Discovery Resources

In Her Honor’s latest eDiscovery-related opinion, Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, __ F. Supp. 2d __ (S.D.N.Y. 2010), Judge Scheindlin provides us all with a much needed reminder that sloppy (i.e., negligent or grossly negligent) document preservation and production will expose parties (and their lawyers) to the court’s arsenal of sanctions. Fernando M. Pinguelo and Frank Gonnello, Jr. from e-Lessons Learned note that “While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.” Read full article here.

This National Law Journal article provides a terrific overview of what was discussed at Fios‘ Regulatory e-discovery luncheon during LegalTech NY on Feb. 2. Speakers included: Len Gordon, director of the FTC’s NE Regional Office, David Keyko from Pillsbury Winthrop, Josh Weiss From Cadwalader, Wickersham & Taft and Fios’ Dennis Kiker. Fios’ Mary Mack moderated.

Salvatore Mancuso provides a good overview on selecting an e-discovery processing vendor in today’s market. Should it be by price? Quality? Both? For him, “a low-cost provider won’t cut it.” Click here to read his full blog article in Georgetown’s E-Discovery Law Blog.

Special webcast on Dec. 9 from Law.com and Fios - The exploding costs of e-discovery, cooperation mandates by the courts, and recommended changes (again) to the Federal Rules of Civil Procedure are generating a lot of discussion – by plaintiffs, defendants and the courts. Hear from representatives of The Sedona Conference®, members of Lawyers for Civil Justice and participants in the joint project of The American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System. 

Speakers:

• Richard Braman, The Sedona Conference®
• Craig Merritt, former member of The American College of Trial Lawyers Task Force on Discovery
• Bruce Parker, Lawyers

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By the end of 2012, organisations that fully document their search processes in e-discovery will save 25% on their collection processes, according to Gartner.

“Addressing the ongoing challenge of the IT perspective of litigation management demands both that the technologies be acquired and that procedures for using them be established,” said Whit Andrews, vice president and distinguished analyst. “Companies need to own the products that will be necessary for them to address litigation and understand that those products will not have the same positive impact unless they are supported by repeatable, effective, systemic processes for lawyers and IT to follow.”

In terms of storage requirements to support regulatory compliance, Gartnercontinue…

by Conrad J. Jacoby, Esq.

In July 2008, The Sedona Conference®, a non-profit legal think tank well-known for its Sedona Principles regarding preservation and production of electronically stored information in civil litigation, released The Sedona Conference® Cooperation Proclamation.  In it, the Conference suggests that overly aggressive (e.g., “scorched-earth”) discovery tactics reflect a misunderstanding of lawyers’ duty to provide effective advocacy for their clients. Instead, the Proclamation calls on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute. 

The Cooperation Proclamation challenges lawyers to rethink their litigation roles and strategies. continue…

by Conrad J. Jacoby, Esq.

Harvesting electronically stored information (“ESI”) using forensically sound collection techniques is a slow—sometimes painfully slow—process.  Clients and lawyers alike are strongly tempted to find alternate methods for collecting potentially relevant data, both to move discovery ahead more quickly and also to reduce the hourly charges incurred by collection teams.  After all, generally speaking, the vast majority of data collected in a forensic image isn’t relevant in any way to the underlying legal dispute and will be filtered out at the earliest stages of data analysis.  Why bother to collect all that information in the first place?

Critics of forensic collection have a point, of course,continue…

by Conrad Jacoby

As has been made explicitly clear in the Federal Rules of Civil Procedure, relevant information is potentially discoverable, regardless of where and how it has been stored.  As a consequence, traditional definitions of “document” no longer match real life, since relevant information may be as likely to be stored in a database entry or a chat log as in standalone word processing documents. 

This new awareness of information relevance is forcing legal teams and their clients to update their document preservation procedures, especially with respect to potentially relevant electronically stored information (“ESI”) that is stored on specialized computerized devices like mobile phones, PDAs, and Internetcontinue…

by Conrad Jacoby, Esq.

The cost of reviewing discovery document collections for relevance and privilege dwarfs just about every other segment of the litigation fact discovery process.  Taking depositions?  They consume almost no time compared to the effort required to review the average document collection.  Expensive expert witnesses?  Except in highly specialized situations, expert work, too, amounts to only a fraction of the cost of having law firm associates and paralegals review 100,000 (or 200,000 or 2 million) e-mail messages and loose documents for content. 

Review costs are directly related to the number of documents that must be reviewed, so one of the most fundamental strategies for containing discovery costscontinue…

by Conrad Jacoby

Preservation is the foundation for effective management of discovery materials—hardcopy and electronic alike.  After all, documents that are not preserved cannot be examined for potential relevance.  Courts routinely punish parties that have failed to preserve potentially relevant evidence—even though, as a statistical matter, it’s overwhelmingly likely that documents within an organization are supportive of the producing party’s position and not the “smoking guns” requesting counsel dreams of finding. 

Statistics, of course, only speak to trends across larger data populations.  Litigation is full of disputes in which a producing party was able to identify—and destroy—key documents while leaving other materials intact.  For example, the older case of Carluccicontinue…