records management and ediscovery - judd llp · social media •preservation: typically...
TRANSCRIPT
Records Management and eDiscovery
eDiscovery 2.0
Jonathan Moore
Agenda
• Identify key causes of unnecessary costs
• Discuss specific actions you and outside counsel can take to reduce costs
• Highlight several current ediscovery “hot topics”
▫ Cloud computing
▫ Bring-your-own-device (BYOD) programs
▫ Social media
The Disconnect
The Goal
TIME
TOTA
L COST
COST
SAVINGS
OPPORTUNITY
Discovery
Motions & Trial
Cost Drivers
• Overbreadth
▫ Preserving too much
▫ Collecting too much
▫ Processing too much
▫ Reviewing too much
▫ Producing too much
• Do-overs
• Discovery Disputes
Cost-Savings Options
• Cost per unit
▫ Hourly billing rates
▫ Volume-based rates (e.g., $ per GB)
• Number of units
▫ Hours of work billed
▫ Data volume
Reducing Number of Cost Units
• Hours of work billed▫ Pre-litigation preparedness� Data Map / IT Inventory� Legal Hold Policy and Procedures
▫ Planning and process management▫ Budget enforcement▫ No do-overs
• Data volume▫ Options: Agreement
Court orderUnilateral action
Data Map & IT Inventory
• Catalog data storage locations and user access points within the organization:
• Networks• Email Servers• File Servers/Disk Arrays• Databases• Shared Drives• Voicemail• Backups• Legacy Systems
• Identify potential data loss/destruction points (e.g., autodelete functions)
• Identify key IT personnel
Written Legal Hold Policy and Procedures
• Identify individuals for Legal Hold Team to implement hold procedures
• Legal• IT• HR
• Communication Plan• Preservation and Collection Plan• Preferred Service Providers and
Contact Information• Business Disruption Minimization Plan
Causes of Overbreadth
• Broad allegations/requests from opposing party
• Uncertainty
▫ Reasonableness standard
▫ Sources: Opposing party/counselJudge
Reasonableness Standard• Preservation – primary basis for sanctions▫ Duty to preserve triggered when litigation is “reasonably anticipated.”▫ Party must take “reasonable steps” to preserve potentially relevant evidence.
• Collection – primary basis for do-overs▫ Responding party must make a “reasonable effort” to locate responsive documents.
• Review and Production – primary basis for privilege waivers, do-overs; largest cost component▫ Production of privileged materials only inadvertent if took “reasonable steps” to prevent disclosure.
Proportionality
• Sources: ▫ FRCP 1; FRCP 26(b)(2)(C)▫ MCR 2.302(C)
• Factors▫ Benefit vs. burden and expense▫ Availability of alternatives▫ Delay/timeliness
• The Key: Use it or lose it!▫ Opposing counsel▫ Judge
Judge Rader Model Order
• Presumptive limitations:• 5 custodians• 5 keyword search terms for each custodian
• Date range• Select metadata fields
• Expanded cost-shifting
Planning and Process Management
• Key principles▫ Cost-driven ▫ Budget-based▫ Transparent▫ Accountable
• What you can do
• What you should expect outside counsel to do
Process Management
Preservation PlanCollection Plan
BudgetProject Tracking
The Goal of Negotiating
TIME
TOTA
L COST
Benefits of Negotiating
• Limit scope of discovery
▫ Preservation
▫ Collection
▫ Review
• Reduce risk
▫ Sanctions
▫ Discovery disputes
• Tee up proportionality, cost-shifting
Negotiated ESI Agreement
• Scope of Preservation• Scope of Collection• Search Protocol• Production Format• Cost Allocation• Clawback• Scheduling
Preservation
• Key decision points and action steps
▫ Image or not?
▫ Number of custodians
▫ Shared resources
▫ PCs
▫ Removable media
▫ Cloud
▫ Social media
▫ Personal devices
Collection
• Key action steps
▫ Decide role of in-house personnel (IT, custodians)
▫ Narrow, targeted (but defensible) collection
▫ Preservation of metadata
▫ Chain of custody
• Searching
▫ Options
▫ Technological developments
▫ Quality Control
▫ Keyword searching vs. concept searching
Culling
• Deduplication
• Near-duplication
• Keywords
• Date range
• Exclusions
• Analytics
Keyword Searching vs. Concept Searching
• Is keyword searching “dead”?
• Testing and validation for keyword searches
• Future prospects for keyword searching
Concept Searching
Concept Hits
Predictive Coding
• Computer-assisted review
• Manual review of sample (“seed documents”)
• Coding/relevance information applied to remaining universe
• Can follow iterative process of “training” the computer
Predictive Coding
Reliability of Predictive Coding
• The 100% myth
• The manual review “Gold Standard” myth
• Research findings
• Statistical validation
• Recognition by courts
▫ Moore v. Publicis Groupe, No. 11 Civ. 1279(ALC)(AJP), 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012)
• The privilege-review hurdle
Smart Review
• Key advantages over traditional linear review
▫ Sorting
▫ Searching
▫ Precoding (“persistent highlighting”)
▫ Tiered reviews/reviewer-specific assignments
Features of the Cloud
• On-demand service
• Broad access
• Elasticity
• Cost tied to usage
• Pooling of resources across users
Key Issues in the Cloud
• Possession, Custody or Control
▫ Legal right or practical ability to obtain on demand
• Commingled data
▫ Subpoenas/government investigations
• Service level agreement (SLA) terms
Bring-Your-Own-Device (BYOD) Programs• Practical reality
• Privacy expectations
• Ownership and control
• Preservation issues
Social Media
• Preservation: typically (relatively) low risk for employer
• Opportunity for leveling e-discovery playing field with individual plaintiffs
• Challenges
▫ Ensuring preservation by opponent
▫ Detecting spoliation
▫ Stored Communication Act hurdles
Key Issues to Raise with Outside Counsel• Opportunities to limit scope of discovery and reduce costs through negotiation
• Culling technology to reduce volume of ESI that is reviewed
• Predictive coding rather than manual review
• Role of contract attorneys
Q&A / Discussion
