5 key things to know about ediscovery and how to implement them in your practice
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5 Things You Need to Know about eDiscovery
and How to Implement
them in Your Prac?ce
Kelly Twigger, Esq. Boulder County Bar Associa:on
February 21, 2014
Kelly Twigger Principal
ESI AEorneys
Guest lecturer, Denver, CU, MarqueEe,Vanderbilt
Law Schools Milwaukee Business Journal: 40 Under 40 Class of
2010 Kentucky basketball fana:c Official Host Kentucky Derby First Computer: IBM AS2
First Blog Post: December 2007 First Tweet: August 2009
WHAT IS ESI ATTORNEYS
• Law firm that works exclusively in eDiscovery and Informa:on law
• Acts as outsourced in-‐house counsel for firms, businesses, and municipali:es that do not have dedicated eDiscovery and informa:on law counsel
• Creators of the eDiscovery Assistant™ app for iPad
Number 1: Embrace eDiscovery
Director of CIA falls from grace at the hand of his paramour and, you guessed it, ESI.
Federal Government is aware of and encouraging policy and considera:on of issues in ESI.
Presiden:al memo outlines need to meet “legal requirements related to the preserva:on of informa:on relevant to li:ga:on.”
Florida adopted new rules effec:ve July 5, 2012
Colorado has pilot project in state business courts in Denver
Map courtesy of Tom Allman
PROPOSED CHANGES TO RULES|FRCP • Amendments considered following corporate backlash of expense of preserva:on and lack of knowledge of how to avoid sanc:ons
• Proposed changes now require “bad faith” showing for sanc:ons under Rule 37 vs. original idea of providing more defini:on to Rule 26
• Timeline for effec:ve date is likely 2015
EMBRACE EDISCOVERY|WHAT DOES IT MEAN? • Stop being resigned and start using it to your advantage
• Turn the funnel on its head – look for what you want, not through what you have
• The world stage is ALL about informa:on, and your clients need you to have their back
Number 2. eDiscovery NOW
prevents problems later AND costs less $$$
WHAT DOES NOW MEAN ?
• Immediate considera:on of preserva:on obliga:ons upon an:cipa:on or knowledge of li:ga:on
• Who are your witnesses/custodians? • Meaningful meet and confer • Make decisions based on the data you have, or will likely have
WHAT DOES NOW MEAN ?| TALKING EARLY • What types of ESI do each party have? • Where is the informa:on stored? • What is being preserved? Collected? Reviewed? • How much data will you have to deal with? • What are the best approaches to cost effec:vely handle and review the data?
• Who will bear the costs?
IMPACT| OBLIGATIONS OF COUNSEL • Lawyers can no longer assume that a request for all
documents will mean that the opposing aEy understands what is out there and should be produced; requests must be specific
• Counsel need to have understanding of IT systems and actual costs to collect and produce data to argue undue burden and know true purpose behind request to overcome the argument
• Need to educate clients on the challenges of ESI before li?ga?on arises, so that clients are prepared
• Evaluate and iden:fy best tools for handling ESI commiserate with value of maEer
CASE STUDY| ACTUAL COST SAVINGS
220 GB 12 GB
220 GB 3 GB
$375,000
$42,000
WHAT YOU NEED TO BE DOING| FORM OF PRODUCTION FRCP Rule 34(b)(1)(C):
The Request may specify the form or forms in which electronically stored informa:on is to be produced.
FRCP Rule 34(b)(2)(d):
If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms, and a party need not produce in more than one form.
WHAT YOU NEED TO BE DOING| FORM OF PRODUCTION
Number 3: Don’t Ignore Social Media
SOCIAL MEDIA| WHAT SITES ARE YOUR CLIENTS USING?
SOCIAL MEDIA| HOW ARE THEY USING IT?
KEY DECISIONS| GATTO V. UNITED AIR LINES
Court ordered adverse inference instruc?on aZer Plain?ff seeking disability following accident on tarmac “accidentally” deleted his Facebook account. Even if Plain:ff did not intend to permanently deprive the defendants of the informa:on associated with his Facebook account, there is no dispute that Plain:ff inten:onally deac:vated the account. . . Neither defense counsel's allegedly inappropriate access of the Facebook account, nor Plain:ff's belated efforts to reac:vate the account, negate the fact that Plain:ff failed to preserve relevant evidence. In light of all of the above, a spolia:on inference is appropriate.
Ga#o v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013)
SOCIAL MEDIA| DOWNLOADING FACEBOOK DATA
Number 4: Making Decisions about ESI and
eDiscovery Strategy has to be a TEAM
effort
Number 5: Not all eDiscovery Tools are Created
Equally (and they’re not all just for review)
FTK Imager
• Collec:on tool for making forensic images • Free download at www.accessdata.com • Install on hard drive and use for mobile collec:on
• PC based forensic search tool • Indexes data and creates concept map to show rela:onships between custodians and data • Allows culling of data with low cost and low effort • One :me licensing fee – requires use of dongle
• Process, Review, Produce ESI
• Fixed cost per document vs. per GB
• Use on iPhone and iPad
• No training required
• Cross-‐planorm
• PC based processing and review tool • Works with up to 15GB of data per maEer • $100 download one :me fee that goes to Room to Read charity • Download at www.prooffinder.com
By Nuix
• Mul:ple tools to allow for collec:on of social media, review and case management in cloud based services
• Pricing -‐-‐ $25/GB flat fee per month • Use with iPhone, iPad • Built by former paralegal at large Chicago firm to provide li:ga:on support
• Cross-‐planorm – web based • Grows with what you need for your case
www.nextpoint.com
www.ediscoveryassistant.com
• Includes rules, case digests, checklists, templates glossary and resources for eDiscovery • Designed to be first stop for eDiscovery • Includes checklists for planning strategy, interviewing custodians, iden:fying sources of ESI to meet your obliga:ons • Ini:al download -‐-‐ $29.99 with monthly/annual subscrip:on cost
Ques?ons?
Kelly H. Twigger, Esq.
p: 303.379.3068 ktwigger@esiaEorneys.com www.esiaEorneys.com
TwiEer: @kellytwigger LinkedIn: Kelly Twigger
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