“There is a small window of opportunity to leverage the Meet & Confer to your advantage.” Knowledge is Power: Leveraging the “Meet and Confer” to your

“There is a small windowof opportunity to leverage the

Meet & Confer to your advantage.”

Knowledge is Power: Leveraging the “Meet and Confer” to your AdvantageJeff Fehrman, Vice President of Forensics and Consulting, Integreon

Bennett B. Borden, Partner, Chair E-Discovery and Information Governance Practice Group, Williams Mullen

22011 | Copyright © 2011 Integreon

Introductions: Williams Mullen

More than 18 years experience in Electronic Discovery and Information Law , Bennett serves as Chair of the firm’s e-Discovery and information Governance Section

He previously served as a chair of the Electronic Data Discovery Initiative and as a member of the steering committee for the Electronic Discovery and Information Law Practice Group

His professional affiliations include the American Bar Association, District of Columbia Bar, The Sedona Conference, Legal Working Group of the Cloud Standards Customer Council, and is also Vice Chair of the Electronic Discovery and Digital Evidence Committee of the Science and Technology Law Section of the ABA

Bennett B. Borden

Partner

Williams Mullen


Introductions: Integreon

More than 14 years in the electronic evidence and information technology space, specializing in providing consulting and investigative services to law firms, corporations and government clients

Subject matter expert on electronic evidence, who frequently speaks on topics such as e-discovery innovations and e-discovery obstacles facing corporations and law firms

Developed accredited courses approved by the Continuing Legal Education (CLE) boards in the States of Illinois, Georgia, New York, Pennsylvania and Virginia

Trained hundreds of attorneys in the technical aspects of computer forensics and electronic discovery

Jeff Fehrman

Vice President of Forensics and

Consulting

Integreon


Overview

Leveraging the Meeting

Strategic Advantage

Empowered Discovery

Early Case Assessment “ECA”

Agenda


Understand the obligations imposed by the FRCP

Benefit from an Early Case Assessment approach

Negotiate to your advantage by narrowing scope and defining responsive data stores

Enhance your ability to identify crucial information about ESI formats and locations

Grasp the finer points of the different forms of production and their impact on costs and post discovery research

Overview

Litigators are expected to come to the meet and confer meeting ready, willing, and able to discuss all forms and groups of ESI and negotiate the production of data based on time considerations, risks and costs.


Overview

Obligations of FRCP Rule 16(b)

• Amended to add to the scheduling order provisions for disclosure or discovery of ESI within 120 days of the lawsuit.

Rule 26(a)(1)(B) • Requires ESI to be on the list of items included in a

party’s initial disclosures.

Rule 26(f) • Adds the requirement to meet and confer about the

preservation, disclosure and discovery of ESI into the existing timetable, which requires the parties to confer “… as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due…”

Form 35• Used by the parties to report on various issues to

facilitate case management and scheduling, will be amended to require inclusion of the earlier meet and confer discussions relative to ESI discovery issues.


Evangelical Christian Academy, a school for missionary children in Madrid

Entertainment Consumers Association, an entity representing American video game consumers

European Cockpit Association, the representative body of 38 national flight crew associations in Europe

“ECA” Defined

An Early Case Assessment (ECA) is a case management approach designed to

assemble, within 60 days, enough of the facts, law, and other information relevant to

the dispute to evaluate the matter, to develop a litigation strategy and to

formulate a settlement plan if appropriate


Early Case Assessment - Strategy

Successful outcomes – attorneys responded that, on average, performing early case assessment results in a favorable outcome in 76% of cases

Strategic planning – 87% of respondents said case assessment is beneficial for determining the best way to proceed with a case

Reducing expenses – conducting early case assessment enables attorneys to reduce the litigation expenses in 50% of their cases on average

Managing budgets – More than half of attorneys surveyed (57%) find early case assessment assists in their ability to prepare a more accurate litigation budget

ECA Skills – 66% of attorneys said they could enhance their early case assessment skills


Early Case Assessment - Compliance

Rule 26 Shows the Way Identify, interview, track potential custodians

(a)(1)(A)(i) “the name … of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses…”

Work with IT to create Data Maps (a)(1)(A)(ii) “a copy of, or description by category and

location of, all documents, electronically stored information…”

Understand Retention Policies and backup systems

(b)(2)(B) “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Knowledge isn’t just “power”, it’s your responsibility


Early Case Assessment - Execution

Pin down the trigger

Begin preservation even if no notice of litigation has been served

Document the triggering event

• Date

• Time

• Reason

When a party has reason to believe information is “relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

Zubulake IV, 220 F.R.D 212, 216


Early Case Assessment - Wisdom

any action that will result in the destruction of hard drives is premature because there has been insufficient discovery to enable the parties and the Court “to knowledgeably craft a plan for preservation and production.”

Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)/(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

Recognize potential issues for ESI and the preservation/collection processAre you collecting all the data that you are supposed to be collecting?Are there any requirements for foreign language expertise?Are there any data quality issues?Will there be any production problems?Are there privacy / cross border issues to consider?


Early Case Assessment – Actionable Intelligence


Leveraging the Meeting

Seize tactical advantage Negotiate targeted scope and define

responsive data stores early• Agree to analyze a very limited group of

potential custodians• Be clear on triggering event date

Address irretrievability issues Don’t agree to search terms early or at all Grasp the finer points of different forms of

production and impact on costs and post-discovery research

Don’t hesitate to bring an e-discovery consultant

“[t]his topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example,

meets the criteria of Rule 702 of the Federal Rules of Evidence.”U.S. v. Michael John O'Keefe, 537 F.Supp.2d 14 (2008)


Strategic Advantage

“Knowledge is Power” Know ESI’s native state and choose your

arguments, early to avoid being reactive The court may look more favorably upon your

arguments if you have the an ability to discuss electronic data

Be more prepared than opposing counsel to show the court a more cooperative, can-do attitude

Save time and costs by knowing the impact on the event trigger on your data. Example: avoid expensive collection and production tasks by negotiating a collection date after an IT event such as migration to a new email or accounting system


Empowered Discovery – Quantitative Approach

Amass metrics – Learn from previous matters and be ready with preservation/collection averages and results

Plan strategically – Make sure your responses to opposing counsel are in line with your organizations position on information management

Process – Design, manage and audit the process. Don’t let it blind-side your team

Manage budgets – Appoint a project manager to estimate, model and track all expenses using on-going metrics collection

Reduce expenses – Defensibly reduce data: target, cull, document; target, cull, document etc.


The Electronic Discovery Reference Model (EDRM)

Preservation: Ensure ESI is protected against destruction

Processing: Convert ESI to form suitable for review and analysis

Production: Deliver ESI in appropriate format (e.g., redacted, in TIFF, etc.)

Identification: Determine the scope, breadth and depth of ESI

Presentation: Display ESI at depositions, hearings, trial, etc.

Information Mgmt: Define and enforce retention policy

ProcessingProcessing

AnalysisAnalysis

Information ManagementInformation

Management IdentificationIdentification ReviewReview ProductionProduction PresentationPresentation

PreservationPreservation

CollectionCollection

VOLUME RELEVANCE

Collection: Gather ESI from various sources

Analysis: Evaluate ESI for key topics, people, discussions, etc.

Review:Conduct review for privilege and relevance

www.edrm.net


Empowered Discovery – Required Planning

Litigation Readiness• Compile data maps, backup tape logs, org

charts• Establish “ownership” of data for each

department, database, file server, PC• Implement litigation hold method• Create kits and deposition training to

respond to mandatory disclosures, written requests, preservation notices and 30(b)(6)

• Draft preservation / collection procedures• Pre-hire outside resources

Audit litigation hold program periodically

• Run mock litigation holds and validate the results

• Analyze test collections for completeness and volume averages – GB per custodian, etc.


Empowered Discovery – Tactical Execution

Preservation Get out notices and get back

acknowledgments Ask clients to preserve, not yet collect Implement suspension of backup tape

rotation and other SOPs Make litigation-specific backups Track and remind. Avoid the tech-only

preservation plan Audit to make sure the preservation plan is

being fulfilled

“[A] party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business.”

Doe v. Norwalk Community College, 248 F.R.D. 372 (D. Conn. July 16, 2007)


Empowered Discovery – Strategic Planning

Processing directed by strategy Did you collect everything you expected?

• Custodians• Date Ranges• File Types• Variance from metrics

Triage to only process what you need as you need it

Identify problem files, non text searchable files, legacy applications and databases, early

Identify foreign language issues Confirm whether there are any PHI, PII, or

Privacy Issues

Know production specifications before processing; codify during meet & confer


Empowered Discovery – Results Oriented

“all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privileged review.”

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (2008)


Production Produce in strict accordance with formats

outlined during meet & confer sessions

Check opposing production(s) to determine if they match agreed upon specifications

Prepare arguments as quickly as possible if you determine you need a format that is different from what was agreed

Maintain produced items in full native format, with all collected metadata, even if you do not produce in that format

Empowered Discovery - Production

Be able to return to previously reviewed data to reuse in subsequent or parallel cases: “round-

tripping”


Conclusion

Litigants need and want aggressive project management, budget control and reports

from in-house and outside counsel


Discussion


For more information contact:

Jeff Fehrman([email protected])

Bennett Borden([email protected])

Copyright © 2011 by Integreon

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means —electronic, mechanical, photocopying, recording, or otherwise — without the permission of Integreon.

This document provides an outline of a presentation and is incomplete without the accompanying oral commentary and discussion.

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“There is a small window of opportunity to leverage the Meet & Confer to your advantage.” Knowledge is Power: Leveraging the “Meet and Confer” to your