PULLING BACK THE CURTAIN ON E-DISCOVERY Gene Blanton

PULLING BACK THE CURTAIN ON E-DISCOVERY  Judicial expectations and potential consequences  E-Discovery rules in Texas  Ethical considerations  Type and scope of client documents  Client education  Vendor guidance

E-DISCOVERY TRENDS  2009: $243,  2010: $197,  2010: $860,  2011: $637,612.50

E-DISCOVERY TRENDS  $637, (346 S.W.3d 37) Court of Appeals Fourteenth District, Houston  Sanctions awarded under Tex. R. Civ. P (b)(8) – failure to obey a court order.

LOSING BEFORE YOU START  Consequences for ignorance: –Having claims stricken –Production of attorney-client communications –Sanctions or recovery of e-discovery costs –$100,000 spoliation claims

JUDICIAL EXPECTATIONS “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI….It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.” “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI….It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.” William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL (S.D.N.Y. Mar. 19, 2009). William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL (S.D.N.Y. Mar. 19, 2009).

BACK TO BASICS – WHAT IS E-DISCOVERY?  The access and use of information, data, and records created or maintained in electronic media.  It includes obtaining new information, in new forms, in new places, from new sources, and using it in a new manner.

E-DISCOVERY RULES  TRCP 192.3(b): Electronic or videotape recordings, data, and data compilations are discoverable.

E-DISCOVERY RULES -- TRCP  Requesting Party –Specifically request production of electronic/magnetic data –Specify the form in which to produce  Responding Party –Produce data if data is  Responsive and  Reasonably available

E-DISCOVERY RULES – TRCP (cont’d)  When data not reasonably available - –Responding party must state an objection complying with these rules. –If objection is overruled, responding party must comply with the request and –the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

E-DISCOVERY RULES - TRCP 196.6: EXPENSES OF PRODUCTION  Requesting Party –expense of inspecting, sampling, testing, photographing, and copying items produced  Responding Party –expense of producing items

DISCOVERY RULES -- TRCP 215.2(b)(8) –Consequences for not complying with discovery orders  Party or Attorney or both can be required to pay reasonable expenses and attorney fees caused by failure  Unless failure was “substantially justified” or an award would be unjust

ETHICAL CONSIDERATIONS  ABA Model Rule of Professional Conduct 1.1: requires lawyers provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.  E-Discovery knowledge necessary for competency?

MEETING JUDICIAL EXPECTATIONS BEFORE A LAWSUIT BEGINS  As Lawyers, we need to get educated on: –Types of documents our clients use, –Scope of those documents, –Document retention/destruction policies –Types of electronic storage and archiving that clients use

MEETING JUDICIAL EXPECTATIONS (Cont’d.)  What clients need to know to help avoid sanctions: –Scope and sources of their documents –Duty to preserve evidence –Discovery costs –Privilege

GETTING TO KNOW THE NEW SOURCES AND TYPES OF DATA Newer sources: Newer sources: s and electronic documents s and electronic documents Social media:Social media: Facebook Facebook Twitter Twitter LinkedIn LinkedIn YouTube YouTube Blogs Blogs Text messages/IMText messages/IM USB DrivesUSB Drives Classic sources: Facsimiles Facsimiles Voic s Voic s Phone records Phone records Contact management systems Contact management systems Time and billing records Time and billing records

COMPARING CLIENT DATA OF YESTERDAY AND TODAY Amount of Data PagesBoxes 1 Megabyte (MB) 75 Less than 1 1 Gigabyte 75, Terabyte 75,000,00025,000

SCOPE OF CLIENT DOCUMENTS (CONT’D.)  An estimate from Lexis Nexis:

SCOPE OF ELECTRONIC DATA  Increasing data in a paperless world: –2005 estimate of 1 gig/custodian –2011 estimate of 8-10 gigs/custodian  Microsoft estimates 17.5 gigs for each custodian (approximately 430 banker boxes of paper)

HOW DO WE MANAGE THIS MUCH DATA?  Use the metadata – the data about the data – that tells details about a particular document or data set which ascribes how, when, and by whom it was created, accessed, modified, or formatted.

HOW METADATA IS USED  Narrowing data ranges  Batch culling privileged information  Key word/hot doc searches  Preparation of witness files  Exclusion of duplicates  Etc…

CLIENT ISSUES TO ADDRESS BECAUSE OF SO MUCH DATA  Types of policies in place and methods to ensure enforcement.  Types of social media policies utilized by clients in their offices and on projects.  Organization, storage, and control of s and other electronic sources of information.

DUTY TO PRESERVE AND LITIGATION HOLDS  When does the duty to preserve arise?  What does a litigation hold do?  Is a preservation letter or written litigation hold required?  F.R.C.P. 37e (Safe Harbor Rule)

PRESERVATION LETTERS  Preservation letters should address the following: –Specific witnesses or custodians –Date ranges –Specific types of electronic document  Kitchen sink vs. narrowly tailored letters

CLAIMS OF SPOLIATION  Spoliation claims –What are they? –When do they arise?  Types of issues and evidence addressed? –Bad faith and conscious disregard of the duty to preserve relevant evidence –Victor Stanley, Inc. v. Creative Pipe, Inc.

ROLE OF THE CONSULTANT  Experienced e-discovery consultants assist with: –Understanding the client’s daily operations –Assist with statutory meet and confer requirements –Assist with the harvesting and reviewing of electronically stored information (ESI)

CONTROLLING E-DISCOVERY COSTS  Understand client electronic data before litigation arises  Follow-up on enforcement of document retention and destruction policy

EXAMPLES OF COST SHIFTING  FRCP 26(b)(2)(B) and TRCP – must prove that ESI is inaccessible through reasonable efforts before a court considers shifting  Courts have allowed a prevailing party to recover the costs of converting paper documents into electronic files where the parties agreed that responsive documents would be produced in an electronic format.

TYPES OF TOOLS FOR CONTROLLING COSTS  New technologies save time and money: – and document archival systems –Self-collection tools –Advanced search and cull applications –Cloud-based hosting and review –Machine learning/predictive coding

TIPS FOR REDUCING COSTS  Best practices for reducing harvesting and review costs: –Meet and confer with opposing counsel –Meet with e-discovery consultants regularly –Embrace new technologies designed for cost savings –Utilize lower cost resources for review when possible

Thank You for Attending. Gene Blanton