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Prevention & Pitfalls in E-Discovery Panelists: Ky Fullerton, Umpqua Bank Anton Litchfield, Encore Discovery Solutions Josh Sasaki, Miller Nash LLP Moderator:

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Presentation on theme: "Prevention & Pitfalls in E-Discovery Panelists: Ky Fullerton, Umpqua Bank Anton Litchfield, Encore Discovery Solutions Josh Sasaki, Miller Nash LLP Moderator:"— Presentation transcript:

1 Prevention & Pitfalls in E-Discovery Panelists: Ky Fullerton, Umpqua Bank Anton Litchfield, Encore Discovery Solutions Josh Sasaki, Miller Nash LLP Moderator: Jovita Wang, Miller Nash LLP Sponsored by Miller Nash LLP

2 Page 2 Failure to Plan is Planning to Fail

3 Page 3 Potential Sources of Electronically Stored Information Cloud Computing

4 Page 4 What About Cloud Computing?

5 Page 5 E-Discovery Related Sanctions First Half 2010 Source: Gibson Dunn 2010 Mid-Year Survey July 13, 2010 Sanctions Granted In 68% Of Cases Where It Was Requested

6 Page 6 E-Discovery Sanctions The Scarlet Letter – $250,000 in civil contempt sanctions and $500,000 "purging sanction” in Green v. Blitz U.S.A, Inc., No. 2:07 ‑ CV ‑ 372 (TJW), 2011 WL 806011 (ED Tex Mar. 1, 2011). The court also ordered defendant to provide a copy of the court’s order granting the sanctions and detailing the defendant’s discovery abuse to “every Plaintiff in every lawsuit it has had proceeding against it” for the past two years and also in every new lawsuit for the next five years. Mandatory Funding of E-Discovery seminars – Pinstripe, Inc. v. Manpower, Inc., No. 07 ‑ CV ‑ 620 ‑ GKF ‑ PJC, 2009 WL 2252131 (ND Okla July 29, 2009). Potential Jail Time – Victor Stanley, Inc. v. Creative Pipe, Inc., 269 FRD 497 (D Md 2010). Unfavorable Settlements – The threat of sanctions and increased costs caused by E-Discovery mistakes may force unfavorable settlements.

7 Page 7 Why Else Should We Care? Legal Reasons Added cost of motion practice and other corrective action Exposure to other litigation and investigations Potential criminal penalties associated with government investigations or audits Evidence found may support your case. Even if evidence is damaging, case theory can be crafted to deal with bad evidence—better than setting forth a theory only to have it undermined by ESI found at a later date. Business Reasons Negative publicity and impact on branding Negative impact on stock price Embarrassing/damaging information that should have been purged is retained and produced

8 Page 8 Duty to Preserve "The duty to preserve typically arises from the common law duty to avoid spoliation of relevant evidence for use at trial; the inherent power of courts; and court rules governing the imposition of sanctions." -The Sedona Conference Working Group on Elec. Document Retention & Prod. (WG1), The Sedona Conference Commentary on Legal Holds: The Trigger & The Process (2007), at 1, available at

9 Page 9 The Hiring Process

10 Page 10 Decisions…Decisions…Decisions… 1.Evaluate the case early on. 2.Consider the nature of the dispute and evidence at issue. 3.Identify the number of potential custodians and sources of ESI. 4.Consider the risk of using internal IT personnel. 5.Cheaper price quotes may not be better. 6.Vendors charge differently. 7.Do I need an expert witness?

11 Page 11 Controlling Costs

12 Page 12 Where E-Discovery Dollars are Spent

13 Page 13 Understanding E-Discovery Costs $1 per page – Approximate cost of taking 1 page through e- Discovery steps including “first-level” document review 50,000 pages – Average page volume of 1 gigabyte 250,000 pages – One employee’s average volume of ESI kept on a computer 52 additional copies – Number of copies of the same document stored in weekly computer backups during a 1 year period

14 Page 14 Preventative Tips Take control of the process EARLY Implement good management policies –Establish procedures for suspension of ordinary destruction practices –Establish a cross-discipline approach –Establish policies that quickly identify and isolate potentially relevant documents –Provide safe harbor from sanctions for nonproduction or spoliation under Rule 37(e)2 Good communication- don’t let counsel run amok Involve in-house counsel or expert in the Rule 26 meet-and-confer process

15 Page 15 Getting Personnel to Cooperate Communicate the importance of proper forensic best practices at the earliest opportunity Get them involved in the process –Seek to leverage their internal resources –Involve their IT leader –Have a designated gatekeeper Put the costs in perspective –Small upfront costs for safety and savings later

16 Page 16 What’s a Good Retention/Destruction Policy? Preserve with a strategy –Identify What type of information is generated Where the information is stored How the information is stored Who is knowledgeable about the information Preserve in a manner that complies with all regulations and laws Understand that longer does not equal better. Tailor the policy in accordance with organizational needs Document and follow the policy!!!

17 Page 17 Litigation Holds From: Ky Fullerton Sent: Friday, May 21, 2010 12:55 PM To: PERSONNEL Subject: PLEASE READ: Preservation of Records/(Plaintiff) Importance: High Umpqua Bank recently a notice of charge of discrimination from the U.S. Equal Employment Opportunity Commission regarding the subject employee. We will be sending a more formal memorandum to you on Monday with instructions regarding record preservation, but please review this e-mail in the interim. Until further notice, do not destroy or delete any documents, e-mails, notes, or records of any kind relating to (Plaintiff). You must also retain all records relating to any open positions at Umpqua Bank for which (Plaintiff) submitted an employment application and was rejected, including but not limited to all applications, test forms, or any similar documents completed by other applicants for such positions. Please do not discuss this matter with anyone inside or outside the bank, including (name). If you receive any questions relating to (Plaintiff’s) employment situation and/or claim, please refer the person making the inquiry to me or to Kathy Murray in Cultural Enhancement. Please call me at (503) 727-4295 if you have any questions regarding this matter. Ky Fullerton Vice President/Corporate Attorney Umpqua Bank

18 Page 18 Cost-Saving Technologies Microsoft Exchange 2010 includes E-Discovery capabilities. For instance, a legal hold can be placed on a user’s email – mailbox or Personal Archive (PST). Multi-mailbox searches are also available. Other technology a corporation can employ are: Symantec Enterprise Vault, EMC, and Iron Mountain.

19 Page 19 Employ Data Minimization Reduce Data Volume –Don’t store unnecessary data –Control scope of electronic discovery –Employ data minimization Improve Efficiency –Use of technology –Employ best practices Control Cost –Leverage economies of scale –Budget management

20 Page 20 Technology Practices for Reducing Document Review Costs Duplicate review propagation Family review propagation Email thread & near duplicate consolidation Document categorization Concept clustering & searching Concept Clustering and Searching Email Threading Near De- Duping High Efficiency Review Tools

21 Page 21 Client Management

22 Page 22 Questions?

23 Page 23 Thank you for attending Please fill out the evaluation forms. We hope you enjoy the rest of the conference!

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