eDiscovery & Litigation Management Solutions

Daniel Gold

Twitter: @LexisGold

Growth in Data

2

Benefits of “The Cloud”

1

E-discovery Cases

3

Growth in Data

2 1

E-discovery Cases

3

Benefits of “The Cloud”

eDiscovery cases on the rise

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011

Sanction filings on the rise

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011 Over 50% increase in 1 year!

Sanction awards on the rise

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011

1989

Judge Wayne E. Alley

” “ If there is a hell to which

disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.

Kreuger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip. op. (W .D. Okla. Feb. 24, 1989).

Plaintiff’s attorney “simply did not understand the technical depths to which electronic discovery can sometimes go.”

Chief Judge Arthur J. Gonzalez GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A&M Fla. Props. II, LLC), 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y. Apr. 7, 2010)

How many times can a litigant ignore his discovery obligations before his misconduct catches up with him … the record shows that [Plaintiff] failed to comply with a document request and two court orders compelling production of materials within the party’s control.

Judge Neil Gorsuch Lee v. Max International, LLC, 2:09-CV-0175-DB, US

Court of Appeals, 10th Circuit (May 3, 2011)

Plaintiff has evidenced a pattern of inexcusable disregard for the authority of this Court … and the larger civil discovery process and warrants imposition of substantial ameliorative and punitive sanctions.

Judge Mary S. Scriven  Bray & Gillespie Mgmt., LLC v. Lexington

Ins. Co., 2010 U.S. Dist. LEXIS 400 (M.D. Fla. Jan. 5, 2010)

There still is no doubt in this Court's mind that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and Qualcomm employees.

Judge Barbara L. Major Qualcomm Inc. v. Broadcom Corp.,

2010 U.S. Dist. LEXIS 33889 (S.D. Cal. Apr. 2, 2010)

“Those who cannot remember the past are condemned to repeat it … the duty to preserve means what it says and that a failure to preserve records … will inevitably result in the spoliation of evidence.”

Judge Shira Scheindlin Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 462 (S.D.N.Y. 2010)

The defendant’s “acts of spoliation be treated as contempt of this court, and that as a sanction ... he be imprisoned for a period not to exceed two years”

Judge Paul Grimm Victor Stanley, Inc. v. Creative Pipe, Inc.,

2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)

Judge Paul Grimm Victor Stanley, Inc. v. Creative Pipe, Inc.,

2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)

To impose sanctions for spoliation in the 4th circuit, there must be: 1) bad faith 2) willfulness, 3) gross negligence, or 4) ordinary negligence

Rule 37(b)(2)

Thanks  to  Ralph  Losey  on  the  inspira2on  on  the  graphic!  

The defendant willfully violated … [had] blatant disregard for the Court's Discovery Order … [and showed a] lack of appreciation of the discovery process in general.

Judge T. John Ward Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)

The defendant had to provide a copy of this Order to every Plaintiff in every case it had against it going back two years or pay $500k as a fine if it did not within 30 days. For the next 5 years, it has to attach a copy of this Order with its first pleading or filing on every new lawsuit, no matter in what capacity they are involved.

Judge T. John Ward Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)

Lawyers, Clients & Judges “have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge…

“…It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect … [and] it is an exercise in economy and logic.”

The essence of the proportionality principle is that the legal system ought not to make e-discovery so burdensome that people with meritorious claims are deprived of their ability to win.

Source: The Metropolitan Corporate Counsel, April 2010

Richard A. (Doc) Schneider Partner, E-discovery Practice Group King & Spalding

Ultimately, our challenge is to achieve a proportional result, so that we don't spend $500,000 on electronic discovery in a case that's worth $1 million.

Browning Marean III Senior Counsel at DLA Piper

The idea is to take the 100 gigabytes of data you just collected … process and review only what is potentially relevant. You can wind up saving hundreds of thousands of dollars in a case.

Kelly F. Farmer Manager of Data Governance and Discovery Services

Growth in Data

2

E-discovery Cases

3 1

Benefits of “The Cloud”

What’s a gigabyte?

256 kb!

1.4 MB!

100 MB!

1 GB!

75,000 Number physical pages that equal 1GB of data

350,000 Number of physical pages that make up 1 DVD of data

35  1 Terabyte

Cornell Law Library!

36  137 Terabytes

Library of Congress!

17 Million Books!

1,024 TB equals 1 Petabyte

Want to see what a petabyte looks like?

16GB iPad!

2,717 feet tall!!

Burj Dubai Tower!

2,604 feet tall!!

62,500 fully loaded 16GB iPads!

Source: http://wikibon.org/blog/wp-content/uploads/2010/08/cloud-storage-v2.html

equals 1 Exabyte 1,048,576 TB

equals 1 Zettabyte 1,073,741,824 TB

1,099,511,627,776 TB equals 1 Yottabyte

The bad news?

It won’t get better.

The growth of “Big Data” (massive amounts of unstructured data that are not traditionally stored in a Relational form in enterprise databases) in the next 5 years, says Gartner.

800%

IDC (International Data Corporation) estimates that by 2020, transactions on the Internet will reach 450 billion per day!

Client data is doubling every 3 years

Enterprise-generated content will exceed 240 Exabytes!

Court and Regulatory-Imposed ESI

Court Imposed Responsibility to Monitor Client’s ESI

Sanctions for Failure to Disclose

Capability of In-House IT Systems & Administrative Costs

Recovering IT Costs in Compliance with Ethical Rules

Increased Regulatory & Litigation Workload

Federal and State Rules and Case Law

Gartner Research Study 2011

by 2013 $1.5B

E-Discovery spend to hit

Average Outside Counsel Total Litigation Costs

Source: Lawyers for Civil Justice et al., Statement on Litigation Cost Survey of Major Companies (May 2010)

$66M increase

in 8 years

Source: Fulbright's 7th Annual Litigation Trends Survey Report 

over last year 12%

E-Discovery spend increased

Increased demand for AFA’s since 2008

400%

Volume Relevancy

Analysis  

Processing  

Document  Review  

Presenta2on  Produc2on  Informa2on  Management   Iden2fica2on  

Preserva2on  

Collec2on  

Growth in Data

2 1

E-discovery Cases

3

Benefits of “The Cloud”

54  

What is the cloud?

55  

Electric Grid

3 flavors

SaaS PaaS

IaaS (Infrastructure-as-a-Service)

(Platform-as-a-Service)

(Software-as-a-Service)

61  

Gartner Highlights Key Predictions for IT Organizations & Users in 2010 and Beyond

By 2012, 20 percent of businesses will own no IT assets.

By 2014, over 3 billion of the world's population will be able to transact electronically via mobile or Internet technology.

By 2013, mobile phones will overtake PCs as the most common Web access device worldwide.

http://www.gartner.com/it/page.jsp?id=1278413

What about law firms?

64  

Increase your firm's capacity

Why use it for your firm?

Decrease data management costs

Reduce your risk

Increased productivity

Managed Solutions# On-Demand Storage# Online Review# Dedicated Field Engineers# Disaster Recovery# World-Class Data Centers# Personalized Customer Service#

What do you look for?

Ethical Considerations Professional Ethics Committee of the Florida Bar Op. 10-2 (2011)

Pennsylvania Bar Association Ethics Opinion No. 2010-060 (2010)

North Carolina Bar 2011 Formal Ethics Opinion 6 (2011)

Iowa Committee on Practice Ethics and Guidelines Ethics Opinion 11-01 (2011)

New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010)

“a law firm may contract with a vendor of software as a service provided the lawyer uses reasonable care to safeguard confidential client information.”

Ethical Considerations

Most lawyers are already dependent upon some form of SaaS whether it’s voice mail or email or Lexis research trails.

Lawyers must also engage in periodic education about ever-changing security risks presented by the internet ... [and] if you don’t understand the technology and/or are not willing to keep updated as it develops, you will need to retain someone who will handle that for your firm.

http://virtuallawpractice.org/2012/02/nc-cloud-computing-opinion-published/

“As the technology and products improve, cloud-computing platforms will become a more palatable alternative for large and small firms alike.”

So now what?

4-fold solution to handling eDiscovery

Ralph Losey Partner & e-Discovery Team Lead Jackson Lewis

1. Lawyers, technology, firm management = eDiscovery Team

2.  Education and training 3. Cooperation and transparency 4. Metrics and new technology

Questions to ask:

What few things must absolutely go right in order for you to have protocol in place for handling eDiscovery?

What is your budget?

What is the volume of documents?

What kind of data do you have?

What is your timeframe?

Questions to ask:

Can this really be done in-house?

Do you have an eDiscovery process?

Do you have the people & resources needed to be successful?

Is there firm-wide buy-in process that is needed?

Questions to ask:

Is a hosted solution or an in-house software solution makes sense?

What kind of training, rollout and implementation can you get?

If you chose in-house, could you demo the software before buying?

How long before everyone is up and running on the software?

Questions to ask:

LexisNexis E-Discovery Solutions Gain greater control over e-discovery with flexible, integrated software and hosting options.

lexisnexis.com/ediscovery-solutions

discoveryservices@lexisnexis.com

Daniel Gold

Twitter: @LexisGold