Cost-shifting in E-discovery: Options and Opportunities

John D. Martin, Renee S. Dankner and Jarrett Coco, Corporate Counsel

July 16, 2014    | 0 Comments

It is no secret that e-discovery costs can account for a substantial portion of a company’s costs to defend a lawsuit. According to one study, e-discovery costs alone can account for as much as 90 percent of litigation costs. Another study indicates that e-discovery costs for a typical midsize lawsuit run about $3.5 million.

With costs of this magnitude, it's also not surprising that cost-shifting is an important subject for in-house counsel in charge of e-discovery. There are two routes defendants typically pursue to recoup e-discovery costs: via the federal rules while litigation is pending, and via 28 USC §1920 postjudgment. Regardless of the route, a defendant’s ability to recover costs may be limited. A defendant may be able to recover technical costs associated with producing electronically stored information (ESI), especially if that ESI is considered inaccessible; however, it is less likely that a defendant would be able to recover the costs associated with reviewing that ESI for privilege or relevance, which typically account for the bulk of e-discovery costs.

Read more: http://www.corpcounsel.com/id=1202663334672/Costshifting-in-Ediscovery-Options-and-Opportunities#ixzz37ecTqSIm

E-Discovery, Cybersecurity and Forensics

Guidance Software's annual four-day conference addresses issues facing the legal community and an abundance of training.

Monica Bay , Law Technology News

May 30, 2014    |0 Comments

Image: marketoon studios, courtesy Guidance Software

Blame it on Target. Or Edward Snowden. But in case you haven't noticed, legal technology conversations lately aren't exactly obsessed with predictive coding right now. Instead, firms—and everyday citizens—are more likely to be discussing data breaches, cybercrimes, and concerns about confidential client information.

But according to a new survey by LexisNexis' Legal & Professional division, while law firms may be talking—they aren't doing very much about it. The company reports that 89 percent of the 300 legal professionals in 40 states and in 15 practice areas who were recently polled said their firms send confidential information to clients via unencrypted email—relying on a disclaimer at the bottom of the correspondence to serve as protection.

Read more: http://www.lawtechnologynews.com/id=1202657289579/CEIC-2014-Tackles-E-Discovery%2C-Cybersecurity-and-Forensics#ixzz33DTsPNHd

When E-Discovery Goes Wrong

Mark Gerlach, Law Technology News

May 19, 2014    |0 Comments

Vladislav Kochelaevs - Fotolia

In e-discovery, human and machine glitches, malfunctions and errors are inevitable. However, not efficiently dealing with problems as they arise could lead to a tarnished reputation, loss of business for vendors, and in some instances even ethical violations and sanctions, according to a panel on e-discovery ethics held last Friday at Proskauer Rose’s 11 Times Square office in New York.

The panel, “Ethical Forks in the Yellow Brick Road: Lions, Tigers, Bears and the Search for E-Discovery Wizards,” was part of the ABA’s “8th Annual National Institute on E-Discovery” and moderated by John Barkett, partner at Shook, Hardy & Bacon. “We’ve all had [e-discovery] cases that have gone south on us,” said panelist Cecil A. Lynn, director of e-discovery and technology at eBay Inc.

During the presentation panelists put various ABA rules under a microscope to see how they apply to e-discovery, including rules 1.1 (competence), 1.6 (confidentiality) and 5.1 and 5.3 (supervising lawyers and non-lawyers, respectively).

Read more: http://www.lawtechnologynews.com/id=1202655955850/When-E-Discovery-Goes-Wrong#ixzz32GrT8OxY

Five Habits of Highly Effective E-Discovery

Mike Kinnaman, FTI Consulting

Friday, January 10, 2014

Mike Kinnaman

While most corporations are still focused on improving the efficacy of their e-discovery efforts, others are already well on their way towards mastery. To better understand how some of the world’s leading organizations are sharpening their e-discovery skills, FTI Technology commissioned a study of e-discovery professionals in 2013. Participants included Fortune 1000 companies across a variety of industries. Most manage more than 100 litigation events per year, and 20% manage more than 1,000. Five habits emerged from the study as leading indicators of organizational maturity and efficiency.

1. Proactively Manage Information and Its Many Locations: One hundred percent of the respondents have seen their data volumes increase dramatically over the past three years. As a result of this data explosion, 39 percent of respondents recently implemented a new data retention policy. The majority of these participants were focused on the implications of a “bring your own device” (BYOD) workplace. 
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   Best practices include the development of defensible records destruction policies, maintaining an understanding of existing systems and data locations, and training employees on company policies for classifying, filing and storing information.

Read more: http://www.lawtechnologynews.com/native-ad?mvi=207d394d946c4a769ca9a6602a3223cb#!/#ixzz31WD2YePn

U.S. Judge Rules Search Warrants Extend to Email Stored Overseas

Microsoft contends the U.S. government shouldn't have the power to search the content of email stored overseas, but a federal judge disagrees.

U.S. Magistrate Judge James Francis in New York on Friday ruled that Internet service providers must turn over customer emails and other digital content sought by government search warrants even when the information is stored outside the country.

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Don’t Argue Gmail is Not Reasonably Accessible

Can a producing party argue for cost-shifting to the defendant based on proportionality for the production of work-related emails on a plaintiff’s gmail account?Owens v. Clear Wireless LLC, 2014 U.S. Dist. LEXIS 26698, 4-6 (D. Minn. Mar. 3, 2014).

Short answer is no, because the emails are not inaccessible to the producing party.

#200572855-001 / gettyimages.com

The general rule in over the cost of producing discovery falls on the producing party.Owens, at *4, citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

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Changing Discovery Culture One Step at a Time

The proposed FRCP amendments will accomplish nothing without a change in discovery culture.

By Mitchell Dembin and Philip Favro Contact All Articles 

Law Technology News

December 5, 2013

Most lawyers and judges know that the Judicial Conference Advisory Committee on the Civil Rules has proposed another round of amendments to the Federal Rules of Civil Procedure. Designed to address the continuing challenges posed by the digital age to federal discovery practice, the proposals would touch many aspects of the discovery process. Much of the commentary suggests that the draft changes would cure the present ills afflicting discovery—a Pollyannaish view. No doubt, the proposed amendments—particularly the renewed emphasis on proportionality standards—represent enlightened improvements to the current rules regime. However, without a corresponding change in discovery culture by courts, counsel and clients alike, the proposed rules modifications will likely have little to no effect on the manner in which discovery is conducted today.

Read more: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202630168239&Changing_Discovery_Culture_One_Step_at_a_Time#ixzz2md4R1yCn

Read more: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202630168239&Changing_Discovery_Culture_One_Step_at_a_Time#ixzz2md4E9LjP

Fun With SnapChat Spoliation and Preservation 10/8/2013byKroll Ontrack Inc.

Pizza & Metadata:

Order It The Way You Want It

Posted on November 26, 2013

The form of production is a lot like ordering a pizza: say what you want. Thin crust, sauce, topping. All are things you can order.

Requesting electronically stored information is exactly the same. You can request native files and types of metadata just like you are ordering a pizza. You could also request static images with specific fields of metadata. It does take a little longer to process than 30 minutes.

http://bowtielaw.wordpress.com/2013/11/26/pizza-metadata-order-it-the-way-you-want-it/

Discovery Violations Result in Sanctions, Default Judgment

By Saranac Hale Spencer Contact All Articles 

The Legal Intelligencer

November 25, 2013

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Judge Mitchell S. Goldberg

Following what the court termed “egregious” discovery violations over the course of two years, a federal judge has granted default judgment to a financial services company.

Read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?http://www.law.com/jsp/pa/PubArticlePA.jsp?

Can a Trial Court, Consistent with the First Amendment, Order an Attorney to Take Down Part of Her Website During Trial?

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On October 30 of this year, in the case of Steiner et al. v. The Superior Court of Santa Barbara County, an interesting First Amendment question arose. One of the attorney’s websites advertised that she had had success in two prior cases that were similar to the case that she was about to try. (They were personal injury actions, all with similar facts.) The Court, in response, ordered that the attorney had to take down the relevant portion of her website—that is, the portion that discussed that attorney’s favorable outcomes in similar cases.

- See more at: 

http://verdict.justia.com/2013/11/25/can-trial-court-consistent-first-amendment-order-attorney-take-part-website-trial#sthash.nW3AGvMV.dpuf - See more at: http://verdict.justia.com/2013/11/25/can-trial-court-consistent-first-amendment-order-attorney-take-part-website-trial#sthash.nW3AGvMV.dpuf

Stay Ahead of the Curve With the Ediscovery.com Pulse Benchmarks

Bow Tie Law Blog - Mining for eDiscovery Sanctions

 Some cases begin with such a “wow” introduction they have to be seen to be believed:

To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation.

 http://bowtielaw.wordpress.com/2013/09/26/mining-for-ediscovery-sanctions/