Lawyer competency in the age of e-discovery

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Lawyer Competency in the Age of eDiscovery

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ENTER

‘SUMMIT20’

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Speakers

Hon. Patrick WalshU.S. Magistrate JudgeCentral District of CA

Philip FavroSenior Discovery CounselRecommind, Inc.

Craig BallAttorney & Forensic TechnologistCraig D. Ball P.C.

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The Need for Technological Competence in eDiscovery

The Law in 2014 on the Preservation and Production of ESI

Safeguarding Client Confidences, Attorney Work Product, and the Lawyer-Client Privilege

Affirmative Duties of Counsel in eDiscovery

Resources / Q & A

Agenda

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The Need for Technological Competence in eDiscovery

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“The landscape of litigation has forever changed, and there is no going back to a paper-centric world. Too many lawyers are like farriers after the advent of the automobile, grossly--even stubbornly--unprepared to deal with electronic evidence.”

The eDiscovery Competency Landscape in 2014

Craig Ball, Ten Things that Trouble Judges about e-Discovery, EDDE J., Autumn 2010, at 2

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“The biggest problem I see with electronic discovery is that lawyers are using 20th-century technology—that is, obtaining all of the documents, organizing them in folders, and trying to read and digest them—to address 21st-century production.”

20th-Century Methods Won’t Satisfy 21st-Century Challenges

Patrick Walsh, Rethinking Civil Litigation in Federal District Court, 40 Litig. 6, 7 (2013)

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eDiscovery Competency Requires Lawyers to Understand Technology and to Consider Alternative Methods

“Practitioners need to embrace 21st-century technology and trust that it will provide them with the best chance of obtaining the most critical information at the lowest cost.”Patrick Walsh, Rethinking Civil Litigation in Federal District Court, 40 Litig. 6, 7 (2013). See also MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 8 (2013)

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The Law in 2014 on the Preservation and Production of ESI

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• The duty to preserve “includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation.”

• “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . subject to the limitations imposed by Rule 26(b)(2)(C).”

The Current Law on Preservation and Production in Discovery

FED. R. CIV. P. 26(b)(1); Apple v. Samsung, 881 F. Supp. 2d 1132, 1136-37 (N.D. Cal. 2012)

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• Mobile Device Data• Cloud Stored ESI• Social Network Materials• Email• Unstructured Data• Legacy Data• Database ESI• Paper Documents• Backup Tapes

What Potentially Relevant Information Must Be Preserved & Produced?

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Preservation & Production of Relevant Mobile Device Data

“Every one of the custodians were asked the explicit question do they use these devices for personal use — for work-related use, and they disavowed it, some multiple times. . . . several high priority custodians [later confirmed though] that they used their personal mobile devices for work-related purposes.”

Small v. University Medical Center of Southern Nevada., Case No. 2:13-cv-00298-APG-PAL, *25 (D. Nev. Aug. 18, 2014)

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Preservation & Production of Relevant Cloud Stored Data

“Tellermate knew from the outset that its termination of the Browns was premised on their allegedly inadequate sales performance, making the performance of other sales managers or representatives crucial evidence in the case . . . . it should have been obvious from the outset that failing to preserve the integrity of [the salesforce.com] information would threaten the fairness of the judicial proceedings.”Brown v. Tellermate Holdings Ltd., Case No. 2:11-cv-1122 (S.D. Ohio July 1, 2014)

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Regardless of Data Type, Overly Broad Requests are Improper

“Plaintiffs argue they are entitled to inspect and image the cell phones of the individual defendants under the broad scope of discovery . . . the Court finds that the request as framed is overly broad and too intrusive for this stage of discovery.”

Bakhit v. Safety Markings, Inc., No. 3:13-CV-1049 (JCH) (D. Conn., June 23, 2014)

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Manual review, keywords, visualization, concept search, data clustering, predictive coding, etc. may be employed so long as productions made with these methodologies satisfy the discovery touchstones of:• Relevance• Proportionality• Reasonableness

What Search Methodologies are Acceptable in Discovery?

Fed. R. Civ. P. 26(b)(1); 26(b)(2)(3); 26(g)(1); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

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Safeguarding Client Confidences, Attorney Work Product, and the Lawyer-Client Privilege

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Preserving Client Confidences and Secrets

Cal Bus & Prof Code § 6068(e)(1)

It is the duty of an attorney to . . . maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

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Preventing Unauthorized Disclosures

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.

MODEL RULES OF PROF’L CONDUCT R. 1.6 MODEL RULES OF PROF’L CONDUCT R. 1.6, cmt. 19

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“The Steering Committee wants the whole seed set Biomet used for the algorithm's initial training. That request reaches well beyond the scope of any permissible discovery by seeking irrelevant or privileged documents used to tell the algorithm what not to find.”

No Obligation to Disclose Non-Responsive Documents

In re Biomet M2a Magnum Hip Implant Products Liability Litig. (Biomet II), No. 3:12-MD-2391, (N.D. Ind. Apr. 18, 2013)

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• “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”

• “[Courts] must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.”

The Attorney Work Product Doctrine

FED. R. CIV. P. 26(b)(3)

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“In cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research. . . . We believe [counsel’s] selective review of [her clients’] numerous documents was based on her professional judgment of the issues and defenses involved in this case.”

Seed Sets and other Document Compilations May Reflect a Lawyer’s Conclusions, Opinions, & Legal Theories

Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986)

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• A confidential communication

• Between the client and the lawyer

• Made for the purpose of obtaining a legal opinion or advice

Basic Elements of the Lawyer-Client Privilege

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• Text and social media messages – including ostensibly private messages – may be accessed and monitored by third parties under the governing terms of service

• “[I]f you have an idea or information that you would like to keep confidential . . . do not post it to any LinkedIn Group, into your Network Updates, or elsewhere on LinkedIn.”

Text and Social Media Messages Generally Lack Confidentiality

Inviting Scrutiny: How Technologies are Eroding the Attorney-Client Privilege, 20 Rich. J.L. & Tech. 2 (2014)

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• Providers of cloud computing services often have access and monitoring rights to a company’s cloud hosted data

• Those rights may extend to third party companies that analyze customer data to help improve the provider’s level of service

• Memorialized in service level agreements, those rights may very well destroy the confidentiality required to keep counsel’s discussions privileged

Cloud Providers May Lack Confidentiality

Inviting Scrutiny: How Technologies are Eroding the Attorney-Client Privilege, 20 Rich. J.L. & Tech. 2 (2014)

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Affirmative Duties of Counsel in eDiscovery

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1. In-house counsel should gauge retained counsel’s eDiscovery competency on legal issues, technology, process, and strategy

2. Retained counsel should ensure that it has access to and understanding of the client’s information retention policies and practices

3. Retained counsel should confirm that the client has an effective litigation hold process and take steps to remedy any deficiencies

Affirmative Duties of Counsel in eDiscovery

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Resources

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Resources

Hon. Patrick J. Walsh,Rethinking Civil Litigation in Federal District Court, 40 LITIG. 6, 7 (2013)

Craig D. Ball,Ten Things that Trouble Judges about e-Discovery,EDDE J., Autumn 2010, at 2

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Resources

The Security Nat’l Bank of Sioux City, Iowa v. Abbott Laboratories, No. C 11-4017-MWB (W.D. Iowa July 28, 2014).

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Resources

Guidelines Regarding the Use of Predictive Codinghttp://www.ctrlinitiative.com/home/resources/

Model Stipulation and Order re Use of Predictive Codinghttp://www.ctrlinitiative.com/home/resources/

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RESOURCEShttp://www.recommind.com/mind-over-matters

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Q & A

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Thank you!!

Judge Patrick J. Walsh United States District Court Central District of California

Craig BallCraig D. Ball, P.C.(512) 514-0182craig@ball.net@CraigBall

Philip J. Favro Recommind, Inc.(650) 714-9134phil.favro@recommind.com@philipfavro