While Da Silva Moore and Pippins were heard in the same jurisdiction and involved similar arguments, each resulted in strikingly different outcomes.  This session highlighted that transparency, specification and cooperation were the deciding factors for a favorable outcome.

Da Silva Moore:

• Explained and documented a detailed procedure.

• Included an expert to explain the steps and answer any questions.

• Allowed plaintiff to review the seed sets and sample the non-responsive sets to make sure they agreed.

• Were agreeable with plaintiff’s changes.

Pippins:

• The defendant presented a partial plan regarding preserving hard drives that could not explain how the set of hard drives would be sampled

• Approached the discussion as a take it or leave it proposition

Session 2:  E-discovery malpractice
Speakers:  Rafael Bernardino, Noah Lang, Alvin Lindsay, Nancy Stuparich
Moderators: Robert Hilson and Charles Intriago

Rafael Bernadino explained the events that lead to the malpractice action against McDermott, Will and Emery.

• McDermott had hired Navigant Consulting and Stratify and instructed them to run a privilege filter.

• The privilege filter was never run.

• The review team did not tag the documents privileged.

• 3,000+ privilege documents were produced to the government who also turned over the documents to the plaintiffs.

• Both the government and plaintiffs’ counsel alerted McDermott of the issue and returned the documents even though there was not a claw-back agreement in place.

• McDermott produced the data a second time.

• The production had the same number of documents and same number of pages as the documents previously returned.

• Plaintiffs’ alerted McDermott of the issue once again, but this time refused to give the documents back.

• McDermott was removed from the case and Shepard Mullin took over.

• Shepard Mullin proceeded to produce privilege documents.

• Shepard Mullin was able to get documents back because they sought a claw-back agreement.

• Shepard Mullin was removed from the case based on a conflict and Bert and Marella became counsel.

• Bert and Marella produced privileged documents to the state of Tennessee.

• Bert and Marella were also able to have the documents retrieved based on the claw-back agreement that was in place.

Mitigating the risks/lessons learned:

• Have a claw-back agreement in place.

• Create document review procedures:

o    Teach the review team about all aspects of the case
o    Provide material
o    Real time assistance and engagement by outside counsel
o    Ensure and enforce quality control monitoring

•  Always review the production disk prior to delivering to opposing counsel.

Malpractice Insurance

• Oregon is the only state in the union where insurance is mandatory.

• Review current policy to see if you have proper coverage for the type of work you do.

• Update your policy as your practice changes.

Control Reputation

• Get your firm name out in the public domain.

• Write positive articles out in the public domain regarding how you mitigate malpractice risks. Therefore, if you get sued for malpractice, there are already articles that are positive about your firm regarding malpractice.

• Have diverse content.

• Sign your firm up for social media.

• Shift around content.

Session 3:  Curing cross-border language, norms, custodian and venue headaches
Speakers: Stephen Fernelius, Stephanie Giammarco, Adam Landa, Jon Talotta
Moderators: Ervin Gonzalez and Alvin Lindsay

The panel discussed vendors, personnel and new protocols released by the DOJ.

Vendors

• Not many vendors in foreign countries due to the privacy laws.

• Find a vendor that you have worked with in the past, whom you can trust, and that is Safe Harbor Certified.

Personnel

• Have experienced personnel because in most countries you are not trusted and all eyes are upon you, waiting for you to make a mistake.

• Confer with local individuals to understand where electronic data exists.

• Once you understand where data exists have your experienced personnel lock it down to preserve the data.

• Create a plan to collect the data and execute the plan.

DOJ Protocol

• New Protocol was released in February of 2012.

• Joint Electronic working group was created with the goal of creating best practices for government and criminal matters.

• The group looked at ways to decrease costs, increase efficiency and security.

• The protocol came up with ten categories that can be put in three buckets:

o    Understanding, experience and knowledge of ESI
o    Meet and Confer
o    The need for discovery coordinators on multi-defendant matters

Session 4:  Roadblocks & Detours: Navigating Pan-Asia Privacy Laws
Secret Session:  This session was not announced and did not appear on the agenda…a nice little treat from ACEDs.
Speaker:  John Bace, an adjunct professor from John Marshall Law School in Chicago.

The session covered issues that arise when collecting data in Asian countries.

Mr. Bace discussed how many Asian Pacific countries have enacted, or are in the process of enacting, data privacy legislation since the Federal Rules of Civil Procedure were amended in 2006.

• Different countries have very different laws that govern the retrieval of data.

• Many of the individuals attending the session shared stories and strategies when dealing with specific countries.

Session 5:  Do-It-Yourself (DIY) Discovery
Speakers: Michele Lange, Arnaldo Perez, Kimarie Stratos, Pradeep Victor, David Yerich
Moderators: James Bickley

The panel discussed how to evaluate what to bring in-house and how each corporate environment impacts those decisions.

• Consider what resources your corporation has available, the company’s ability to manage products, internal politics and most importantly budget dollars.

• Where you should start:

o    Information management – this area will allow you to keep costs down.
o    Preservation management – implement a legal hold tool and stop automated purging processes.
o    Collection management – allows you to limit interference with employees’ day to day work.
o    Culling and Early Case Assessment – if you can cull down data in-house, you are limiting your risk because only a small set of corporate data is actually going beyond the corporate firewall.

• David Yerich urged in-house counsel everywhere to start with something to get your feet wet, explaining that there are plenty of low cost tools that you can start with.

Session 6:  Asking the right questions and getting the right answers
Speakers: Dale Beauchamp, James Bickley, Julie Brown, David Yerich
Moderators: Michele Lange and Emma Quinn

The panel highlighted that there are many vendors and given how varied their experience levels are, an organization must FIRST evaluate corporate needs and case needs in order to determine the right fit.

• Look to your own company’s resources.

• Research vendors and create a short list.

• Specific things to take into consideration when evaluating:

o    Vendor references
o    Vendor experiences
o    Company financial/stability
o    Capacity
o    Vendor location
o    Project management experience
o    Confidentiality
o    Security
o    Costs

Session 7:  International E-discovery
Speakers: Ervin Gonzalez, Alvin Lindsay, Adam Pollitt, Emma Quinn, Jon Talotta
Moderators: Charles Intriago and Kimarie Stratos

The panel discussed the obstacles for both plaintiff and defense counsel to show respect for foreign companies, individuals, courts and laws.

• Work carefully through the foreign countries so that they can retrieve data needed to satisfy court obligations without being criminally charged and fined due to privacy laws and blocking statutes.

• Protective orders are a good method to show respect and concern for the laws of the country and the privacy of their citizens.

• US judges can be persuaded to call a foreign judge to get an agreement regarding collecting data.

• Presently, neither the Supreme Court nor the European high courts have weighed in on the this issue, but Ervin Gonzalez believes we will see a decision in the next year or so.

• The most hotly debated issue is whether data being sent back and forth between a company headquartered in France with subsidiaries in the U.S. is protected by the privacy laws due to the data being created in France, or if it is not protected since it was sent to the US.