1. eDiscovery 101: Navigating the Changes to the FRCP
Inn of Court / LogicForce
Implications to Your Litigation Practice

2. Agenda
LogicForce’s Presenting Expert
Implications of the changes to the FRCP
Proportionality
Impact of Technology, Big Data and Cyber Crime
Preservation Considerations
Practical Approach to Proportionality
What Are We Actually Doing?
How to build a budget

3. The Presenting Experts
John Sweeney - President and COO
John Sweeney is President of LogicForce Consulting and has led both publicly traded and privately held businesses to unprecedented financial success. As President of Thomson Reuters he built the Litigation Consulting Practice into the premiere advisory in the industry and is still considered a Top 100 legal consultant in the United States by Law Dragon and ALM. He has successfully led multidisciplinary teams in over 400 consulting engagements involving Legal Process Reengineering, eDiscovery, Litigation Management and Law Firm Growth Strategy. He is the author of The Amended FRCP Explained 2015 and has written numerous treatises for legal and technical publications over the last 25 years.

4. RULE 1: Scope and Purpose
Changes to the FRCP
RULE 1: Scope and Purpose
Courts and Parties Share Responsibility for Effective Litigation
Efficiency
Cooperation
RULE 16: Pretrial Conferences; Scheduling; Management 
More Effective Scheduling Conferences
Better Communication; Reduce delay and misunderstandings
Shorter Time Limits; Meet Early & Often
Discovery Requests Prior to Meet and Confer
Discovery Plan Proposals for Preservation and Clawbacks

5. Changes to the FRCP
RULE 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Specified Discovery Responses and Objections
New Rule Eliminates Boilerplate Objections
Objection Rules Raise Issues About the Necessity to Log Withheld Information
RULE 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Uniform Standard for Sanctions
When It Comes to Preservation, Good Faith and Reasonableness are Paramount

6. Changes to the FRCP: Proportionality
RULE 26: Duty to Disclose; General Provisions; Governing Discovery
Scope of Discovery and Proportionality
Importance of the issues at stake
Amount in controversy
Parties’ relative access to relevant information
Parties’ resources
Importance of discovery in resolving the issues
Whether the burden or expense outweighs its likely benefit
Protective Orders for Costs
Proportionality arguments are primarily around undue burden, expense, or delay from a party’s action or inaction  
Expeditiously preserving this data through a litigation hold order indicates you are knowledgeable and in control to the court
Rarely will a judge approve further discovery and only when opposing counsel can show that additional data from another source “may be of paramount importance to the case”

7. IT Trends
The Digital Universe will grow from 3.2 Zetabytes today to 40 Zetabytes by 2020!
- 85% of the growth will be derived from net new sources
* Mobile, Social Media, Web
68% of your corporate clients are investing in infrastructure over the next 24 months
Data management and Cyber Security have become a major focus for not only corporate IT departments but the General Counsel’s office as well

8. Cyber Security Trends
Professional Services Firms Increasingly Targeted (Law Firms, CPA’s)
ABA 25% of Firms Reported Breach in 2015; Up from 10% in 2012
Model Rule 1.6 of the ABA Code provides that attorneys shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or access to confidential client information
5 Billion Internet Connected Devices by the End of 2015
LogicForce Consulting Cyber Audit Requests Growing at an Exponential Rate
Ransomware (CryptoLocker, CryptoWall, etc)
Spear Phishing s
Rogue insiders
Non encrypted communication
“I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.“ - Robert S. Mueller, III, Director Federal Bureau of Investigation

9. Preservation & Collections
In 2014 Mobile Device Use Officially Surpassed Desktop Computer Use with Over 1.6 Billion Users
Handset encryption becoming an issue for forensics
Personal and corporate data segregation continues to be an issue in litigation
Much of the data accessed through handsets actually resides on cloud servers
Data preservation continues to be an issue because custodians very rarely want to be away from their device
Mobile backups are frequently overlooked during preservation efforts
Courts Are Begining to Require Social Media Evidence be Authenicated
United States v. Vayner, - F.3d_, 2014 WL (2d Cir. Oct. 3, 2014)
Cloud data is often overlook
Confusion on where cloud data resides, who owns it and how it is accessed
Cloud services often modify their platforms making preservation difficult
Forensically Sound Data Preservation
Data Sources
Cloud data
Mobile devices
Social Media
Remote Collections
3rd Party Records

10. Proportionality Considerations
Know the time, effort and cost associated with the processes from preservation through  production in order to impress upon opposing counsel & the court any undue burden, expense or potential delay their request may cause
Voice and document it early as judges are increasingly impervious to these arguments as cases progress
Examples:
Capturing duplicative data from backup tapes
Use of TAR/Analytics
Targeted collections v complete forensic images
Lack of IT/Forensics manpower internally
To substantiate any proportionality argument attorneys must:
Gain a good working understanding of client systems and data
Where is it stored (network servers, backup tapes, cloud, personal devices)
Types of data implicated ( , structured data, texts, social media)
Does the same data reside in different systems?
Who are the Primary Custodians?
How much data is involved?
What are the scheduling orders?

11. Proportionality Considerations
Opposing Counsel Considerations
When, How, To Whom was litigation hold issued?
What time frame is involved in the data preservation?
What types of data?
Where is the data stored?
What are data governance policies?
Remediation schedule vs actual practice?
Current vs. legacy systems are on/off line?
What are the credentials of the data collection team?
Systems Credentials
Forensics Credentials
Methodologies

12. Consulting / Process / Technology
Project Management
Cyber Risk Management & IT Management
Scope
Preserve
Data Collection
Process
Review
TAR
Analytics
Host
Production
Present
Consulting
Process
Technology

13. Budget considerations for eDiscovery
Actual eDiscovery Matter :
Primary Custodians - 25
Average data size per Custodian – 50GB
Average amount of shared data per custodian – 10GB
Total GB to be preserved and collected – 1500GB
Average amount of documents per GB – 6000
Average expansion of data is 1.5 ( 1.5x 1500GB = 2250GB)
Average processing cull rate – 80%  (450GB)
450 GB to be promoted into a hosted document review platform (Relativity/Xera)
Applying Technology Assisted Review and Analytics for document review  - 90GB of produced data
Cost of vendor supplied services varied by $515K between 3 service providers

14. Thank You
Thank You