Lawyer competency in the age of e-discovery

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Lawyer Competency in
the Age of eDiscovery

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Speakers
Hon. Patrick Walsh
U.S. Magistrate Judge
Central District of CA
Philip Favro
Senior Discovery Counsel
Recommind, Inc.
Craig Ball
Attorney & Forensic
Technologist
Craig D. Ball P.C.

Agenda
1
2
3
4
5
The Need for Technological Competence in eDiscovery
The Law in 2014 on the Preservation and Production of ESI
Safeguarding Client Confidences, Attorney Work Product, and the
Lawyer-Client Privilege
Affirmative Duties of Counsel in eDiscovery
Resources / Q & A

The Need for Technological
Competence in eDiscovery

The eDiscovery Competency Landscape in 2014
“The landscape of litigation has forever
changed, and there is no going back to
a paper-centric world. Too many
lawyers are like farriers after the advent
of the automobile, grossly--even
stubbornly--unprepared to deal with
electronic evidence.”
Craig Ball, Ten Things that Trouble Judges about e-Discovery, EDDE J., Autumn 2010, at 2

20th-Century Methods Won’t Satisfy 21st-Century Challenges
“The biggest problem I see with
electronic discovery is that lawyers are
using 20th-century technology—that is,
obtaining all of the documents,
organizing them in folders, and trying to
read and digest them—to address 21st-century
production.”
Patrick Walsh, Rethinking Civil Litigation in Federal District Court, 40 Litig. 6, 7 (2013)

eDiscovery Competency Requires Lawyers to Understand
Technology and to Consider Alternative Methods
“Practitioners need to embrace
21st-century technology and trust
that it will provide them with the
best chance of obtaining the most
critical information at the lowest
cost.”
Patrick Walsh, Rethinking Civil Litigation in Federal District Court, 40 Litig. 6, 7 (2013).
See also MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. 8 (2013)

The Law in 2014 on the
Preservation and Production
of ESI

The Current Law on Preservation and Production in Discovery
• The duty to preserve “includes an obligation
to identify, locate, and maintain, information
that is relevant to specific, predictable, and
identifiable litigation.”
• “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party’s claim or defense . . . subject to the
limitations imposed by Rule 26(b)(2)(C).”
FED. R. CIV. P. 26(b)(1); Apple v. Samsung, 881 F. Supp. 2d 1132, 1136-37 (N.D. Cal. 2012)

What Potentially Relevant Information Must Be Preserved & Produced?
• Mobile Device Data
• Cloud Stored ESI
• Social Network Materials
• Email
• Unstructured Data
• Legacy Data
• Database ESI
• Paper Documents
• Backup Tapes

Preservation & Production of Relevant Mobile Device Data
“Every one of the custodians were asked
the explicit question do they use these
devices for personal use — for work-related
use, and they disavowed it, some
multiple times. . . . several high priority
custodians [later confirmed though] that
they used their personal mobile devices
for work-related purposes.”
Small v. University Medical Center of Southern Nevada., Case No. 2:13-cv-00298-
APG-PAL, *25 (D. Nev. Aug. 18, 2014)

Preservation & Production of Relevant Cloud Stored Data
“Tellermate knew from the outset that its
termination of the Browns was premised on
their allegedly inadequate sales performance,
making the performance of other sales
managers or representatives crucial evidence
in the case . . . . it should have been obvious
from the outset that failing to preserve the
integrity of [the salesforce.com] information
would threaten the fairness of the judicial
proceedings.”
Brown v. Tellermate Holdings Ltd., Case No. 2:11-cv-1122 (S.D. Ohio July 1, 2014)

Regardless of Data Type, Overly Broad Requests are Improper
“Plaintiffs argue they are entitled to
inspect and image the cell phones of the
individual defendants under the broad
scope of discovery . . . the Court finds that
the request as framed is overly broad and
too intrusive for this stage of discovery.”
Bakhit v. Safety Markings, Inc., No. 3:13-CV-1049 (JCH) (D. Conn., June 23, 2014)

What Search Methodologies are Acceptable in Discovery?
Manual review, keywords, visualization, concept
search, data clustering, predictive coding, etc. may be
employed so long as productions made with these
methodologies satisfy the discovery touchstones of:
• Relevance
• Proportionality
• Reasonableness
Fed. R. Civ. P. 26(b)(1); 26(b)(2)(3); 26(g)(1); Victor Stanley, Inc. v. Creative
Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

Safeguarding Client
Confidences, Attorney
Work Product, and the
Lawyer-Client Privilege

Preserving Client Confidences and Secrets
It is the duty of an attorney to . . .
maintain inviolate the confidence,
and at every peril to himself or
herself to preserve the secrets, of
his or her client.
Cal Bus & Prof Code § 6068(e)(1)

Preventing Unauthorized Disclosures
(c) A lawyer shall make
reasonable efforts to
prevent the inadvertent or
unauthorized disclosure of,
or unauthorized access to,
information relating to the
representation of a client.
When transmitting a
communication that includes
information relating to the
representation of a client, the
lawyer must take reasonable
precautions to prevent the
information from coming into
the hands of unintended
recipients.
MODEL RULES OF PROF’L CONDUCT R. 1.6 MODEL RULES OF PROF’L CONDUCT R. 1.6, cmt. 19

No Obligation to Disclose Non-Responsive Documents
“The Steering Committee wants the
whole seed set Biomet used for the
algorithm's initial training. That
request reaches well beyond the
scope of any permissible discovery
by seeking irrelevant or privileged
documents used to tell the
algorithm what not to find.”
In re Biomet M2a Magnum Hip Implant Products Liability Litig. (Biomet II),
No. 3:12-MD-2391, (N.D. Ind. Apr. 18, 2013)

The Attorney Work Product Doctrine
• “Ordinarily, a party may not discover
documents and tangible things that are
prepared in anticipation of litigation or for
trial by or for another party or its
representative.”
• “[Courts] must protect against disclosure
of the mental impressions, conclusions,
opinions, or legal theories of a party's
attorney or other representative
concerning the litigation.”
FED. R. CIV. P. 26(b)(3)

Seed Sets and other Document Compilations May Reflect a
Lawyer’s Conclusions, Opinions, & Legal Theories
“In cases that involve reams of documents and
extensive document discovery, the selection and
compilation of documents is often more crucial
than legal research. . . . We believe [counsel’s]
selective review of [her clients’] numerous
documents was based on her professional
judgment of the issues and defenses involved in
this case.”
Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986)

Basic Elements of the Lawyer-Client Privilege
• A confidential communication
• Between the client and the lawyer
• Made for the purpose of obtaining
a legal opinion or advice

Text and Social Media Messages Generally Lack Confidentiality
• Text and social media messages –
including ostensibly private messages –
may be accessed and monitored by third
parties under the governing terms of
service
• “[I]f you have an idea or information that
you would like to keep confidential . . . do
not post it to any LinkedIn Group, into
your Network Updates, or elsewhere on
LinkedIn.”
Inviting Scrutiny: How Technologies
are Eroding the Attorney-Client
Privilege, 20 Rich. J.L. & Tech. 2 (2014)

Cloud Providers May Lack Confidentiality
• Providers of cloud computing services often have
access and monitoring rights to a company’s cloud
hosted data
• Those rights may extend to third party companies
that analyze customer data to help improve the
provider’s level of service
• Memorialized in service level agreements, those
rights may very well destroy the confidentiality
required to keep counsel’s discussions privileged
Inviting Scrutiny: How Technologies are Eroding the Attorney-Client Privilege, 20 Rich.
J.L. & Tech. 2 (2014)

Affirmative Duties of
Counsel in eDiscovery

Affirmative Duties of Counsel in eDiscovery
1. In-house counsel should gauge retained
counsel’s eDiscovery competency on legal
issues, technology, process, and strategy
2. Retained counsel should ensure that it has
access to and understanding of the client’s
information retention policies and practices
3. Retained counsel should confirm that the
client has an effective litigation hold process
and take steps to remedy any deficiencies

Resources

Resources
Hon. Patrick J. Walsh,
Rethinking Civil Litigation in Federal District Court,
40 LITIG. 6, 7 (2013)
Craig D. Ball,
Ten Things that Trouble Judges about e-Discovery,
EDDE J., Autumn 2010, at 2

Resources
The Security Nat’l Bank of Sioux City, Iowa v. Abbott
Laboratories, No. C 11-4017-MWB (W.D. Iowa July 28, 2014).

Resources
Guidelines Regarding the Use of Predictive
Coding
http://www.ctrlinitiative.com/home/resources/
Model Stipulation and Order re Use of
Predictive Coding
http://www.ctrlinitiative.com/home/resources/

RESOURCES
http://www.recommind.com/mind-over-matters

Q & A
Recommind Proprietary & Confidential 33

Recommind Proprietary & Confidential 34
Thank you!!
Judge Patrick J. Walsh
United States District Court
Central District of California
Craig Ball
Craig D. Ball, P.C.
(512) 514-0182
craig@ball.net
@CraigBall
Philip J. Favro
Recommind, Inc.
(650) 714-9134
phil.favro@recommind.com
@philipfavro

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