Session 1:  Paying your opponent’s E-discovery bills
Speakers: John Barkett, Robert Barth, Jeffrey Jacobson, Helen Bergman Moure

The panel focused on the use of 28 USC Section 1920(4) to retrieve specific E-discovery costs.

Mr. Barth laid out the facts of the Race Tires of America case:

The defendant, after summary judgment, was favored and the judge found that the plaintiff had failed to establish antitrust injury.  The defendant filed bills of cost against the plaintiff under Federal Rule 54(d), which provides that costs can be given to the prevailing party. Federal statute 28 U.S.C. § 1920 enumerates the kinds of “costs” that may be awarded. Section 1920(4) permits taxing costs that cover fees for exemplification and the costs of making copies of any materials.

• The district court affirmed the Clerk of the Court’s assessment to award the defendant all of their e-discovery costs and awarded $367,000.
• The Third Circuit reversed the decision regarding the costs with respect to the defendant’s expenses to scan paper documents into electronic image format, concluding that the 2008 amendment of §1920(4) was intended to expand the reach of the statute to costs beyond making copies of paper documents such as creating electronic copies BUT not as far as all e-discovery services.
• The panel discussed the ramifications of this case for federal cases but cautioned that states have different rules.
• Mr. Barth’s most valuable piece of advice was that, prior to submitting a bill of cost, be sure to attach extensive and detailed e-discovery cost documentation.

Session 2:  How predictive coding and other emerging forms of intelligent review are altering the E- discovery landscape
Speakers: Dale Beauchamp, Stephanie Giammarco, Michele Lange, Jay Leib, Vance McMurray
Moderators: Ervin Gonzalez and Seth Row

The panel discussed how document review has changed from traditional linear paper review into online review, and how the current landscape is transitioning into the world of intelligent review.

• Intelligent review is based on humans and technology working together to create a better product.
• Mr. Lieb explained that you need four things for a successful technology assisted review:

1.    Domain expert
2.    Analytical engine
3.    Statistical validation
4.    Training professional

• Da Silva Moore is evidence that properly training a seed set is vital.  There are two methods to achieve this:

1.    Random sample – documents generated by the software itself using algorithms for the subject matter expert to review.
2.    Subjective review set – documents generated by search terms or known responsive documents feed into the software.

• Challenges of intelligent review:

o    Wrong strategy – have a qualified subject matter expert review the data.
o    Expectation setting – understanding the goal of the project.
o    Review team training – having the budget and time to train the review team and subject matter experts.
o    Communication – having the review team understand the benefits of intelligent review.

• Mr. Beauchamp pointed out that, even if you have the tools in place, unless you know how to use them, the project will not be successful.

 

After completing a rigorous training and examination process, Matthew Porter, Falcon Discovery’s Director of Legal Technology, has been recognized with the LAW PreDiscovery EDD Certification from Lexis Nexis. With this accomplishment, Mr. Porter has added another valuable component to his growing list of certifications.

About LAW PreDiscovery:

LAW PreDiscovery™ software offers the power to produce and organize paper and electronic files with a dynamic imaging and electronic discovery processing application. With LAW PreDiscovery, pre-reviewing and culling non-responsive e-discovery and scanned documents before reviewing and processing helps eliminate unnecessary costs and reduce time.

Session 1:  Two similar cases.  Two very different outcomes.  Recap of Driven presentation about the decisions in Da Silva Moore and Pippins.

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.

 

As the snow began to fall again in Denver, Falcon Discovery’s ACEDS certified Project Management team retreated to the sunshine of Hollywood, Florida to share ideas and insights with industry leaders and e-Discovery certification experts at the annual ACEDS conference.

For those who were unable to attend the conference this year, we’ve posted our notes from day 1.  Please visit again this week for regular updates on each day at ACEDS 2012.

Session 1:  Succeeding in Catastrophic Cases

Speakers: John Bagby (Penn State), Stephen Fernelius (Fernelius Alvarez, LLC), Ervin Gonzalez (Colson Hicks Eidson), Jeffrey Jacobson (Debevoise & Plimpton LLP)
Moderators: Charles Intriago and Helen Bergman Moure

• Since many catastrophic cases cross borders, cooperating and understanding other sovereigns’ laws and rules will allow you to meet regulatory agency requests and court obligations (Jeffery Jacobson).
• Best practice is to have scheduled meetings with the judge or magistrate, for example every Friday, to deal with discovery issues, which allows discovery to move forward productively since each side will need to report to the judge frequently.
• A discovery team should be made up of:
1. Expert on e-Discovery Process
2. Trial lawyer
3. Key Client Representative
4. Vendor Technology Team
5. In-house Counsel
6. In-house IT Representative

• Plaintiff and defense counsel should be in agreement that cooperation is important to both sides.
• You need to know the way people speak in the industry, and understand where and how long the data is stored by your client.
• You need to be able to create and iterate specific search terms that will retrieve the documents that will prove your case.
• Many defense counsel believe that being cooperative allows the plaintiff to save money without compromising their case.

Session 2:  Harnessing Social Media

Speakers: John Bagby (Penn State), Jett Hanna (Texas Lawyers’ Insurance Exchange), Noah Lang (Reputation.com), Seth Row (Holland & Knight)
Moderators: Dale Beauchamp and Helen Bergman Moure

• Understand and discuss the dangers of social media with your clients.
• Work with your clients to create training programs for the use of social media.
• Weigh the business implications of prohibiting social media use during litigation. This does not destroy any information; rather, it hinders opposing counsel’s ability to regularly review your client’s material, and it limits what your client is saying out in the public domain.
• The use of social media brings ethical issues into consideration, including inappropriate contact with opposing parties.

Session 3:  Special Maters; referees, liaisons and neutrals

Speakers: John Barkett (Shook, Hardy & Bacon LLP), Robert Barth (US District Court for the Western of Pennsylvania Clerk), Seth Row (Holland & Knight), John Upchurch (Upchurch Watson White & Max)
Moderators: Steve Fernelius and Ervin Gonzalez

• The decision to request a Special Master should be made on a case-by-case basis.
• The Western District of Pennsylvania is the only district that has developed ground rules regarding Special Masters.
• Pennsylvania ground rules include creating ways to certify Special Masters and the creation of a list of experts who may be considered for the position.
• Special Masters are needed when parties can’t agree and the court needs to appoint someone to make decisions on open issues.  If parties CAN potentially agree, a neutral should be put in place to mediate rather than using a Special Master.

Session 4:  E-discovery Knowledge Nirvana

Speakers: 50 Great E-Discovery Service Provider Subject Matter Experts

• ACEDs has grown and is more widely accepted.  Certain e-discovery firms now require that their project managers become Certified E-discovery Specialists (CEDS).
• The conference has more than doubled in size since last year.
• Over 50 experts were given an opportunity to share one best practice.

In re Delta/AirTran Baggage Fee Antitrust Litigation,
1:09-md-2089-TCB (N.D. Ga. February 3, 2012)

A failure to communicate: A case of failing to perform a reasonable inquiry by not following up with IT on the completeness of collections.

Summary:

In the case In re Delta/AirTran Baggage Fee Antitrust Litigation, the court sanctioned defendant, Delta Air Lines (“Delta”), for locating and producing 60,000 pages of responsive material after the close of discovery. Defendant discovered that they had inadvertently failed to collect and search several hard drives and failed to locate several backup tapes prior to the close of discovery. Defendant’s counsel asserted that they had relied on assurances given by Delta’s IT department, but the court found that counsel failed to sufficiently follow-up with the IT department. Although the court did not find defendant’s omission to be intentional, it nevertheless found that defendant “did not conduct a reasonable inquiry” and levied monetary sanctions against defendant. However, given that defendant did cooperate once the error was reported, the court refrained from precluding defendant’s use of the material.

Judge Batten identified several key errors in how defendant dispatched its discovery obligations, including:

• Defendant’s counsel did not follow-up and confirm with Delta’s IT department that each hard drive that was supposed to be collected actually had been collected and searched. Although defense counsel did e-mail the IT department with a list of custodian hard drives that should have been loaded, IT “did not respond with confirmation that each listed person’s drive was on the system.”

• Despite intense questioning and discussion of backup tapes with the court, defendant’s counsel did not personally search the location where the backup tapes were ultimately discovered. Instead, counsel had relied on defendant’s IT department’s statements regarding the contents of the location and the absence of backup tapes in that location.

• Prior to discovering the misplaced data, defendant repeatedly (approximately 20 times) stated to the court and plaintiffs that they had produced everything.

• Defendant did not promptly inform the court of its misrepresentations. Instead, defendant waited nearly two weeks and until after the court ruled on a spoliation issue to inform the court of the newly discovered data.

Falcon’s Case Takeaways:

Here are some measures that Delta, as a corporation confronted with numerous legal matters each year, could have implemented to avoid these sanctions:

•  Create and follow standardized discovery processes for use in every matter. These processes should include (i) tracking of legal holds, (ii) collections, (iii) processing, (iv) search, (v) review, and (vi) production of all material in a matter.

• Implement and utilize an insourced or co-sourced team dedicated to the discovery function across matters, who reinforces the use of standardized processes in every case.

• Designate a single point of contact (preferably a dedicated discovery case manager) who will verify statements made by internal business units (e.g., IT), and identify and clarify any misunderstandings with outside counsel so that outside counsel is adequately informed about key facts and does not make inaccurate statements to the opposition and the court.

The Delta decision is a good example of how a corporate legal department can fall victim to an ad hoc approach to e-discovery management, particularly in the absence of a well-defined process that is tightly managed across matters by a dedicated discovery team.

Fortunately for Falcon Discovery, the Colorado chapter of the Association of Corporate Counsel (ACC) brought back their annual Ski & CLE® event for 2012 and asked Falcon to be a part of it. Skiing at Vail while earning CLE credit? How could we turn that down?

Close to 40 Colorado ACC members met at 6 am on February 8th to hop on board a bus heading to Vail Mountain. En route, attendees were treated to a continental breakfast and coffee while they earned CLE credit, during which, Falcon Discovery had the opportunity to share our thoughts and e-discovery predictions for 2012.

After a full morning of skiing and a mid-mountain private lunch, the group took to the Nastar race course and battled it out for top honors. The only thing to top the determined looks on the racers faces as they crossed the finish line was the après ski laughter and fun that spilled over into the ride home.

Many thanks to Carmel Gill and the ACC Board for bringing this incredible event back to life.

Falcon’s CEO, Don McLaughlin, recently co-facilitated a web seminar with ARMA International entitled ‘Litigation – Preparation, Legal Holds, and Beyond’.

In this new technology-laced playing field, it is important to know how discovery is conducted and managed. Participants will learn how the discovery process works, the dangers of failing to prepare for litigation, how to prepare your organization before litigation arises, and most importantly, what to do once you are in litigation. After completing this seminar, you will be able to identify and avoid the common pitfalls that can cost your organization time, money, and even a positive outcome.

This web seminar is qualified for 1 ICRM Maintenance Credit. For more information about this event, click here.

Update: We have received extremely positive feedback from participants of this webinar! Check out what attendees are saying:

“Best Web Seminar I’ve taken to date!”         

“Good overview, presented clearly and thoroughly.”

“Very helpful resource! Thank you.”

“Very logical situations that are likely to be faced in the future.”

“Interesting and some very salient points.” 

“I liked the entire web seminar topic. Very informative.”

“I liked this web seminar because it had critical information about how to prepare, and manage legal holds.  Also, the pitfalls and processes that are involved in litigation.”

“The whole content of the seminar was extremely beneficial to me.”

 

Caroline Palmer, Falcon Discovery’s Director of Legal Technology, has been recognized as a Relativity Certified Administrator by kCura Corporation, developers of the powerful Relativity e-discovery application. 

RCA certification is granted to select individuals based on their experience in managing Relativity in the field, plus a formal examination that tests both knowledge of Relativity and the ability to use the application in practical, hands-on exercises. In addition to recognition of their expertise Certified Administrators also receive direct access to second level kCura support, which enhances their ability to leverage Relativity as a solution for clients. 

Falcon Discovery is a Relativity Consulting Partner of kCura Corporation. Falcon offers a number of services related to Relativity including administration of client-owned Relativity installations, and hosting and management of individual cases

…to see some old colleagues speak about leveraging technology and cost-cutting models for in-house legal departments at the University of Colorado School of Law.

For years in-house legal departments relied on outside counsel to meet specialized legal needs. With the dramatic increase in outside counsel fees and the rising pressure to cut costs, many are considering new strategies to keep legal budgets lean. Strategies utilized include: (1) direct management of outsourcing and reliance on non-traditional entities for basic legal processes  (i.e., electronic discovery); (2) adoption of performance metrics to drive greater efficiencies and increase productivity; and, (3) employment of in-house attorneys with an eye towards better managing legal needs. Rich Baer, EVP and CLO at UnitedHealth Group and Mark Chandler, SVP, GC and Secretary at Cisco will be among the professionals that will be evaluating all three-and other-effective strategies for managing costs.

For more information on this Silicon Flatirons event, please click here.

Falcon’s CEO, Don McLaughlin, interviews David Yerich of UnitedHealth Group at LegalTech NYC 2012.