Just the Basics: An E-Discovery Primer for Paralegals and

Litigation Support

September 3, 2014

Royce F. Cohen

Michael QuartararoStroock & Stroock & Lavan LLP

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Presenters

Royce F. Cohenrcohen@stroock.com

As Special Counsel at Stroock & Stroock & Lavan LLP, based in New York, Royce is a founding member and co-chair of Stroock’s eDiscovery and Information Governance Practice Group. She is also a member of the Sedona Conference, Working Group 1. Royce has extensive experience representing both insurers and reinsurers in complex insurance and reinsurance matters. She has led some of the firm’s largest electronic discovery projects, from the collection of ESI, through processing, review and production. She frequently speaks and moderates panel discussions and CLE presentations on topics related to electronic discovery and her reinsurance practice.

Michael Quartararomquartararo@stroock.com

As Director of Litigation Support Services at Stroock & Stroock & Lavan LLP, Mike is responsible for the development and implementation of Firm policy relating to electronic discovery and the development of ediscovery best practices, project-oriented protocols, and the design and delivery of training programs. As a member the Firm’s eDiscovery and Information Governance Practice Group, Mike regularly consults with attorneys and clients on electronic discovery issues. Mike is a certified Project Management Professional, a Certified E-Discovery Specialist, and a member of the ACEDS Advisory Board. He is also a part-time graduate instructor of ediscovery and project management and an advisory board member at Bryan University.

Presentation Overview

• The Electronic Discovery Reference Model (EDRM)• Information Governance• Identification• Preservation• Collection• Processing• Review and Analysis• Production• Presentation

First, the Facts

Hypothetical Scenario: • Party A and Party B enter into a contract incepting 1/1/09• Pursuant to the Contract, payments are made by Party B quarterly• Party B has not made a payment since 1/1/13• Party A files a complaint on 4/1/14 alleging that Party B breached the contract

among other allegations• You represent Party B• Party B has two offices – one in San Francisco and the other in Denver. • Each office has their own file server on which local user files are created and stored

related to that office. There is one email server for the entire company in San Francisco. All employees use Windows-based PCs in the office, except salespeople, who also utilize laptops while traveling. Senior and middle management have Blackberry and smartphone mobile devices, and all email on those devices passes through the email server. Text and phone messages are not captured or retained. Backup tapes exist for the previous 12 months only.

The EDRM

Information GovernanceInformation Governance (IG) pertains to a client organization’s internal policies and practices related to records and information management, including how they create, store, secure and manage ESI and paper documents.

• IG is a client Responsibility• IG maximizes the value of information and minimizes risk• IG saves time and reduces cost• It’s not just records management• And it’s not just policies

Is your client prepared for litigation?

Identification

Identification is the process of identifying reasonably accessible sources of ESI and documents that may be relevant to litigation.• Confer with client and client IT personnel• Determining the scope of the project• Learn about the client systems (interviews, data map, questionnaire)• Identify people who may possess relevant information (Custodians)• Identify the relevant date range• Most common sources of ESI

– Email servers– File Servers– PCs and laptops

• Estimate the volume of potentially relevant ESI

Preservation

Preservation is the process of ensuring that ESI is protected against alteration, deletion or destruction.• The preservation process involves two steps:

1. Implement a litigation hold within the client organization

2. Sequester the ESI (either through collection or otherwise)

• The obligation to preserve ESI stems from the common law• The obligation is the clients and counsel• Document the process

Collection

Collection is the process of physically and defensibly gathering ESI and documents from identified sources within a client organization.• Factors to consider:

– Sources of ESI– Accessibility of data– Number of custodians– Size/volume of collection

• Collection tools and procedures• Acquisition report• Chain of custody documentation

Processing

Processing: involves the use of software to convert ESI to forms more suitable for review and analysis.

• Two goals in processing:– Reduce volume of ESI– Unify ESI for systematic review

• Extract and index metadata and text• De-NISTing, De-duplication and Search• Reporting and exceptions• Deliverable: Tiff images, native files, metadata and text

Review and Analysis

Document review and analysis is the process of reviewing and evaluating ESI and documents for content and context and then coding for responsiveness and privilege in preparation for production to other parties.• Goals• Define scope• Responsiveness Coding & Issue Coding• Confidentiality• General Rules• Use of Analytics/Predictive Coding• Quality Control

Production

• Production is the process of preparing and delivering ESI and documents to other parties in appropriate forms and using appropriate delivery mechanisms.

• Identify documents to produce• Prepare a written production specification• Form of production• Quality control

Presentation

• Presentation involves displaying ESI before people and audiences (at depositions, hearings, trials, etc.), to elicit further information, validate existing facts or positions, or persuade an audience.

• From one Million to one Hundred• Exhibit preparation• Using technology to present evidence

Questions