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eDiscovery for the Small or Solo Law Firm

A Clio Webinar with Joshua Lenon – Clio

Rakesh Madhava - Nextpoint

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Agenda•  E-Discovery:

– Defined (10 minutes)– Principles (10 minutes)– Rules (10 minutes)

• Integrating E-Discovery in Your Practice (15 minutes)

• Proportionality in Other Jurisdictions (5 minutes)

• Questions

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Instructors• Joshua Lenon

– Lawyer in Residence at Clio– Admitted in New York

• Rakesh Madhava– Nexpoint CEO & Founder– Litigation Consultant since 1996

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E-Discovery

Rakesh Madhava Nextpoint CEO & Founder

Thank you, Clio!

Leveling The Playing Field: E-discovery For Small Firms

Nextpoint serves over 250 firms like yours across the country

Nextpoint is a powerful evidence management service.

contract

It’s software designed to help you understand the facts in your cases.

WHAT IS E-DISCOVERY?

�  From Wikipedia:

Electronic discovery (or e-discovery or ediscovery) refers to discovery in civil litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI).[1] These data are subject to local rules and agreed-upon processes, and are often reviewed for privilege and relevance before being turned over to opposing counsel

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Source: http://en.wikipedia.org/wiki/Electronic_discovery Various (2009). Eoghan Casey, ed. Handbook of Digital Forensics and Investigation. Academic Press. p. 567. ISBN 0-12-374267-6. Retrieved 27 August 2010.

WHAT IS E-DISCOVERY?

�  Ask the inverse question. What is not eDiscovery?

�  It still Discovery. With the evidence being electronic.

�  There is very little ‘non-e’ discovery, such as physical or forensic evidence.

�  Even this generally is produced electronically (photos, videos, reports)

�  The existing legal frameworks for dealing with evidence still are relevant, if somewhat outdated.

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PRINCIPLES OF E-DISCOVERY

�  7th Circuit Electronic Discovery Committee http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf

This is a pilot project within the 7th Federal Circuit to examine and recommend changes to meet the challenges of electronic data.

�  Sedona Conference Principles for Electronic Document Production Second Edition

https://thesedonaconference.org/publication/The%20Sedona%20Principles

The Sedona Conference is a think tank that publishes principles and guidelines for the bench, the bar, and rules making committees.

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7TH CIRCUIT ELECTRONIC DISCOVERY COMMITTEE

�  Purpose is to secure just, speedy, and inexpensive determination of every civil case

�  Cooperation, Proportionality

�  ECA: Meet and Confer, Liaison, Preservation, Scope, Identification, Production Formats

�  Education: FRCP Rules 26, 33, 34, 37 and 45 as well as State Rules, 2006 Amendments

�  Duty of Continuing Eduction

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Source: http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf

SEDONA CONFERENCE PRINCIPLES 1.  Electronically Stored Information is Discoverable

2.  Proportionality is paramount

3.  Parties should confer early

4.  Discovery requests should be clear

5.  Preservation should be reasonable and done in good faith

6.  Responding parties are best situated to evaluate the scope of effort

7.  Active data is the primary source, backups only when needed

8.  Requesting party has the burden to show productions are lacking

9.  Deleted, shadowed or residual data are not required

10.  Responding party should follow reasonable procedures to protect privilege and objections

11.  Responding parties can use tools and processes like sampling and searching and selection criteria

12.  No obligation to preserve and produce metadata absent agreement

13.  Reasonable costs are borne by the responding party

14.  Sanctions should only be considered if there was intentional or reckless failures

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Source: https://thesedonaconference.org/publication/The%20Sedona%20Principles

HOW DO THE SEDONA PRINCIPLES FIT? �  The mission of Working Group 1 is to develop principles and best practice

recommendations for electronic document retention and production in civil litigation.

�  The group released the first public comment draft of The Sedona Principles in March 2003, and the impact was immediate and substantial. Within a few weeks, The Sedona Principles was cited by the Civil Rules Advisory Committee Discovery Subcommittee as one of the reasons to focus on possible amendments to the Federal Rules of Civil Procedure, and it was cited in the seminal Zubulake case in the Southern District of New York.

�  The Sedona Principles and several companion works, including guidelines for electronic document management, an authoritative glossary of e-discovery and electronic records management terms, several commentaries on e-discovery related topics, and cooperation guidance for trial lawyers, in-house counsel, and the judiciary.

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WHAT CASE LAW MANDATES E-DISCOVERY TECHNOLOGIES �  No specific technologies mandated

�  FRCP Rule 16: Pretrial Conferences; Scheduling; Management

�  FRCP Rule 26: Duty to Disclose; General Provisions Governing Discovery

�  FRCP Rule 33: Interrogatories to Parties

�  FRCP Rule 34:Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

�  FRCP Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

�  FRCP Rule 45: Subpoena

�  2006 Amendments to FRCP amended all of the above rules specifically toward ESI

�  State Rules

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Source: http://apps.americanbar.org/lpm/lpt/articles/tch08061.shtml

WHAT TOOLS ARE AVAILABLE TO FACILITATE SMALL FIRM DISCOVERY �  Nextpoint (disclaimer, I’m the CEO)

�  American Bar Association Legal Technology Resource Center http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis.html

�  State and Local Bar Associations

�  Build versus Buy

�  Consultation with end-clients on litigation preparedness

�  Find you own workflow

�  Find a reliable partner “your person”

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WHAT TOOLS ARE AVAILABLE TO FACILITATE SMALL FIRM DISCOVERY

�  Understand the steps in the process

�  Collect

�  Analyze

�  Review

�  Exchange

�  Prepare

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HOW TO PICK AN EDISCOVERY TOOL �  proportionality

�  cost - not too much, not too little

�  leave plenty of time

�  allow for training, which one is easiest to use

�  security provisioning, how are you securing data

�  speed of platform

�  availability of data to the entire trial team

�  no one size fits all.

�  Consider the cloud

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INTEGRATE EDISCOVERY INTO PRACTICE

�  Clio integration

�  Join our Beta Testing Group!

�  Integrations for time tracking, case history, single case sign-on, correspondence, case management, document management, pleadings, discovery plans.

�  Which ones work best for you?

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Thank you!

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Integrating E-Discovery

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Electronic Discovery Reference Model / 2014 / v3.0 / edrm.net

Complaint/Answer: Internet collections and early case assessments

Pre-Discovery: Meet and confer assistance, search syntax assistance, file processing

Relevance and Privilege Review: Review setup, privilege identification, electronic production transfer

Fact and Expert Discovery: Electronic witness binders and transcript libraries

Hearing Preparation: Arbitration, mediation, summary judgement, injunction, class cert, daubert, markman, pre-trial

Evidence and Pleading Libraries: Deposition exhibits, transcripts and video file sharing for pleadings

Trial Support: Opening statement, demonstratives and courtroom

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Integration Requirements

• Forward and backwards looking• Agnostic Tools• Collaborative

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Forward and backwards looking

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Litigation Holds & Backups• Clients need data management policies on what what to retain.

• Clients need to store information in central, accessible repositories.

• Lawyers need to be able to communicate need for holds.

• IT needs to be able to segregate data

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Agnostic Tools

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Agnostic Tools

• EDRM lists over 200 suggested file types for turning over ESI

– Native, Near-Native, Image, Paper

• Pick tools that can handle varied data formats & metadata

Nextpoint accepts hundreds of different file types

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Collaborative

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E-Discovery Collaboration

• Rules encourage communication and negotiation between parties on e-discovery– Dates– Formats– Presentation

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Powerful collaboration tools

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Proportionality in Other Jurisdictions

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Canada

• Proportionality introduced in 2009-2010 in Nova Scotia, Ontario, Alberta, and British Columbia

• Important new standards:– Materiality trumps relevance– Evidence required for additional document demands

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United Kingdom• “Proportionate costs” entered as part of the 2013 Jackson Reforms

• Parties make the assessments about scope, method and cost

• “Standard disclosure” costs must be disclosed• Court may make disclosure orders based on “overriding objective”

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Thank YouJoshua Lenon

Joshua@goclio.com

@JoshuaLenon

Linkedin.com/in/joshualenon