“PRESERVATION, COLLECTION, AND PRODUCTION OF DOCUMENTS AND ESI IN CONSTRUCTION CASES” PRESENTERS: John Foust Jones Day San Francisco, CA John Foust Jones.

Slides:



Advertisements
Similar presentations
Williams v. Sprint/United Management Co.
Advertisements

Successfully Navigating National and Global Discovery Disputes.
Edna Greene Medford, Ph.D. Department of History.
Saving Your Documents Can Save You Anne D. Harman, Esq. Bethany B. Swaton, Esq. Dinsmore & Shohl LLP 2100 Market Street, Wheeling (304)
United States District Court for the Southern District of New York, 2004 District Justice Scheindlin Zubulake v. UBS Warburg LLC Zubulake V.
Peter Griffith and Megan McGroddy 4 th NACP All Investigators Meeting February 3, 2013 Expectations and Opportunities for NACP Investigators to Share and.
Litigation Holds: Don’t Live in Fear of Spoliation Jason CISO – University of Connecticut October 30, 2014 Information Security Office.
Responding to Subpoenas Springfield Metropolitan Bar Association Doug Healy March 25, 2013.
Webinar Sponsorship Partner. Jason Velasco Jason Velasco is an electronic discovery industry veteran with more than 15 years of experience in electronic.
INFORMATION WITHOUT BORDERS CONFERENCE February 7, 2013 e-DISCOVERY AND INFORMATION MANAGEMENT.
Ronald J. Shaffer, Esq. Beth L. Weisser, Esq. Lorraine K. Koc, Esq., Vice President and General Counsel, Deb Shops, Inc. © 2010 Fox Rothschild DELVACCA.
Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc.  Motion Hearing before a Magistrate Judge in Federal Court  District of Colorado  Decided in 2007.
Ethical Issues in the Electronic Age Ethical Issues in the Electronic Age Frost Brown Todd LLC Seminar May 24, 2007 Frost Brown.
A PROACTIVE APPROACH TO E-DISCOVERY March 4, 2009 Presented to the Corporate Counsel Section of the Tarrant County Bar Association Carl C. Butzer Jackson.
E-Discovery for System Administrators Russell M. Shumway.
Project Planning and Management in E-Discovery DAVID A. ELLIS – MAYER BROWN BROWNING E. MAREAN – DLA PIPER.
E-Discovery LIMITS ON E-DISCOVERY. No New Preservation Rule When does duty to preserve attach? Reasonably anticipated litigation. Audio sanctions.
W W W. D I N S L A W. C O M E-Discovery and Document Retention Patrick W. Michael, Esq. Dinsmore & Shohl LLP 101 South Fifth Street Louisville, KY
1 Best Practices in Legal Holds Effectively Managing the e-Discovery Process and Associated Costs.
Litigation Hold Overview Tom O’Connor Gulf Coast Legal Technology Center
17th Annual ARMA Metro Maryland Spring Seminar Confidentiality, Access, and Use of Electronic Records.
1 Structuring your Information Management to Ensure Litigation Readiness Julian Ackert, Principal Washington DC John Forsyth, HBOS Edinburgh Andrew Haslam,
Developing a Records & Information Retention & Disposition Program:
1 © Copyright 2008 EMC Corporation. All rights reserved. Litigation Response Planning: eDiscovery Best Practices Stephen O’Leary Sr. eDiscovery and Compliance.
Electronic Record Retention and eDiscovery Peter Pepiton eDiscovery Product Manager CA Information Governance.
Grant S. Cowan Information Management & eDiscovery Practice Group.
Avoiding the Iceberg Sean Regan October 2008.
Get Off of My I-Cloud: Role of Technology in Construction Practice Sanjay Kurian, Esq. Trent Walton, CTO U.S. Legal Support.
* 07/16/96 The production of ESI continues to present challenges in the discovery process even though specific rules have been drafted, commented on, redrafted.
©2011 Office of Massachusetts Attorney General Martha Coakley E-DISCOVERY Hélène Kazanjian Anne Sterman Trial Division.
230 F.R.D. 640 (D. Kan. 2005).  Shirley Williams is a former employee of Sprint/United Management Co.  Her employment was terminated during a Reduction-in-
Copyright© 2010 WeComply, Inc. All rights reserved. 9/19/2015 Record Management.
The Sedona Principles 1-7
E-Discovery in Health Care Litigation By Tracy Vigness Kolb.
FRCP 26(f) Sedona Principle 3 & Commentaries Ryann M. Buckman Electronic Discovery September 21, 2009 Details of FRCP 26(f) Details of Sedona Principle.
2009 CHANGES IN CALIFORNIA DISCOVERY RULES The California Electronic Discovery Act Batya Swenson E-discovery Task Force
When data is encrypted: 1. It must be reasonably encrypted to ensure confidentiality and integrity 2. It must be available even in the event the encryption.
Meet and Confer Rule 26(f) of the Federal Rules of Civil Procedure states that “parties must confer as soon as practicable - and in any event at least.
Lori A. Tetreault, Esq. May 17, We’re Gonna talk About:  Pre-trial Discovery  The new Federal Rules of Civil Procedure  “Electronically Stored.
Against: The Liberal Definition and use of Litigation Holds Team 9.
P RINCIPLES 1-7 FOR E LECTRONIC D OCUMENT P RODUCTION Maryanne Post.
The Challenge of Rule 26(f) Magistrate Judge Craig B. Shaffer July 15, 2011.
Rambus v. Infineon Technologies AG 22 F.R.D. 280 (E.D. Va. 2004)
RIM in the Age of E-Discovery RIM in the Age of E-Discovery FIRM Summer Program June 23, 2009 Christina Ayiotis, Esq., CRM Group Counsel– E-Discovery &
Legal Documents Some of the papers in your file cabinet... Note the word “some”. This overview is not comprehensive.
537 F. Supp. 2d 14 (D.D.C. 2008). PARTIES Plaintiff: United States – Q-P-Q charges against USDOS employee Michael O’Keefe & VISA applicant STS Jewelers.
ILTA – Insight 2007 E-Disclosure --Preparing for Compliance-- Moderator: Sally Gonzalez, Director, Navigant Consulting, Inc. Panelists: Oz Benamram, Director.
The Risks of Waiver and the Costs of Pre- Production Privilege Review of Electronic Data 232 F.R.D. 228 (D. Md. 2005) Magistrate Judge, Grimm.
E-Discovery – Practical Experience from an Agency Perspective Robert Wright Former Chief, Plans and Program Management Unit FBI.
© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
All Employee Basic Records Management Training. Training Overview 1.Training Objectives 2.Clark County RIM Program 3.Key Concepts 4.Employee Responsibilities.
The Sedona Principles November 16, Background- What is The Sedona Conference The Sedona Conference is an educational institute, established in 1997,
Legal Holds Department of State Division of Records Management Kevin Callaghan, Director.
E-Discovery And why it matters to a SSA. What is E-Discovery? E-Discovery is the process during litigation of discovering information relevant to litigation.
Electronic Discovery Guidelines Meet and Confer - General definition. a requirement of courts that before certain types of motions and/or petitions will.
U.S. District Court Southern District of New York 229 F.R.D. 422 (S.D.N.Y. 2004)
Allvision Computing Geldards CDR Conference E Disclosure – A Roadmap Andrew Haslam.
Record Retention to Manage Risk F. Jay Meyer Vice President & Senior Attorney TD Banknorth, N.A. Portland, Maine.
EDiscovery Also known as “ESI” Discovery of “Electronically Stored Information” Same discovery, new form of storage.
Title of Presentation Technology and the Attorney-Client Relationship: Risks and Opportunities Jay Glunt, Ogletree DeakinsJohn Unice, Covestro LLC Jennifer.
Shadbolt & Co LLP Solicitors E-DISCLOSURE IN THE ENGLISH COURTS – REVEALING ALL? ABA CONFERENCE OCTOBER 2005 Kate Matthews Commercial Litigation and Dispute.
Key Social Media Considerations It is no longer a question of whether a social media policy is needed, it is more a matter of what that policy proscribes.
Electronic Discovery Guidelines FRCP 26(f) mandates that parties “meaningfully meet and confer” to consider the nature of their respective claims and defenses.
Investigations: Strategies and Recommendations (Hints and Tips) Leah Lane, CFE Director, Global Investigations, Texas Instruments, Inc.
#16PACE Preparing For The Inevitable... How To Be Ready When The Lawsuit Comes And Steps To Proactively Limit Corporate Inconvenience And Liability Mitchell.
When the law firm is the client Handling legal holds, document collections and productions of your own firm’s documents.
Records Management Reality
Litigation Holds: Don’t Live in Fear of Spoliation
Litigation Holds: Don’t Live in Fear of Spoliation
Electronic Discovery Sabrina Jones 4/14/2011.
Presentation transcript:

“PRESERVATION, COLLECTION, AND PRODUCTION OF DOCUMENTS AND ESI IN CONSTRUCTION CASES” PRESENTERS: John Foust Jones Day San Francisco, CA John Foust Jones Day San Francisco, CA U.S. Magistrate Judge Robert B. Collings U.S. District Court, District of Massachusetts U.S. Magistrate Judge Robert B. Collings U.S. District Court, District of Massachusetts 1 American Bar Association Forum on the Construction Industry 2012 Fall Meeting

CHALLENGES WITH DOCUMENTS AND ESI IN CONSTRUCTION CASES Factors that Make Documents and ESI Challenging in Construction Cases Huge volumeHuge volume Broad scope of relevanceBroad scope of relevance Large amount of non-text-readable dataLarge amount of non-text-readable data 2

PRESERVATION OF DOCUMENTS, INCLUDING ESI Current State of the Law Duty attaches as soon as there is “anticipation of litigation”Duty attaches as soon as there is “anticipation of litigation” Scope extends to all documents and ESI relevant to the subject matter of the disputeScope extends to all documents and ESI relevant to the subject matter of the dispute Duty to preserve requires a litigation hold and suspension of routine destructionDuty to preserve requires a litigation hold and suspension of routine destruction Requires communication with key players about preservation obligationsRequires communication with key players about preservation obligations 3

PRESERVATION OF DOCUMENTS, INCLUDING ESI Application in the Construction Industry Determining when there is “anticipation of litigation”Determining when there is “anticipation of litigation” Will probably turn on specific factsWill probably turn on specific facts Work with client to issue preservation letter and ensure that necessary documents are preservedWork with client to issue preservation letter and ensure that necessary documents are preserved 4

COLLECTION AND PRODUCTION OF HARD COPY DOCUMENTS Current State of the Law All relevant, responsive, non-privileged documents must be producedAll relevant, responsive, non-privileged documents must be produced Either as maintained in the ordinary course of business, or organized to respond to requestsEither as maintained in the ordinary course of business, or organized to respond to requests Growing trend for courts to set protocols, especially in larger casesGrowing trend for courts to set protocols, especially in larger cases 5

COLLECTION AND PRODUCTION OF HARD COPY DOCUMENTS Application in the Construction Industry Identify the record set of project documentsIdentify the record set of project documents Desk-side interviews with key players and custodiansDesk-side interviews with key players and custodians Identify “working files” used by the people working on the projectIdentify “working files” used by the people working on the project Make originals available or produce scanned images (with OCR) or use a combinationMake originals available or produce scanned images (with OCR) or use a combination 6

COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION Current State of the Law Identify “key players”Identify “key players” Collect all relevant data associated with each key playerCollect all relevant data associated with each key player Produce data in the form in which ordinarily maintained or “in a reasonably usable form”Produce data in the form in which ordinarily maintained or “in a reasonably usable form” Take care to produce unaltered metadataTake care to produce unaltered metadata Growing trend for special masters and protocolsGrowing trend for special masters and protocols 7

COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION Application in the Construction Industry Start by locating all potential sources of ESIStart by locating all potential sources of ESI Identify the various types of filesIdentify the various types of files Create a comprehensive planCreate a comprehensive plan 8

Some Suggested Practices Consider segregating text-readable filesConsider segregating text-readable files Process non-text-readable data efficientlyProcess non-text-readable data efficiently Consider producing nativesConsider producing natives Provide access to hosted dataProvide access to hosted data Use digital parameters to help structure document reviewUse digital parameters to help structure document review 9 COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION

CONCLUDING THOUGHTS Preservation Watch out for signs that litigation is anticipatedWatch out for signs that litigation is anticipated Issue litigation hold and suspend all routine destruction of documents and ESIIssue litigation hold and suspend all routine destruction of documents and ESI Identify sources and custodians early by desk- side interviews, and consider collecting and storing ESI for safe measureIdentify sources and custodians early by desk- side interviews, and consider collecting and storing ESI for safe measure 10

CONCLUDING THOUGHTS Collection and Production Plan aheadPlan ahead Conduct a thorough investigation to identify sources and types of documents and ESIConduct a thorough investigation to identify sources and types of documents and ESI Devise a comprehensive plan for collecting and producing in a way that treats each type and source according to its own needsDevise a comprehensive plan for collecting and producing in a way that treats each type and source according to its own needs 11