Luxembourg Coc E Discovery Presentation
- 1. 1SOBEL & FELLER LLP | www.sobelfeller.comBeware What Lurks:Key Points About Electronic Discovery in U.S. LitigationJonathan M. SobelOctober 18, 2011SOBEL & FELLERLLP 444 Madison Ave., 17th FloorNew York, NY 10022(212) 308-0600www.sobelfeller.com
- 2. Electronically Stored Information (ESI) make up most all of a companys communications and data C perhaps 95%Relevant and responsive ESI must be produced in litigation if it exists and is reasonably accessibleESI must be preserved once litigation is anticipatedStrict guidelines for complianceSanctions for noncomplianceExpensive and burdensome to address in litigationNeed to think about before litigation happensrecords management program2Why Do We Care About This?SOBEL & FELLER LLP | www.sobelfeller.com
- 3. Computers and file servers C organize and segregateRemovable media C e.g., thumb drivesSmart phones / PDAs Home laptops/computersEmail (the biggie) / Metadata / Deleted Files!Voice mailIntranets / Internet informationInstant messenger communicationsLegacy data (old accounting or email systems)Backup systems Start with the active data and preserve the relevant backups once litigation is anticipatedReasonable accessibility vs. need to restore or manipulate to use3Sources of ESI C More Than You Might ThinkSOBEL & FELLER LLP | www.sobelfeller.com
- 4. Once litigation is threatened or anticipated, obligation to preserve relevant ESI Identify key employees (Zubulake)Provide a preservation (litigation hold) letter to key employees, plus others who might be involvedNature of matter (parties, nature of claims)Scope: identify specific areas of ESI that need to be preservedInstructions to suspend manual and automatic deletion of emails and documentsSuspend recycling of relevant backup tapesCaution - Dont have employees self-select4Preservation of ESISOBEL & FELLER LLP | www.sobelfeller.com
- 5. In a word, Very.Every court will look for one.Follow up on preservation is mandatoryZubulake decisions (SNDY) (Judge Scheindlin)Attorneys must ensure that employees likely to relevant ESI have received and read the preservation letterMust communicate with each Efficiency C combine notification with start of collection processSend periodic follow-up reminders5How Important is Preservation (Legal Hold) Memo?SOBEL & FELLER LLP | www.sobelfeller.com
- 6. Adverse inference instructions to juryPreclusion of evidenceReversal of burdens of proofFines / penaltiesDismissal of claims or defensesNarrow exception: Safe Harbor if ESI is lost in good faith as a result of routine operation of information systemUpshot: Have a document retention procedure in place that is automated, but suspend it as appropriate to meet preservation obligations6Sanctions for Spoliation C Theyre Not Just for Bad Faith AnymoreSOBEL & FELLER LLP | www.sobelfeller.com
- 7. First, even if not sanctioned, being on the receiving end of a spoliation motion can undermine your credibility and be expensive to defend. Coleman Holdings v. Morgan Stanley (Florida Cir. Ct. 2005) C reversed burden of proof against Morgan Stanley in fraud case; Jury returned verdict for plaintiff of 1.5 billion dollars; Court awarded 15 million dollars in fines for failure to comply with discovery obligations.Zubulake v. USB Warburg (SDNY 2004) C adverse inference instruction (emails not produced would have negatively impacted case); defense counsel partly to blame for not locating and producing emails; $29 million damages awarded to plaintiff by jury.U.S. v. Philip Morris USA, Inc. (D.D.C. 2004) C Defendants ordered to pay costs related to spoliation of relevant e-mails in addition to $2.75 million in monetary sanctions. Key employees precluded from testifying.TR Investors v. Genger(Del. Ch. Dec. 2009) C Defendant was sanctioned for "wiping the unallocated space on his company's computer server despite a court order barring any disposal of company-related documents. The sanctions included a raised burden of proof for defendant on any defense or counterclaim, production of documents that defendant claimed were privileged, and payment of plaintiffs reasonable attorney fees and costs, which the court suggested should be $750,000. 7Spoliation ExamplesSOBEL & FELLER LLP | www.sobelfeller.com
- 8. Hire lawyers and e-discovery vendors who care about being cost-effectiveand understand the e-discovery review and production processSearch terms are key -- garbage in, garbage out Run each term and see if results look outof whackSample the search term hits, especially if lopsidedPrivileged documents C search for themClaw back provisions of the rules help (FCRP 26(b)(5))8 What Do You Do With All This Stuff?SOBEL & FELLER LLP | www.sobelfeller.com
- 9. Efficient and cost-effective reviewWhat do you really care about locating?Do you need a search tool/software to locate key documents?Can you combine the production review with case preparation and deposition prep review Tagging - topicsFlagging C levels of urgency9Review and ProductionSOBEL & FELLER LLP | www.sobelfeller.com
- 10. Be comprehensive, but be efficientCombine the document preservation process with the collection processCombine the document review process with the case preparation process (e.g., depositions, evidence marshalling) 10Name of the Game - EfficiencySOBEL & FELLER LLP | www.sobelfeller.com
- 11. First a word from Greg Cancilla of RVM11Questions and Comments? SOBEL & FELLER LLP | www.sobelfeller.com
- 12. Jonathan M. Sobeljmsobel@sobelfeller.com SOBEL & FELLER LLP | www.sobelfeller.com12