Exploring Hot E-Discovery Trends in 2012 Mark Sidoti, Gibbons P.C. Kamal Gad-El-Hak, Kroll Ontrack...

Exploring Hot E-Discovery Trends in 2012

Mark Sidoti, Gibbons P.C.

Kamal Gad-El-Hak, Kroll Ontrack

February 22, 2012

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Slide Materials

To download a complimentary copy of today’s materials, please follow these instructions:

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Mark S. Sidoti, Esq., Director, Gibbons P.C. Chair, Gibbons E-Discovery Task Force, an

interdisciplinary group which provides counseling, training and litigation-related assistance to companies on the full range of information management and e-discovery matters

Frequent publisher and lecturer on best practices in the field of e-discovery

Chair, Defense Research Institute’s Electronic Discovery Committee

Member of the Sedona Conference Working Groups 1 and 6, Electronic Discovery Reference Model (“EDRM”) and numerous E-Discovery Advisory Boards

Counsel for the plaintiff in the Treppel v. Biovail case, which resulted in several reported decisions that have been recognized as among the most important e-discovery opinions to date

Recognized among New York’s leading lawyers New York Super Lawyers, and AV Preeminent peer review rated by Martindale-Hubbell


Kamal Gad-El-Hak, Kroll Ontrack

Solutions Architect, Kroll Ontrack

15 years of experience in the legal industry working for law firms and service providers

Designs custom electronic discovery solutions for complex matters and offers consultation on how to effectively create, implement, and manage corporate information policies and litigation support processes throughout their lifecycle

Brings unique insight into how various litigation support and information management systems can be designed to ensure defensible processes


Discussion Overview

E-Discovery Innovations in 2011

Hottest Predicted E-Discovery Trends in 2012» FRCP Rules

» Computer-assisted review

» Proportionality

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Case Law 2011 Overview

In 2011, Kroll Ontrack analyzed approximately 100 critical e-discovery opinions

43%

14%13%

12%

11%3% 2%1% Sanctions

Procedural Issues

Production

Privilege

Cost

Preservation and Spo-liation

Discoverability

Computer Forensics



Examining past trends provides an essential map for counsel navigating the turbulent rapids of e-discovery» Three core trends emerged:

1 Social Media in E-Discovery

2 Cost Shifting and Taxation of Costs

3 E-Discovery in Criminal Cases


Social Media in E-Discovery 2011

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Courts, experts, litigators and commentators grappled with the intricacies of social media discovery head-on» Courts attempted to tailor a functional discovery regime to social

media like they have done with e-mail, documents, and other predecessors

» Increasing amount of social media discovery cases observed in 2011 underscores a core principle of discovery: – Discovery is primarily about obtaining information relevant to a dispute—

not the means by which it is communicated


Limits on Discoverability of Social Media

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Romano Steelcase, Inc. (2010) McMillen v. Speedway, Inc. (2010)

Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (C.P. Northumberland May 19, 2011)• Generally, an individual who voluntarily posts pictures and

information on social websites does so with the intention of sharing, and thus cannot later claim any expectation of privacy

• The court pointed to the privacy policies of Facebook and MySpace—both of which clearly state that any information posted may become publicly available at the user’s own risk

• Holding: Even private portions of a social media profile are discoverable


Social media is far from inert» Courts must find a way to place removed, relevant images into the

hands of the requesting party

» Typically, the court orders the responding party to preserve all information and give the pertinent passwords and usernames to the requesting party– E.g. Zimmerman v. Weis Markets

» In 2011 we saw courts take alternate approaches– In Katiroll Co., Inc. v. Kati Roll and Platters, Inc., the court ordered an

individual defendant to re-post a profile picture depicting an infringing trade dress and instructed the plaintiff to print any posts it felt were relevant

Methods of Producing Social Media

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Cost Shifting and Taxation of Costs

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Cost Shifting Taxation of Costs

Framework Fed.R.Civ.P 26(b)(2)(C) 28 U.S.C.§1920

Scope • Accessible information is presumptively discoverable

• If a responding party can show that the requested information is inaccessible because of undue burden or cost, the burden shifts to the requesting party to show “good cause.”

• Prevailing party can make an argument to recoup costs

• Covers “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

When Argue as early as possible Argue after a party has prevailed

Goal Alleviating the responding party from paying for production


Cost Shifting and Taxation in 2011

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Cases have suggested several steps to take in order to carve out a successful cost shifting claim» Make claims early (as in, before negotiations control), cooperate

with the opposing party and be mindful of costs

In terms of taxation, courts in 2011 further familiarized themselves with the 2008 amendments to §1920» Notably, in 2008, the provision was changed from copies of paper, to

copies of “any materials”

» In 2011, courts experimented with just how much room for discretion the language “making copies” provides in the e-discovery context– for example, does this cover vendor costs? If so, which ones?


E-Discovery in Criminal Cases 2011

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United States v. Briggs, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011)» The court applied Fed. R. Civ. P. 34(b) as authority when it ordered

the government to reproduce call data from wiretaps in searchable native or PDF format

» The court noted at length the need for a permanent analogue in the rules of criminal procedure

» The court expressed a hope that the Advisory Committee on Criminal Rules will address

Marks the first time the Federal Rules of Civil Procedure were leveraged in a criminal case


Hottest Predicted E-Discovery Trends in 2012


Hottest E-Discovery Trends in 2012

Innovative technological and legal advancements gained in 2011 have set the stage for a fascinating year-to-come in e-discovery

The forecast for e-discovery in 2012:

1 Federal Rule Change Buzz Will Continue

2 Technology Assisted Review Will Blast-Off

3 Courts Will Continue to Focus on Proportionality


Federal Rule Change Buzz Will Continue

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FRCP amendment dialogue on preservation and sanction issues has gained momentum in 2011

Discussions started in 2010 at the Civil Litigation Conference at Duke University» Discourse gained force at the Dallas Mini-Conference in 2011

– Discovery Subcommittee of the Advisory Committee made calls for comment in September 2011

In 2012, there likely won’t be any finality on the issue one way or the other


Impediments to a Quick Solution

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There are several obstacles to a timely decision:» Multi-tiered process to change the federal rules

– Supreme Court and Congress need to weigh-in

» Clear consensus has yet to emerge

» No simple opt-in or opt-out solution

Parties will still have an open microphone in 2012 to persuade their peers to join or abandon the rule-change bandwagon


Legal professionals should learn the ins and outs of the preservation and sanctions case law existing today» If the rule change wraps up early, counsel will:

– Know exactly what any given new rule addresses

– Know how to alter their existing methodologies

» If the rule change momentum falls flat, litigants will know the application and case law cold

Take advantage of the resources available via federal judiciary’s coverage

– (http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview/DallasMiniConfSept2011.aspx)

Best Practices for the Rule-Change Limbo

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http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview/DallasMiniConfSept2011.aspx




Technology Assisted Review Will Blast-Off

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Many organizations experimented with technology assisted review in 2011» Objective: integrate the technology into their tried and true review

protocols

Data volumes are growing while resources are dwindling

Whether its traditional, keyword, or intelligent review» Concern is whether a particular method of review will catch an

adequate number of responsive documents without casting its net too wide

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Addressing defensibility:» Defensibility was a core concern for those considering implementing

Technology Assisted Review

Discussions and articles in 2011 have attacked this traditional concern» Implementation of any review should hinge on the nature of a case

» “Search, Forward: Time for Computer-Assisted Coding”– In October 2011, Law Technology News published United States

Magistrate Judge Andrew Peck’s article; in his article, Judge Peck:

• Questions why lawyers are waiting to use technology assisted review until they receive judicial endorsement;

• Addresses the problems inherent in keyword searching and manual review; and

• Encourages counsel to rely on his article in lieu of a formal opinion.

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Da Silva Moore v. Publicis Groupe et al. » Class action litigation

» In a February 8, 2012 hearing, Judge Peck ordered parties to adopt a protocol including the use of predictive coding.

» This would mark the first federal case to adopt the use of smart-review.

» The parties are dredging through a data universe of 3 million documents and plan to essentially teach the computer what’s relevant and what isn’t—potentially saving an exorbitant amount of money in review.

» More to come as this case continues to develop…

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Proportionality Framework

Proportionality Under the Federal Rules of Civil Procedure

Applicable Provisions

• The Federal Rules should be construed to secure the “just, speedy, and inexpensive determination of every action and proceeding”—FRCP 1

• “On motion or on its own, the court must limit” discovery where “the burden or expense of the proposed discovery outweighs its likely benefit” considering, among other things, the needs of the case and the amount in controversy—FRCP 26(b)(2)(C)(iii)

Lingering Concerns

How does the analysis apply in the preservation stage?

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“It smacks of chutzpah to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by

providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation” - Judge McMahon

Proportionality, Meet Cooperation

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Pippins v. KPMG LLP, No. 11 Civ. 377 (S.D.N.Y. February 3, 2012) • Procedural Posture: KPMG appealed an October 2011 magistrate decision

ordering KPMG to preserve all hard drives of potential plaintiffs• KPMG estimated the preservation cost of the hard drives at $1,500,000• Initially, parties were unable to agree on a sampling methodology to cut

down preservation costs• Plaintiffs sought to informally review five random hard drives to gain an

understanding of the information at hand; however, “KPMG… insisted it could not produce even one hard drive for inspection by plaintiffs”

• KPMG nonetheless sought a protective order and argued that the cost of preserving of every hard drive was disproportionate to the likely benefit

• Holding: Affirmed—without knowing the potential benefit (i.e. the information on the hard drives), the court cannot possibly engage in a cost/benefit proportionality determination

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The Impact of Pippins

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Clarifies that proportionality applies even in the context of preservation» “Proportionality is necessarily a factor in determining a party’s

preservation obligations”

» The court cites The Sedona Conference Commentary on Proportionality in Electronic Discovery (2010)

Exemplifies the strong ties between preservation, proportionality and cooperation» Even though a FRCP 26(b)(2)(C) proportionality argument is

available, failure to cooperate can thwart any chance of success

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Parting Thoughts


Parting Thoughts

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Lessons from 2011» Consider social media when assessing discovery obligations

– Include social media as a source of information on discovery checklists

– Address the many ethical considerations triggered when dealing with social media

» Consider taxation and cost-shifting claims early– Taxation: Control costs and cooperate

– Cost-shifting: Consider future arguments upfront—they can impact technology strategy throughout the phases of discovery

Above all in 2012, continue to gain proficiency of applicable technology solutions and evolving case law in order to reduce costs and conduct discovery defensibly


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Gibbons

Gibbons P.C.’s E-Discovery blog: E-Discovery Law Alert» www.ediscoverylawalert.com

Gibbons E-Discovery Task Force

» Mark S. Sidoti, Esq., Chair

» 212-613-2007

» [email protected]

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Slide Materials

To download a complimentary copy of today’s materials, please follow these instructions:

1. Go to krollontrack.com/events

2. Click on the “Course Materials” tab

3. Select today’s presentation, “Exploring Hot E-Discovery Trends in 2012”

4. Enter “February” as the “User ID and “Webinar022212” as the “Password”

Exploring Hot E-Discovery Trends in 2012 Mark Sidoti, Gibbons P.C. Kamal Gad-El-Hak, Kroll Ontrack...

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