & Wireless LLC, [2008] EWHC 2522 (Ch) Result: High Court of England and Wales orders defendants to search again (at their own expense) due to failure to secure agreement on keywords; cites Zubulake and The Sedona Principles. Significance: European Zubulake opinion; will jump-start the “e- disclosure” momentum.

10 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv HHK (D.D.C. Nov. 12, 2007) Result: Motion to dismiss denied by Judge Kennedy on November 10, Significance: Keeps Magistrate Judge Facciola’s work alive regarding preservation of White House s; implications for all government agencies regarding preservation; details underfunded and unsupervised IT efforts to preserve. Slow- moving train wreck.

11 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Bell Atlantic Corp. v. Twombly, 127 S.Ct 1955 (2007) Result: Raises pleading requirements for antitrust cases alleging conspiratorial behavior. Significance: Decision reached in part (according to dicta) because of e-discovery costs and fishing expeditions; on this list due to the explosion of 2008 cases citing Twombly to raise pleading requirements for other issues. Sleeper case for e-discovery.

12 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in The warrant in the Bear Stearns trader computer seizure (unpublished) Result: Two traders arrested, due in part to found in suspect’s wife’s account. Significance: Aggressive and wide-ranging e-discovery for criminal cases, particularly related to the financial crisis.

13 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Keithley v. The Home Store.com, 2008 WL (N.D. Cal. August 12, 2008) Result: Lack of preservation protocols results in $148, costs award to plaintiff and adverse inference. Significance: “Lack of bad faith” not enough to demonstrate “good faith.”

14 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Keithley v. The Home Store.com, 2008 WL (N.D. Cal. August 12, 2008) Result: Lack of preservation protocols results in $148, costs award to plaintiff and adverse inference. Significance: “Lack of bad faith” not enough to demonstrate “good faith.”

15 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL (D. Del. June 4, 2008) Result: Work product privilege lost when witness interviews were offered up, opens the door to disclosure of privileged material. Significance: Need to prove good faith regarding legal hold processes gone bad; distinction between core and facts; need for court-consumable documentation.

16 eDiscovery Case Law 2008 Top 10 e-Discovery Cases in Treppel v. Biovail Corp., 2008 WL (S.D.N.Y. Apr. 2, 2008) Result: No adverse inference (failure to show relevance), but sampling of tapes and costs for forensic searches awarded. Significance: Details what is expected from GC when monitoring C-level preservation; watch for this SDNY case in the upcoming financial crisis litigation.

17 eDiscovery Certifications Kroll On-Track Guidance Software CR Catalyst Contract Reviewer Certification


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