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Industry Trends

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases
 

A recent article in Texas Lawyer discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. As noted at the 2011 Eastern District of Texas Bench Bar Conference in Irving last week, the "Model Order on E-Discovery in Patent Cases" was unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in patent cases.

What's Wrong with eDiscovery Now?

In his speech at the 2011 Eastern District of Texas Bench Bar Conference, "Thoughts on the Status and Direction of Patent Litigation in the United States," Judge Rader accuses the courts of becoming “intolerantly expensive”, forcing “accused infringers to acquiesce to non-meritorious claims” therefore imposing “an unhealthy tax on innovation and open competition”.  He compared the model order to the current Federal Rule of Civil Procedure 30, which limits cases to 10 depositions of 7 hours or fewer.

Rader said "the greatest weakness of the U.S. court system is its expense. And the driving factor for that expense is discovery excesses." Hence, the proposed model order to save the participants in these cases time and money.

Model Order Proposes Limits on eDiscovery

Rader's model order would create several limits on the production of electronically stored information in patent cases, including:

  • Exclusion of metadata from eDiscovery production requests without "good cause";
  • Restrictions on email production requests to specific issues and “not general discovery of a product or business”;
  • Delaying of email production requests until after disclosures about the patents, the accused uses of the invention, relevant financial information and the prior art;
  • A maximum of five custodians per party in email requests, and only five search terms each, unless courts specifically allow in excess of that number (if litigants submit requests that exceed those court orders, they must pay for the extra production);
  • Receiving parties cannot use materials asserted by producing parties as attorney-client or work product privileged;
  • Prohibitions on the use of privileged information produced as part of a mass production or other inadvertent release.

For more information about this model order and its implications, see Model Order Would Limit E-Discovery in Patent Cases.

So, what do you think?  Will the model order “catch on” as a way to limit the eDiscovery possible in patent cases?  Will other jurisdictions adopt the model order? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins!
 

The eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest in the industry and this blog, with recent posts here, here and here to relate developments in the case associated with inadvertent production of 3,900 privileged documents.

Sometimes, the “shoe is on the other foot”, so to speak.

As noted in David’s Snow’s article on Law Technology News entitled Is Cataphora Case a Sign of Vendor-Law Firm Fights to Come?, Cataphora (which has its legal division acquired by Ernst & Young since the case was filed) won a judgment of $317,113 against several big-time mass-torts plaintiffs firms in a breach of contract case.

In Cataphora, Inc. v. Parker et al., Cataphora sued the plaintiffs firms associated with the Chinese drywall multidistrict litigation for breach-of-contract, for cancelling the contract for pre-trial document review after receiving an invoice for an up-front fee of $366,000. Cataphora never did the work.

According to Roger Chadderdon, technology counsel at Cataphora, who represented the company in court, “We got screwed,”. “Their strategy from day one was to drag this out as long as possible to make it go away.”  He says the plaintiffs firms told Cataphora, “Sue us if you dare.”

They dared, and the jury decided in favor of Cataphora, that the contract was enforceable, and issued the award. This case was tried in the Northern District of California Magistrate court – an appeal is expected.

The plaintiffs firms associated with this litigation have been involved in a wide variety of multimillion dollar class-action lawsuits, ranging from Vioxx to the BP oil spill to the Toyota acceleration defect to the Bridgestone / Firestone tire cases.

“These guys are the worst of hypocrites that you can possibly find,” Chadderdon says. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”

Snow’s article quotes Tom O’Connor, a previous thought leader on this blog, for reactions, and O’Connor asked the question “How many vendors have you ever heard of suing lawyers and winning?”,  O’Connor noted that “Mostly the dirty linen in this stuff never goes public.  In the old days, they'd settle the case. From the firm point of view, nobody wanted their business practices aired. That's not the sort of lawsuit that ever would've been filed 5 years ago.”

As Snow’s article notes, the Above the Law blog has a more extensive write-up on the case for more information.

So, what do you think?  Do the McDermott and Cataphora cases signal a trend of contentious relationships between vendor and law firm?  Or are they aberrations?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth
 

Despite the recent economic recession resulting in “crashing” corporate profitability, eDiscovery is still growing as an industry, according to a Market Research Report now available from IBISWorld.

As revealed in a press release announcing the report, revenue in the eDiscovery industry is growing at an annual rate of 5.6% over the last five years to an estimated $786.5 million in 2011.  In line with a rebound in corporate profitability last year, eDiscovery industry revenue jumped 9.1% then and is anticipated to exceed the five-year average growth rate again this year, with an increase of 7.6%.  As the press release notes, “[t]he copious amount of electronically stored information (ESI) has made e-discovery services resilient in the face of tough economic conditions”.  In addition, 60% of law firms are planning on increasing their eDiscovery staff in the next 6 months, according to a survey of 45 AmLaw 200 firms conducted by The Cowen Group.

The IBISWorld press release also notes that while eDiscovery revenue has grown, the number of participants in the industry has declined as the industry has continued to consolidate, with major acquisitions including Symantec Corporation’s acquisition of Clearwell and Hewlett-Packard’s acquisition of Autonomy in 2011 alone.  As a result, the number of industry participants has dropped an estimated average annual rate of 2.0% over the five years to 2011, to 612 businesses.

With corporate profit expected to grow at a rate of 7.3% annually over the next five years (to 2016), continued spiraling growth of ESI volumes and growing demand from the legal market, IBISWorld expects eDiscovery industry revenue to continue to rise at an average annual rate of 6.1% over those five years, to reach $1.1 billion by the end of 2016.  Considerable growth in ESI and the rise of social networks is expected to continue to fuel the demand for new and advanced eDiscovery products like:

  • Processing and Analysis Software,
  • Collection Software,
  • Review Software,
  • Legal Hold Software, and
  • Consulting Services.

The full Market Research report from IBISWorld is available for purchase and download here.

I guess it’s true: People do continue to sue each other as much (and even more) during tough economic times as they do during prosperous times!  And, they certainly continue to have more data.

So, what do you think?  Do these numbers surprise you?  Are you as busy (or even busier) than you were five years ago?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sedona Conference Provides Guidance for Judges
 

Last month, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. The Sedona Conference Cooperation Proclamation has set a non-trivial goal- to teach the profession to collaborate during the discovery process instead of the traditional gladiatorial style of litigation. The Resources for the Judiciary document aims to provide judges with a foundation for creating a collaborative and non-adversarial approach to managing eDiscovery.

The Cooperation Proclamation was published in 2008 and is a short document that argues that if lawyers work together during the discovery phase, the merits of the underlying dispute are more likely to get a fair hearing. Specifically, it calls on lawyers to "work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute." 

The Resources for the Judiciary distinguishes between “active case management” and “discovery management.” The former can be characterized as a proactive and the latter as a reactive judicial approach to managing discovery. While offering guidance for both approaches, the proclamation urges judges to take an active case management model approach. That is not to say that judges should make decisions for parties, but to provide “a clear set of expectations designed to move the evidence-gathering phase of the litigation forward in a speedy and inexpensive way, without the cost, delay, and gamesmanship associated with unmanaged discovery.”

The Resources for the Judiciary is a detailed and practical document, providing a practical “toolkit” to train and support judges in techniques of discovery cooperation, collaboration, and transparency. It is organized by common stages of discovery disputes from a judge’s perspective. Eighteen issue areas are listed, beginning with preservation and continuing through topics like choosing search methodology and ending with everyone’s least favorite issue, sanctions. Each topic area lists the Federal Rule that applies to any given topic, an explanation of the issue, and practical guidance for achieving successful resolution of disputes. Each section includes detailed guidance in the form of current case law and examples of orders from the bench.  

The Resources make the following recommendations:

  • Judges should adopt a “hands-on” approach to case management early in each action;
  • Judges should establish deadlines and keep parties to those guidelines (or make reasonable adjustments) with periodic status reports or conferences;
  • Judges should encourage the parties to meet before discovery commences to develop a realistic discovery plan;
  • Judges should encourage proportionality in preservation demands and expectations and in discovery requests and responses;
  • Judges should exercise their discretion to limit or condition disproportionate discovery and shift disproportionate costs;
  • If necessary, judges should exercise their authority to issue sanctions under the relevant statutes, rules, or the exercise of inherent authority on counsel or parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by “gaming the system”.

The Sedona Conference has acknowledged that cooperation is contrary to the adversarial instincts lawyers have been taught, and that it will require a generational shift for the nature of litigation to change. But there is perhaps no better way to encourage lawyers to cooperate than to create and active and informed judiciary on eDiscovery issues.

To submit a public comment, you can download a public comment form here, complete it and fax (yes, fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Can guidance like this help prevent intractable discovery disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?
 

Email has historically been the most common form of requested electronically stored information (ESI), but that has changed, according to a survey performed by Symantec and reported in Law Technology News.

According to the article, Symantec’s survey, conducted this past June and July, included lawyers and technologists at 2,000 enterprises worldwide.  However, the article doesn’t indicate the total number of respondents or whether that’s the number of organizations receiving the survey or the number actually responding.

Regarding how frequently (percentage of situations requested) various types of ESI are requested during legal and regulatory processes, the survey yielded some surprising answers:

  • Files and Documents: 67 percent
  • Application and Database Records: 61 percent
  • Email: 58 percent
  • Microsoft SharePoint records: 51 percent
  • Messaging Formats (e.g., instant messaging, texts, and BlackBerry PIN messages): 44 percent
  • Social Media Data: 41 percent

Email requested in legal and regulatory processes just over half the time?  That’s more than surprising, that’s shocking!

Symantec’s survey also asked about implementation of a formal data retention policy, with 30 percent of responding companies indicating that they have discussed but have not implemented a policy and 14 percent indicating that they have no plans to implement a policy (44 percent total that have not implemented a policy).  Reasons for not doing so were as follows (respondents were allowed to pick multiple reasons):

  • No Need Identified: 41 percent
  • Cost: 38 percent
  • No Designated Employee (to implement the policy): 27 percent
  • Too Time Consuming: 26 percent
  • Lack of Expertise: 21 percent

Many of these companies may not feel compelled to implement a policy because they are not frequently in litigation nor are they in regulated industries.

So, what do you think?  Do the percentages above reflect your experience as to how frequently the different types of ESI are requested?  Does the email percentage seem significantly low?  In my experience, it does.  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Update: J-M Manufacturing Tries to Clawback Privileged Documents at Issue in McDermott Malpractice Case
 

One of the most talked about cases from an eDiscovery perspective this year is the case against McDermott Will & Emery for alleged malpractice in the disclosure of privileged documents.  McDermott’s former client, J-M Manufacturing, has contended that 3,900 privileged documents were erroneously produced as part of 250,000 J-M electronic records that were reviewed under McDermott’s supervision.  In late July, J-M filed an amended complaint to its case, naming Navigant Consulting, Stratify and Hudson Legal as third party vendors hired by McDermott to run documents through a filter to identify potential attorney-client privilege documents and perform review of those documents.

Now, J-M has filed a motion seeking clawback of 3,400 privileged documents it contends that McDermott wrongfully produced, claiming the US government and, then, their opponents in the case, received the documents erroneously from McDermott.

The malpractice case was filed in California Superior Court, but was successfully moved to federal court by McDermott.  Recently, Hobson Dungog Bernardino + Davis, representing J-M in this case, filed a motion to remand the case to state court.

J-M says the first production of privileged documents in the case, in response to federal subpoenas, occurred in 2007 and 2008.  Stratify was hired by McDermott to search 1.3 million electronic files to identify potentially responsive and privileged files.  J-M claims it took “various precautions to identify and segregate documents that were subject to attorney-client privilege.", but that McDermott turned over files to the government that were not properly screened for privilege. J-M retrieved those documents through an informal July 2007 “clawback” agreement with the government. Both parties agreed to “return, sequester or destroy any inadvertently produced privileged materials.”

According to the filing, J-M then turned over a second production to the government assuming that its McDermott and its vendor, Stratify, had properly conducted the privilege review as previously instructed.  However, on May 20, 2010 (two months after McDermott had been dismissed), attorneys for one of the relators (John Hendrix at Day Pitney), notified J-M that they held potentially privileged documents, J-M requested the return or destruction of the 3,400 privileged documents in June 2010, but was rebuffed by Day Pitney attorneys, who rejected the request saying J-M had waived privilege by not taking “reasonable steps to prevent disclosure” as specified in Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26.  J-M has contended that the production of privileged documents was inadvertent and not a waiver.

On February 18, 2011, almost a year after McDermott had been dismissed, J-M entered into a joint clawback agreement with all relators.  Ironically, in a June 3, 2011 email to Day Pitney attorneys, Sheppard Mullin noted an additional production in 2011 by them of 500 allegedly privileged documents as Stratify (still being used as the vendor in this case) “mistakenly released approximately 9,650 ESI files without first presenting them for attorney review”.  As these documents may fall under the February 2011 clawback agreement, the plaintiffs have expressed willingness to destroy these documents.

As Sheppard Mullin has been disqualified in federal court due to conflict of interest, J-M has hired yet a third mega-firm in the False Claims case, Paul Hastings.  The False Claims Act case is still awaiting trial, so it may be difficult for J-M at this point to show how the disclosure of privileged documents has caused it damages.

So, what do you think? Should J-M Manufacturing be able to clawback its privileged documents?  Is it too early to assess malpractice against McDermott? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Law: Texas Rule 196.4 Protects Parties from "Undue Burden or Cost"
 

A recent article published in Texas Lawyer and reprinted on Law.com raises the question of extensive and costly eDiscovery requests and how to handle them. The authors of Keep E-Discovery Costs from Torpedoing Litigation Budgets present a hypothetical scenario where the opposing counsel has requested production of 10 years of legacy electronic data – a prospect that could cost more in recovery expenses than the value of the entire lawsuit. What is the best approach for counsel to take under the circumstances and what kind of legal recourse is there if producing extensive amounts of electronic information doesn't make sense?

Meet Texas Rule 196.4

The answer – in the state of Texas, at least – is found in Texas Rule of Civil Procedure 196.4. Like Federal Rule of Civil Procedure 26(b)(2), Rule 196.4 states that parties must comply with "reasonable" production requests, but are not forced to produce electronic information for discovery if it cannot be retrieved "through reasonable efforts."  So, when it comes to unduly burdensome discovery requests, don’t mess with Texas!

Rule 196.4 also includes a provision that makes it possible to shift the cost of extensive discovery production to the requesting party. However, an attorney's ability to make a case for challenging a production request or shifting the cost of such production depends on thorough knowledge of the client's information systems. It's paramount to know the details of the client's data storage, backup systems, old and new equipment in order to make an objection on grounds of either Texas or Federal law.

Rule 196.4 Still Being Clarified

Courts are still ruling on how and when this rule applies, so it remains a useful recourse but not a foolproof procedure for issues surrounding extensive (and expensive) production. Therefore, courts have used Federal Rule 26(b)(2) and federal case law to help apply an understanding of what’s reasonably accessible.  In In Re Weekley Homes, LP (2009), the Texas Supreme Court addressed when a trial court may order production of information that is not reasonably available, but instructed trial courts to consider "the reasonable availability of information on a case-by-case basis" which leaves the implementation of these rules open-ended for the moment.

The Texas Lawyer article references other important cases, including the landmark Zubulake v. UBS Warburg LLC (2003) opinion (Zubulake I) which famously adopted a classification system of five categories of media on which electronic data is commonly stored, from most accessible to least, as follows:

  1. Active, online data, such as hard drives;
  2. Near-line data, such as an older robotic storage devices like optical disks;
  3. Offline storage/archives, such as removable media that can be labeled and stored on a shelf like CDs and floppy disks;
  4. Backup tapes, which are sequential access devices not intended for recovery of individual files; and
  5. Erased, fragmented or damaged data.

Understanding these five categories of media and their accessibility is a must for anyone to be prepared to respond to discovery requests, especially like the one posed hypothetically at the beginning of the article.

So, what do you think? Have you ever been hit with a production request with a scope that would have raised eDiscovery costs beyond the value of the suit itself? If so, what did you do? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Changes in Store for The Sedona Conference
 

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), a Arizona-based non-profit, non-partisan law and policy think tank that has made numerous contributions to the industry since it was founded in 1997.  Some of the most recent contributions have been documented in this blog, including a commentary on proportionality released last year and database principles released earlier this year.

A couple of weeks ago, TSC announced that its Board of Directors “has adopted a new collaborative management structure designed to align the organization’s administration with its historical mission of dialogue and consensus building” and said that founder and former executive director Richard Braman is now its full-time chairman.  There will now be four Director-level positions, as follows:

  • Business Operations: Dustin McKissen is the new director of business operations, and previously was deputy CEO of the National Association for Information Destruction,
  • Conferences and Content: Howard Bergman joins as director of conferences and content, but will continue serving as counsel in residence at the University of Minnesota Law School,
  • Judicial Outreach: John Rabieg, previously appointed as executive director on Jan. 31, will move to become director of judicial outreach,
  • Judicial Education: Kenneth Withers, a member of Sedona since 2006 as director of judicial education and content, will narrow his focus to just the education component.

These four Director-level positions will now manage the affairs of TSC in a collaborative manner, reporting to an Executive Committee of the Board of Directors.  They will be formally announced at a Sept. 24 dinner in Washington, D.C.

As noted on their press release of August 29: “’The Sedona Conference’s success, right from the very start, has been based on creating intellectually stimulating and thought-provoking dialogue and content through collaboration by judges, lawyers, experts and academics,’ said Craig Weinlein, a member of The Sedona Conference® Board of Directors and a partner at Carrington Coleman Sloman & Blumenthal in Dallas. ‘Because of our growth in staff, activities, and influence, now are the right time to bring that dialogue-based, consensus building process to our business operations, in order to best maintain the quality of The Sedona Conference’s unique and highly successful efforts.’”

TSC now has nine Working Groups and presents ten to twelve conferences each year, focusing on “tipping point” issues in the areas of complex litigation, antitrust and intellectual property rights.  It will be interesting to see what impact the new management structure will have on the activities of the group.

So, what do you think?  Do you think this is a good move for TSC?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: To Get the Latest Trends, Go Virtual
 

Many of you have likely attended at least one LegalTech trade show at some point.  LegalTech New York (LTNY) happens every year in the late January/early February time frame and there is also a LegalTech West Coast (LTWC) show later in the year (this year it was in mid-May).  LTNY and LTWC usually have several good sessions, as well as the latest product and service offerings from exhibitors.  But, what if you can’t make it to one of these shows?

For those who can’t travel, but still wish to stay up to date on the latest trends, American Lawyer Media (ALM) has begun offering Virtual LegalTech (VLT) sessions quarterly.  This is the second full year that these sessions have been available and the sessions for this quarter are being held tomorrow (many of which are CLE eligible, at least in certain jurisdictions).  These online sessions are free to attend – you simply have to provide information to obtain a login ID and password.

VLT is set up just like an actual trade show.  There’s a “campus” with two exhibit halls, a CLE Center auditorium, a lounge and a resource room.  Copies of slides for presentations are usually available a short time after the presentation is conducted in the resource room.  You can even check out vendor “booths” in the virtual exhibit halls!

For tomorrow’s “show”, there are several sessions related to eDiscovery concepts, including:

9:00 am – 10:00 am ET:

Recover Costs, Improve Profits & Reduce Risk: Cost Recovery for eDiscovery Content

Description: Law firms, like all businesses, are constantly looking for ways to reduce costs and improve profits. Traditional cost recovery focuses on tracking, managing and assigning costs associated with activities such as scanning, faxing, printing, and e-mailing. To make documents eDiscoverable at point of capture, documents should be tagged with metadata such as filename, matter, client and billing code information; easing the burden on staff and lawyers, so more time can be spent strategizing the case and less time at the device handling administrative tasks. This session will explore various practices for integrating eDiscovery into traditional cost recovery tactics. Industry experts will also discuss tips and tricks to help profits soar while also reducing risk of data loss.

Speakers are: Chris Wyszkowski – Nuance Communications; Thomas Goldman, JD – Author of Technology in the Law Office, Second Edition

11:00 am – 12:00 pm ET:

Attack of the Clouds: Virtual Privacy & Online Security

Description: Look at cloud computing through the lens of eDiscovery and its easy to become confused as to whether the cloud is a great equalizer; allowing firms of all sizes to spend less time and money on the mechanics of eDiscovery, or the refuge of the naïve for whom its only a matter of time until their miracle solution falls flat. The cloud offers great cost savings and convenience to law practitioners, but there are very real concerns about cloud privacy and security.

Our expert panel will share a unique legal and technical perspective on privacy and security in the cloud, looking at case law regarding the liability of cloud providers and how it impacts the health of the cloud industry. This informative discussion will span legal and cybersecurity issues with the cloud, giving you a clear view of the risks and rewards involved with this exciting new technology.

Speakers are: Caitlyn Murphy, Esq. – Senior Product Manager, AccessData Group; Joshua Gilliland – Attorney and Author of the Bow Tie Law Blog; Jeffrey Dye – CISSP, Network Defense and Digital Forensics, General Dynamics

12:00 pm – 1:00 pm ET:

Unbundling Litigation: Selecting and Using E-Discovery Counsel

Description: There was a time when corporations expected litigation counsel to handle all aspects of litigation, including discovery.  However, as e-discovery becomes more complex and mistakes are increasingly common, there is a trend toward unbundling litigation and selecting a separate e-discovery counsel.  E-discovery counsel is often a separate law firm that specializes in e-discovery issues and can do the work better, faster and cheaper than general litigation lawyers.  This panel will discuss the pros and cons of using e-discovery counsel in complex litigation.  We will also discuss best practices for selecting and integrating e-discovery counsel into the litigation process.

Speakers are: Chris Dale – Moderator and Author of the eDisclosure Information Project (UK); Darryl Shetterly – Partner, LeClair Ryan, LLC; William Belt – Partner and Team Leader, Discovery Solutions Practice, LeClair Ryan LLC; Heather Bryden – Assistant General Counsel. e-Discovery Manager, Capitol One Bank

2:00 pm – 3:00 pm ET:

Information Security – A Systematic Approach to Protecting Your Organization’s Data During the eDiscovery Process

Description: Information security is a high priority concern for both corporations and law firms in the eDiscovery process. The challenge is translating this concern into practice. Failing to take special care to ensure security can expose your company or client’s most critical information and breaches the ethical standards of  client-lawyer confidentiality. A centrally managed, systematic approach based upon a formal management system is the best way to ensure the highest level of information security.

In this session, we will offer an overview of approaches that will allow lawyers to ethically meet their  professional obligations related to information security best practices, standards and processes, such as:

  • Why a process driven approach to information security is needed?
  • Who should be responsible for information security in the eDiscovery process?
  • What are the hallmarks of good information security?
  • How to evaluate information security practices in your eDiscovery partner or vendor?

Speakers are: Doug Stewart – EnCE, Director of Technology, Daegis; Andy Teichholz, Esq. – Senior eDiscovery Consultant, Daegis; Mark Michels – Former eDiscovery and Litigation Counsel, Cisco; Aaron Crews – eDiscovery Counsel, Littler Mendelson

3:00 pm – 4:00 pm ET:

Judge's Panel: Leveraging Technology to Reduce the Challenges of Discovery

Description: What are the most important facts that will allow you to leverage the technology created to assist attorneys with litigation and discovery? This group of distinguished judges will spotlight decisive concerns, Federal Rules of Civil Procedure reform and what can be done to alleviate the responsibility and obligation that is essential to compliant discovery practice. The most technologically advanced methods to effectively approach the planning and managing of litigation preparation to meet key requirements will be discussed. This session is a “must attend” for those interested is lessening the burden of discovery.

Speakers are: Hon. Frank Maas – Magistrate Judge, Southern District of New York; Hon. Patty Shwartz – Magistrate Judge, District of Newark, NJ and Adjunct Professor of Law, Fordham University Law School; Hon. Ron Hedges – Former Magistrate Judge

4:00 pm – 5:00 pm ET:

Cross-Border Discovery and Investigations – Developing a Strategic Response Plan

Description: Companies operating in the global economy face increasing scrutiny from regulators in the US and Europe, with enhanced risk of related cross-border litigation and discovery. Join Howard Sklar, Senior Counsel of Recommind and Denise Backhouse, Associate, eData Practice, Morgan Lewis, as they address the data management issues in developing a strategic, cost-effective plan for responding to international discovery and investigations:

  • Data protection issues in European/US investigations and discovery:  the legal framework and recent developments
  • Preparing for investigations and discovery: creating a response plan; establishing a team; effective communication and privilege protection
  • Best practices for handling data in international matters

Speakers are: Denise E. Backhouse – Associate, eData Practice Morgan Lewis; Howard Sklar – Senior Counsel Recommind, Inc.

To “attend” any of these sessions or learn more about Virtual Legal Tech, go to Virtual Legal Tech Show.

So, what do you think?  Do you attend virtual seminars?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Social Media Lessons Learned Through Football
 

The NFL Football season begins tonight with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season.

An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

Last year’s NFL rushing leader, Arian Foster, recently “tweeted” a picture of the MRI image showing his injured hamstring to all of his followers on Twitter. The “tweet” provided an explanation of where his hamstring was specifically damaged.

The problem is that NFL teams guard specific injury information regarding their players as if they were trade secrets and in a sport where sidelining your opponents’ best players is a competitive advantage, telling those opponents where your injury is located is not a wise move (what was he thinking?).  Also, there are strict guidelines within the NFL regarding the disclosure of injury information because (big surprise!) it can impact betting on the games.

Foster, who subsequently “tweeted” that he was just joking around, provided yet the latest reminder that former congressman Anthony Weiner and many others have provided before: think before you hit send.

But, as bad as the consequences can be to individuals who post content on social media sites unwisely, it can be just as bad (or worse) for organizations that employ those individuals.

Postings on social media sites by employees can range from simply embarrassing for an organization from a public relations standpoint to downright damaging to the organization in the form of disclosure of confidential information.  The risk is clear.  Yet, in the socially technological world in which we live today, it is impractical for organizations to “ban” use of social media sites by their employees.  It’s going to happen and companies have to be prepared to address it.

The best way to address it is to implement a sound social governance policy that provides guidelines for acceptable and unacceptable behavior on social media sites and the consequences for the unacceptable behavior.  Implementation includes education with training examples that clarify any ambiguities.  This blog post from last year illustrates factors to address in a good social governance policy.  Hopefully, someone from the Texans is explaining these concepts to Arian Foster.

So, what do you think? Does your organization have a social governance policy?  Does it train employees on the use of that policy? Please share any comments you might have or if you'd like to know more about a particular topic.