Successfully Navigating National and Global Discovery Disputes

There is no delete key… David Neave Blake, Cassels & Graydon, LLP David Herr Maslon, Edelman Borman & Brand, LLP Bill Belt LeClair Ryan, LLP Colin West Bingham McCutcheon Scott OConnell Nixon Peabody, LLP

Introduction Challenges presented by electronic discovery laws Key cases Requirements for organizations and in-house counsel

Challenges Scope of obligation Discoverable documents Document preservation Costs

Electronic Discovery Overview Challenges for businesses and in-house counsel Current trends in case law

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (Southern District, NY) & Rimkus Consulting Group, Inc. v. Nickie G. Cammarata, et al. (Southern District, TX) Key Cases

Overview: Pension Committee Decision Zubulake Revisited: Six Years Later Duty to preserve: Scope and criteria for determining discovery obligations Establishing prejudice and burden of proof

Overview: Pension Committee Decision cont. Standards: Negligence, gross negligence or willfulness Legal hold notices, collection efforts & back-up tapes Appropriate sanction remedies

Overview: Rimkus Consulting Decision Reliance on Pension Committee principles Factual context: intentional document destruction Standard of culpability Appropriate sanctions

Comparing Pension Committee & Rimkus

Pension Committee & Rimkus Consulting Issue #1: What is the necessary degree of culpability?

Pension Committee & Rimkus Consulting Issue #2: Different culpability standards amongst judicial districts?

Pension Committee & Rimkus Consulting Issue #3: Mandatory presumption of relevance and prejudice?

Pension Committee & Rimkus Consulting Issue #4: What are appropriate sanctions?

Tough Questions: When should e-discovery process start? What are the minimum requirements? What documents are necessary to preserve? What to do with back-up tapes?

Implications for Clients & In-house Counsel Contextualized nature of document discovery requirements Basic duties: preservation & avoiding spoliation Potential liabilities & avoiding sanctions

Implications for Clients & In-house Counsel cont. Legal Hold Notices Requirements imposed by Pension Committee Internal processes for dealing with legal hold notices Issue as soon as possible following reasonable anticipation of litigation

Implications for Clients & In-house Counsel cont. Back-up Tapes Preservation and segregation of tapes that are sole source of relevant information Establishing process to identify and preserve required back-up tapes

Implications for Clients & In-house Counsel cont. Collection Efforts Establish preservation and collection process Identify key players and sources of information Instruct custodians on preservation requirements

Concluding Thoughts Impact and burden of technology In Praise of the Delete Key Developing appropriate processes Future Challenges

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