1. 1© 2012 Stinson Morrison Hecker LLPStinson.com e-Discovery: A Contact Sport presented by B RIAN O’B LENESS D ON R AMSAY S TINSON M ORRISON H ECKER LLP April 11, 2012

2. 2© 2012 Stinson Morrison Hecker LLPStinson.com INTRODUCTION Today’s Agenda Recent e-Discovery Developments Practical Suggestions E-Discovery for Investigations

3. Recent Developments E-Discovery cost awards Proportionality Document review Sanctions

4. 4© 2012 Stinson Morrison Hecker LLPStinson.com Cost Awards $500,000 in e-discovery costs awarded to defendants: In re Aspartame Antitrust Litigation, No. 2:06-CV-1732, 2011 (E.D. Penn. Oct. 5, 2011). $370,000 awarded in e-discovery costs awarded to defendant in Tibble v. Edison International, 2011 Lexis 94995 (C.D. Cal. July 8, 2011).

5. In Re: Aspartame Antitrust Litigation tape restoration, imaging hard drives, storage of data, deduplication, data extraction and processing OCR’ing paper documents, the creation of a litigation database, keyword searches privilege screening (i.e., keywords for privileged documents) data hosting technical support project management the production costs for the creation of load files

6. 6© 2012 Stinson Morrison Hecker LLPStinson.com Costs Limited Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp. --- F.3d ---, 2012 WL 887593 (3d Cir. Mar. 16, 2012). Award limited to cost of scanning hard copy, converting native documents to TIFF and copying VHS to DVD.

7. 7© 2012 Stinson Morrison Hecker LLPStinson.com Cost Shift / Incentive Shift Lubber, Inc. v. Optari LLC, 2012 WL 899631 (M.D. Tenn. March 5, 2012). It is this Magistrate Judge's experience and the view of a number of economists who have studied this issue that where the requesting party bears a part of the costs of producing what they request, the amount of material requested drops significantly.

8. 8© 2012 Stinson Morrison Hecker LLPStinson.com Proportionality

9. 9© 2012 Stinson Morrison Hecker LLPStinson.com Proportionality Pippins v. KPMG, LLP, 2012 WL 370321 (S.N.D.Y. Feb. 3, 2012).  Cost $ 1,500,000 (2,500 hard drives @ $600 each)  Benefit of preservation unknown

10. Document Review Context Document Review Malpractice J-M Manufacturing Co. Inc. v. Mc Dermott Will and Emory, L.A. Sup. Ct. C.D. Cal., No. BC 462832 MD JS-6. Judges about search terms United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). “[F]or lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.”

11. 11© 2012 Stinson Morrison Hecker LLPStinson.com Predictive Coding Moore v. Publicis Group and MSL Group, Case No. 11 Civ. 1279 (February 2012, S.D.N.Y.). Counsel no longer have to worry about being the "first" or "guinea pig" for judicial acceptance of computer-assisted review..... Computer-assisted review can now be considered judicially-approved for use in appropriate cases. Kleen Prods., LLC v. Packaging Corp. of Am., No. 10 C 5711 (March 2012, N.D. Ill). –Can the court order use of predictive coding?

12. 12© 2012 Stinson Morrison Hecker LLPStinson.com Document Review Processes Linear Review Predictive Coding Search Experts

13. 13© 2012 Stinson Morrison Hecker LLPStinson.com Proportionality and Predictive Coding Da Silva Moore v. Publicis Group and MSL Group, Case No. 11 Civ. 1279 ( February 2012, S.D.N.Y.). In large-data cases like this, involving over three million emails, no lawyer using any search method could honestly certify that its production is "complete" – but more importantly, Rule 26(g)(1) does not require that.

14. 14© 2012 Stinson Morrison Hecker LLPStinson.com Sanctions In re Delta/AirTran Baggage Fee Antitrust Litig., ---F. Supp. 2d---, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012). In-house counsel failed to confirm that all custodians data had been loaded into review tool Counsel not aware of box of older back-up tapes

15. 15© 2012 Stinson Morrison Hecker LLPStinson.com Litigation vs. Investigations Different Goals: Litigation e-Discovery = satisfy discovery rules Investigations = usually to determine wrongdoing, and by whom; often only internal

16. 16© 2012 Stinson Morrison Hecker LLPStinson.com ESI in Investigations Issue: Because of nature of investigations, some evidence may be hidden or tampered Implications: –(1) May need to collect quickly and without employee knowledge; –(2) Will need to document absence, destruction and tampering of ESI

17. 17© 2012 Stinson Morrison Hecker LLPStinson.com Forensics Forensic Collection Forensic Analytics Mobile Phones and PDAs

18. 18© 2012 Stinson Morrison Hecker LLPStinson.com Explosive Growth Text Messages –have tripled over the past 3 years to a staggering 6.1 trillion in 2010 (close to 200,000 text messages per second) International Telecommunication Union (2011) Instant Messages –By 2015, a predicted 84 billion instant messages per year will be sent with nearly half as enterprise related Radicati Group Inc. (2010-11) –By 2013, it’s predicted 95% of workers in leading global companies will use IM to interface for real-time communications Gartner Inc. (2007)

19. 19© 2012 Stinson Morrison Hecker LLPStinson.com Alternative Communications Issue: alternative commun- ication channels are often important in investigations: –Personal e-mail accounts –Texts –Chats/Instant messages –FB, Twitter, etc. Implication: May need to collect alternative channels

20. 20© 2012 Stinson Morrison Hecker LLPStinson.com The Need for Speed Issue: Typically investigations are faster-paced than litigation –For lots of reasons, nearly every type of investigation has pressure on it to be done as quickly as possible Implication: Linear review of documents by lawyers is not going to cut it

21. 21© 2012 Stinson Morrison Hecker LLPStinson.com Data Analytics Data Analysis can move an investigation forward very quickly Knowing communications patterns yielded from the larger set of data can be an invaluable tool

22. 22© 2012 Stinson Morrison Hecker LLPStinson.com Other Challenges Work Flow / Security: –Often several stakeholders in investigation: internal counsel, external counsel, internal auditor, corporate security officer, executives, audit committee, etc. –Each parties needs access to different preserved materials at different times Privilege / Work Product

23. 23© 2012 Stinson Morrison Hecker LLPStinson.com Other Challenges Post-Collection Preservation: –Appropriately preserve the collected data for purposes of the investigation and follow on activities –Without further burdening current records retention policy or procedure Defensibility: –Always possible same data will be involved in follow-on lawsuit or outside investigation –Thus, a forensically solid, reportable process is important

24. 24© 2012 Stinson Morrison Hecker LLPStinson.com Cross-Border Issues Privacy Issues –Compliance with cross-border transfer rules –Consents for transfer of personal data –Integrity and security of collection and handling of personal data –Proportional collection of personal data Multi-Language Documents

25. 25© 2012 Stinson Morrison Hecker LLPStinson.com Foreign Review In-Country Review Hubbing in country with restrictive data laws

26. 26© 2012 Stinson Morrison Hecker LLPStinson.com Recap Have a detailed Work Plan –Review key considerations about issues and individuals involved –Consider geography issues –Covert or overt investigation –Internal resources –Are forensics required –Collection, processing, security and review protocols