“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 Advantage Jeff Fehrman, Vice President of Forensics and Consulting, Integreon Bennett B. Borden, Partner, Chair E-Discovery and Information Governance Practice Group, Williams Mullen
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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.
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“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
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
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
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.
• 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.
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
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
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.”
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.”
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?
“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
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)
“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)
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.