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Pre-Trial Pitfalls in E-Discovery

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					PITFALLS IN E-DISCOVERY
  Operating Ethically under the Rules

                   David A. Chaumette, De la Rosa & Chaumette
                  State Bar of Texas, Winning Before Trial 2009
Five things about electronic discovery

   These rules apply to everyone. (Rule 5.01)
   Preservation is key, and the other side knows it. (or Litigation
    holds are your friends.) (Rule 3.02)
   Know what you don’t know and how you don’t know it. (Rules
    1.01, 3.03)
   The bullseye is on everyone’s back. (Rule 1.06)
   Documentation and some disclosure is good for the soul (and
    the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05)




                                                          De la Rosa & Chaumette 3
So, how do you avoid this?




                         De la Rosa & Chaumette 4
Or this?

 Assistant’s Goof Results in Late Brief, Costs Lawyer $5,000

 Posted Jun 12, 2008, 11:10 am CDT
 By Debra Cassens Weiss

 Updated: A federal appeals court has fined a lawyer $5,000 for filing a
 brief too late.

 The Chicago-based 7th U.S. Circuit Court of Appeals had granted litigant
 Clarence Gross several extensions to file the brief, first due in January
 2007, while the case was in mediation, the Wisconsin Law Journal reports.
 He was given a last and final deadline of April 21 this year, which his
 lawyer missed by four days.


                                                             De la Rosa & Chaumette 5
Five things about electronic discovery

    These rules apply to everyone. (Rule 5.01)
    Preservation is key, and the other side knows it. (or Litigation
     holds are your friends.) (Rule 3.02)
    Know what you don’t know and how you don’t know it. (Rules
     1.01, 3.03)
    The bullseye is on everyone’s back. (Rule 1.06)
    Documentation and some disclosure is good for the soul (and
     the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05)




                                                         De la Rosa & Chaumette 6
Preservation Pre-Suit.

   Make sure that you can still access legacy system
    data.
   Every time someone gets a new computer,
    methodically consider whether to make an image of
    that computer.
   Communicate to employees that record retention is
    everyone’s job.



                                            De la Rosa & Chaumette 7
Preservation in litigation.
   Once you are aware that litigation might occur,
    consider the following steps:

     Send a “hold” letter, even to your own people.
     Calendar regular reminders of this (avoid special
      reminders, if possible).
     Be sensitive to departing employees and the
      systems they use.
     Ask where people keep electronic “stuff.”



                                               De la Rosa & Chaumette 8
Preservation in litigation.

   Once you are aware that litigation might occur,
    consider the following steps:

     Don’t solely rely on the IT staff.
     Interview the IT staff early.

     Document every step you take.

     Be prepared to interview everyone and ask
      everyone the same set of questions.


                                               De la Rosa & Chaumette 9
Five things about electronic discovery

    These rules apply to everyone. (Rule 5.01)
    Preservation is key, and the other side knows it. (or Litigation
     holds are your friends.) (Rule 3.02)
    Know what you don’t know and how you don’t know it. (Rules
     1.01, 3.03)
    The bullseye is on everyone’s back. (Rule 1.06)
    Documentation and some disclosure is good for the soul (and
     the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05)




                                                         De la Rosa & Chaumette 10
Rule 1.01 Competent and Diligent Representation


    E-discovery obligations related to competence:
      Educate yourself and your clients about electronic discovery
       issues before a complaint or answer is ever filed.
      Know enough to know what you don’t know and when to hire
       outside experts.
      Follow evolving e-discovery case law and rules changes.

    But it’s not necessarily just about the law…




                                                      De la Rosa & Chaumette 11
Anticipating the questions…
   Who is on your electronic document team?
   Who is the team’s spokesperson (and the backup
    spokesperson)? Think testimony.
   Where are things? Avoid new hunts.
   What electronically stored information is
    “inaccessible” because of “undue burden or cost?”
    (And ask yourself: “do I really need all of this stuff?”)
   What are we saying publicly?


                                                 De la Rosa & Chaumette 12
Anticipating the questions…
   What’s our storage-media policy for employees?
    What do we do when people don’t follow them?
   What third parties have ESI that is arguably within
    your “possession, custody, or control?”
   How can we stay current? Think mergers,
    acquisitions, transfers…
   How do we keep our employees current?



                                               De la Rosa & Chaumette 13
Rule 3.03 Candor to Tribunal

 a) A lawyer shall not knowingly:
    (1) make a false statement of material fact or law to a tribunal;
    (2) fail to disclose a fact to a tribunal when disclosure is necessary
        to avoid assisting a criminal or fraudulent act;
    (5) offer or use evidence that the lawyer knows to be false.
 (b) If the lawyer has offered material evidence and comes
     to know of its falsity, the lawyer shall make a good
     faith effort to persuade the client to authorize the
     lawyer to correct or withdraw the false evidence. If
     such efforts are unsuccessful, the lawyer shall take
     reasonable remedial measures, including disclosure of the
     true facts.
                                                               De la Rosa & Chaumette 14
Five things about electronic discovery

    These rules apply to everyone. (Rule 5.01)
    Preservation is key, and the other side knows it. (or Litigation
     holds are your friends.) (Rule 3.02)
    Know what you don’t know and how you don’t know it. (Rules
     1.01, 3.03)
    The bullseye is on everyone’s back. (Rule 1.06)
    Documentation and some disclosure is good for the soul (and
     the pocketbook). (or talk early, talk often.) (Rule 1.03, 1.05)




                                                         De la Rosa & Chaumette 15
Rule 1.06 Conflict of Interest

   Lawyer cannot represent opposing parties in same litigation.
   Otherwise, it’s largely a prejudice and consent issue.
       If lawyer believes no prejudice to parties;
       If parties consent after disclosure of potentially adverse consequences of
        joint representation;
   E.g., joint representation of employer and manager accused of
    employment discrimination.
       Outside counsel learns information about manager that is reason for
        termination.




                                                                  De la Rosa & Chaumette 16
In E-discovery: Conflicts with Clients


   Coleman (Parent) Holdings Inc. v. Morgan Stanley.


    “In court, Morgan Stanley said it is considering a mal-practice
    suit against the law firm that represented it.”


   Qualcomm v. Broadcom.




                                                        De la Rosa & Chaumette 17
Five things about electronic discovery

   These rules apply to everyone. (Rule 5.01)
   Preservation is key, and the other side knows it. (or Litigation
    holds are your friends.) (Rule 3.02)
   Know what you don’t know and how you don’t know it. (Rules
    1.01, 3.03)
   The bullseye is on everyone’s back. (Rule 1.06)
   Documentation and some disclosure is good for the soul (and
    the pocketbook). (or talk early, talk often.) (Rule 1.03, 3.02,
    1.05)




                                                        De la Rosa & Chaumette 18
Rule 1.03 Communication

   (a) A lawyer shall keep a client reasonably informed about
    the status of a matter and promptly comply with reasonable
    requests for information.

   (b) A lawyer shall explain a matter to the extent reasonably
    necessary to permit the client to make informed decisions
    regarding the representation.




                                                    De la Rosa & Chaumette 19
The email you need to watch….

Did Lawyer’s E-Mail Goof Land $1B Settlement on NYT’s Front Page?

Posted Feb 6, 2008, 06:55 am CDT
By Debra Cassens Weiss

Updated: An outside lawyer for Eli Lilly & Co. apparently has two people named
“Berenson” in her e-mail address book. One is a reporter for the New York Times and
the other is her co-counsel assisting in confidential negotiations on a possible $1 billion
settlement between the pharmaceutical company and the government.

The question is whether her e-mail to the wrong Berenson spurred last week’s front-
page New York Times story revealing talks to resolve criminal and civil investigations
into the company’s marketing of the anti-psychotic drug Zyprexa, as Portfolio.com
reports.


                                                                        De la Rosa & Chaumette 20
Confer Early on E-discovery Issues

   FRCP 26 requires parties, before the initial case
    management conference, to:
       (a) “discuss any issues relating to preserving discoverable
        information”; and
       (b) to present to the court a discovery plan setting forth the parties’
        views concerning “any issues relating to disclosure or discovery of
        electronically stored information, including the form in which it should
        be produced.”
   ABA Standards are similar to FRCP.




                                                                 De la Rosa & Chaumette 21
Victor Stanley Inc. v. Creative Pipe Inc.

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

   Designing adequate search protocols “involves technical, if not scientific
    knowledge” that demanded familiarity with “the sciences of computer
    technology, statistics and linguistics.”
   Court cited to The Sedona Conference Best Practices for guidance on search
    and information retrieval techniques.
   Designing a computer-assisted privilege review “requires the utmost care in
    selecting [a] methodology that is appropriate for the task,” “careful advance
    planning by persons qualified to design [an] effective search methodology,”
    “test[ing] for quality assurance,” and documenting the process so that the
    search protocols can be explained to a court in the context of future
    discovery disputes.



                                                                  De la Rosa & Chaumette 22
Managing Litigation

   Rule 3.02 Minimizing Burdens of Litigation -- In the course of
    litigation, a lawyer shall not take a position that unreasonably
    increases the costs or other burdens of the case or that
    unreasonably delays resolution of the matter.

   See Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175
    (D. Md. Oct. 15, 2008).

   Rule 1.05 Confidentiality of Information -- Take precautions
    to avoid inadvertent disclosure.

                                                       De la Rosa & Chaumette 23
Cooperate or Else! – Rule 26(g)
   Mancia :
       Fed. R. Civ. P. 26(g) requires counsel to cooperate and that
        failure to do so can be construed as a violation of the duty
        of “reasonable inquiry” prior to certifying demands or
        responses. Cites Cooperation Proclamation.

   Victor Stanley:
       Failure to agree on a clawback agreement, or agreement
        on choice of search key words results in waiver of privilege
        when unilateral choice of keywords in privilege review did
        not rise to level of “reasonable precautions” to prevent
        inadvertent waiver.
If I had more time…

   Privilege generally.
   Inadvertent disclosure and Rule 502.
   Privilege logs.
   What is “reasonably accessible?”
   Handling confidential information.
   The developing body of law on privacy.




                                             De la Rosa & Chaumette 26
Some (free!!) resources.


  •   www.ediscoverylaw.com
  •   www.discoveryresources.org
  •   www.thesedonaconference.org
  •   www.edrm.org




                                    De la Rosa & Chaumette 27
Wrapping up…
   Ethics in an e-discovery context is similar to ethics outside that
    context.
   Practitioners need to remain vigilant about their duties under
    the Rules.
   Documentation and disclosure will help keep you away from
    sanctions and spoliation.




                                                        De la Rosa & Chaumette 28

				
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