eDiscovery in 2013: What You Need to Know
As companies increasingly rely on discovery to manage their data, complex problems arise in data security from the threats of cyber-attack, social media, rogue employees and other external forces.
It’s time to consider changing your current strategy to minimize costs and to mitigate risks. Join this LIVE webcast to be in the know with respect to the very latest issues surrounding eDiscovery. In addition to laying out a most systematic eDiscovery and records management programs, the webcast faculty will also examine the most significant issues in the mix including:
- Technology-Assisted Review and “Predictive Coding”
- Rules and Ethics regarding key words searches in E-Discovery
- Identifying and Preserving ESI
- Data Breaches, Notification Duties and Legal Liability
- Cost -Sharing Ruling and Cost Recovery
- Drafting outsourcing agreements
- Up-to-the-minute regulatory updates and compliance
Tonya R. Deem, Partner,
Kilpatrick Townsend & Stockton LLP
- Identifying and Preserving ESI
-Identify, locate, and maintain evidence that:
- What is the Obligation?
- A party knows, or should know, is reasonably likely to be “relevant” to specific, predictable, and identifiable litigation
- May lead to the discovery of admissible evidence
- May be subject to a future discovery request
- When does the duty arise?
- -Easy cases:
-“Reasonable anticipation of litigation”
- When a complaint is served/filed
- When a government proceeding is initiated
- When a subpoena is received
- -Easy cases:
- What Evidence Must Be Preserved?
- Evidence that you reasonably believe to be relevant and discoverable
- Consider the nature of the issues in dispute, the accessibility of the information, the probative value of the information, and the relative burdens and cost of the preservation effort
- What is the Goal of Preservation?
- Mitigate risk
- Mitigate distractions
- The EDRM preservation flowchart
- Preservation Steps and Timeline:
- Engage the case team and the client
- Collectively develop a defined and intentional preservation strategy:
- Identify what type of information is likely to be relevant and discoverable
- Identify the potential data sources
- Determine reasonable accessibility
- Suspend Destruction
- Identify the client’s recycling programs/policies
- Evaluate what recycling needs to be suspended
- Prepare the Plan and Select the Preservation Method
- Several options and considerations
- Be aware of privilege issues
- Execute the Preservation Plan
- Litigation Hold notice—written vs. verbal?
- Effective hold notices:
- Clearly communicate the scope and need
- Are in an appropriate form for the audience
- Are specific
- Identify challenges to preservation
- Are reviewed and reissued
- Are monitored
- Are broadly disseminated
- Monitor the Preservation
- Both in-house and outside counsel have an obligation to take reasonable steps to monitor compliance with discovery obligations:
- Identifying the sources of potentially relevant information
- Preserving the information
- Collecting the information for production
- Counsel must become fully familiar with his client’s retention policies and IT architecture
- Collaborate with IT
- Coordinate with key custodians
- Counsel must take reasonable steps to ensure that the client is in fact retaining potentially relevant evidence
- What is the Obligation?
A. David Fawal, Partner
Butler, Snow, O’Mara, Stevens and Cannada, PLLC
ESI Preservation and Collection – Best Practices
- Federal requirements
- Managing Custodian Interview and Collection
- Recent examples of consequences for inadequate preservation
Caroline Walters, Attorney,
McKool Smith Hennigan
- Efficient collection of electronic evidence..
- Potential difficulties to the collection of electronic evidence arising from the Stored Communications Act.
Cass W. Christenson, Partner,
McKenna Long & Aldridge LLP
- Cooperation between counsel: new expectations and opportunities
- Demystifying proportionality and making it part of your e-discovery plan
- Incorporating cost-shifting principles into your e-discovery strategy
Patrick X. Fowler, Partner,
Snell & Wilmer LLP
- Competence (don’t conduct e-discovery if you have no idea what you are doing)
- Communications (Keeping the client reasonably informed about the status of the matter and its obligations)
- Diligence/expediting litigation (you need to act in a timely manner both in obtaining e-discovery and responding to e-discovery)
- Fairness to opposing party and counsel (do not obstruct access to or spoliate evidence; do not make frivolous requests/responses)
- Respecting the rights of others (avoiding overly broad, burdensome, harassing subpoenas or inappropriate collection methods of social media information)
Who Should Attend:
- eDiscovery Attorneys
- General Counsel
- Private companies
- Public companies
- Legal Officers
- In-house Lawyers
- Senior Management
- Chief Information Officers
- Computer Forensic Specialists
- E-discovery Lawyers
- Privacy & Data Management Officers
- Records & Information Directors/Managers
- Litigation officers
- Litigation Support Specialists
- Compliance, Risk and IT Managers
Tonya Deem is a litigator with trial, appellate and arbitration experience, representing both established companies and emerging companies in a broad range of disputes, including patent litigation, complex business disputes, securities litigation and multi-district litigation.
Ms. Deem has represented companies in patent infringement actions in Texas, Delaware, North Carolina, California, Georgia, and South Carolina and before the United States Court of Appeals for the Federal Circuit. She regularly represents companies in defending actions filed by entities which invest in patents but do not own them.
Ms. Deem has successfully litigated and arbitrated several complex construction disputes, including material defect and product liability matters in premature component failure disputes and delay and workmanship claims. She has also represented brokers and advisors in litigation arising out of a failed tax shelter strategy, including claims of fraudulent misrepresentation.
Tonya Deem is a litigator with trial, appellate and arbitration experience, representing both established companies and emerging companies in a …
A. David Fawal is in Butler Snow’s Commercial Litigation Group and located in the firm’s Birmingham office. AV-rated by Martindale-Hubbell, Fawal focuses on insurance defense/coverage, punitive damage claims, antitrust, civil RICO, product liability, class actions, arson, and eDiscovery.
Fawal presently serves on the Grievance Committee of the Birmingham Bar Association and the Military Law Committee of the Alabama State Bar. He is an active member of the Alabama Defense Lawyers Association and the Defense Research Institute. Fawal started his legal career on active duty in the U.S. Navy. He has continued his military service through the Reserves and is a Commander for the U. S. Navy Reserve Judge Advocate General’s Corps. Following his active duty, Fawal returned to Birmingham in 1995 and went into private practice focusing on civil litigation. A cum laude graduate of Birmingham-Southern College, Fawal received his B.S. in psychology. Fawal received his J.D. from the Cumberland School of Law where he was the Associate Managing Editor of the American Journal of Trial Advocacy and was a member of the Trial Advocacy Board.
A. David Fawal is in Butler Snow’s Commercial Litigation Group and located in the firm’s Birmingham office. AV-rated by Martindale-Hubbell, …
Caroline Walters is an attorney at the Los Angeles office of McKool Smith Hennigan. Her practice focuses on the defense and prosecution of contract dispute, breach of fiduciary duty actions, fraud actions and securities litigation. Ms. Walters has been recognized as a California “Rising Star” by Super Lawyers from 2010 through 2012. Ms. Walters has significant experience with e-discovery, having overseen and managed extensive large scale e-discovery collections, reviews and productions. She is the co-author of “Navigating e-discovery” published in The Computer & Internet Lawyer by Aspen Publishers in April 2012.
Caroline Walters is an attorney at the Los Angeles office of McKool Smith Hennigan. Her practice focuses on the defense …
Cass Christenson is a partner in the Washington office of McKenna Long & Aldridge LLP, and represents clients in state and federal courts throughout the country. He has handled a variety of e-discovery issues arising in intellectual property cases, insurance coverage cases, regulatory cases, and other complex commercial cases. Cass has trained attorneys regarding e-discovery practices and emerging issues, has developed litigation hold protocols, has drafted and implemented e-discovery plans, and has argued motions involving various aspects of electronic discovery. In addition, Cass has made presentations and authored articles concerning electronic discovery best practices and cost-control. Cass graduated from the Vanderbilt University School of Law, where he was elected to the Moot Court Board and was a member of the Vanderbilt Law Review. McKenna Long & Aldridge LLP is an international law firm with more than 575 attorneys and public policy advisors in 13 offices and 11 markets.
Cass Christenson is a partner in the Washington office of McKenna Long & Aldridge LLP, and represents clients in state …
Patrick Fowler is a partner in the Phoenix, Arizona office of Snell & Wilmer. Pat chairs his firm’s Electronic Discovery Committee, and is a regular speaker and writer on e-Discovery topics. For the past 25 years, his focus has been on complex litigation and trial work, primarily in defending companies facing product liability litigation involving catastrophic injury or property damage, along with commercial and intellectual property disputes. Pat’s practice is nationwide, as he has taken numerous state and federal court cases to trial from coast to coast. He also has managed and coordinated discovery and litigation on a national basis for several large clients.
Patrick Fowler is a partner in the Phoenix, Arizona office of Snell & Wilmer. Pat chairs his firm’s Electronic Discovery …
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About Kilpatrick Townsend & Stockton LLP
Kilpatrick Townsend attorneys are fully engaged in the success of the firm’s clients. We deliver results-oriented counsel for corporations at all stages of the growth cycle, from the challenging demands of financial transactions and securities to the disciplines of intellectual property management. A close collaboration between the firm’s practice areas ensures that we are well-positioned to serve all of our clients’ needs.
A fervent focus on client service is the foundation of our success. From hiring multinational, cross-industry and cross-practice area talent to instilling a commitment to client service in our firm’s philosophy and goals, we are able to continue our success as an international business law firm.
We serve clients around the world from our offices in California, Colorado, District of Columbia, Georgia, New York, North Carolina, Washington, Dubai, Shanghai, Stockholm, Taipei and Tokyo. We value our relationships and are committed to learning and furthering our clients’ business and legal goals.
We strive at every level to develop beneficial relationships built on trust and mutual respect. We partner with the senior executives and internal counsel of our corporate clients, integrating and sharing tasks as appropriate. We take pride in the fact that clients who hire us once typically hire us again. Our success is measured by the results we achieve on behalf of our clients, and we commit ourselves, without reservation, to the overriding objective of client satisfaction.
About Butler, Snow, O
Butler, Snow, O’Mara, Stevens & Cannada, PLLC, is a full-service law firm with nearly 250 attorneys representing local, regional, national and international clients from 13 offices in the South and Northeast. Ranked as one of America’s Top 100 law firms in the BTI Power Rankings, Butler Snow is recognized as one of the nation’s top law firms for client service. The firm was also named by BTI on the Short List of Go-To Law Firms and also rated as a Hidden Gem. For more information, visit www.butlersnow.com or follow Butler Snow on twitter @Butler_Snow.
About McKenna Long & Aldridge LLP
McKenna Long & Aldridge LLP (MLA) is an international law firm with more than 575 attorneys and public policy advisors in 13 offices and 11 markets. The firm is uniquely positioned at the intersection of law, business and government, representing clients in the areas of complex litigation, corporate law, energy, environment, finance, government contracts, health care, infrastructure, insurance, intellectual property, private client services, public policy, real estate, and technology. To further explore the firm and its services, go to mckennalong.com.
About Snell & Wilmer LLP
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 400 attorneys practicing in nine locations throughout the western United States and in Mexico, including Phoenix and Tucson, Arizona; Los Angeles and Orange County, California; Denver, Colorado; Las Vegas and Reno, Nevada; Salt Lake City, Utah; and Los Cabos, Mexico.
As a large, full-service firm, Snell & Wilmer provides the competitive advantage of having the ability to call upon the diverse experience of our attorneys to address the particular and evolving legal issues of any engagement. A team of attorneys and support staff can be easily assembled for large scale projects or emergency situations. To maximize these advantages, Snell & Wilmer attorneys are organized into practice groups. This gives clients easy accessibility to the unique skills and knowledge of each attorney.
For almost 75 years, Snell & Wilmer has been dedicated to providing superior client service. As a result, we have earned a reputation for providing our clients with what they value – exceptional legal skills, quick response and practical solutions delivered with the highest level of professional integrity. Snell & Wilmer’s attorneys and staff continue to be strongly committed to these objectives.