Overview: Wisconsin’s New eDiscovery Rules

Prof. Jay Grenig, Marquette University

Matt Stippich, Esq., Digital Intelligence, Inc.

Kelly Twigger, Esq., ESI Attorneys, LLC

AgendaHistory of the new rules

Considerations in making and responding to ESI requests

Scheduling and discovery conference issues

Preservation and production issues

Special masters

802.10(3)(jm) – Scheduling OrderThe scheduling order may address. . . .(jm) the

need for discovery of electronically stored information.

Early attention to eDiscovery issues

Reference to 805.06 (referees/special master)

804.01(4m) – Discovery Conference

Discovery conference

At any time after commencement of an action, on the court’s own motion or the motion of a party, the court may order the parties to confer by appropriate means, including in person, regarding any of the following, except with the discovery of electronically stored information, where the parties must confer unless excused by the court.

804.01(4m) – Discovery Conference

To be discussed:TimingPreservationForm of productionPrivilege/clawbackCost/limitationsAppointment of Referee (805.06) or Expert

(907.06)

804.08(3) – Business RecordsOption to produce or allow access to business

records in response to an interrogatory

Burden of deriving the answer from the information must be substantially the same for either party

See FRCP 33(d)

804.09(1) and (2)Includes production of “electronically stored

information”

Requesting party may specify “form” of production of ESI

If no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”

Responding party may object to form of production

Form of ProductionNative

Paper

TIFF, PDF

Automated Litigation Support (Summation, Relativity, etc.)

Metadata issues

804.12(4m)“Safe Harbor” – be careful

Applies to information lost as a result of “routine operation” of an information

Loss must be in good faith

Intervention may be necessary after duty to preserve arises

805.07(2)Subpoena

Parallel to FRCP 45(a) and (d)

65% of costs

Translating GB to $$

ESI measured in quantity of info, not pages8 bits = 1 byte1,024 bytes = 1 kilobyte (KB) 1,024 KB = 1 megabyte (MB) 1,024 MB = 1 gigabyte (GB) (75,000 pages)1,024 GB = 1 terabyte (TB) (250 billion pages)1,024 TB = 1 petabyte (PB)

Paper vs. ESI

*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 350 documents per hour

Cost of Review = Number of Review Hours

XHourly Rate

Average Review Rates:

Using Concordance/Summation – 40-60 docs/hourUsing online review platform with advanced features – 100-150 docs/hourUsing concept clustering tools – 300 docs/hour

70% faster review rates with concept clustering, near de-duplication and email thread grouping

ESI Review Costs

Examples: Cost for 2GB Review (31,562 documents*)Using Summation/Concordance

*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 50 documents per hour ^Assumes review rate of 110 documents per hour“Assumes review rate of 300 documents per hour

631 hours ** X $200 = $126,200

Using web-based review platform 287 hours ^ X $200 = $57,400

Using concept analytics, near de-duplication and email thread grouping

105 hours” X $200 = $21,000

ESI Review Costs

Examples:Cost for 57.7GB Review (911,140 documents*)Using Summation/Concordance

*Based on median value of 15,791 for files per GB provided by EDRM benchmark at http://www.edrm.net**Assumes review rate of 50 documents per hour ^Assumes review rate of 110 documents per hour“Assumes review rate of 300 documents per hour

22,778 hours ** X $200 = $4,555,703

Using web-based review platform 8283 hours ^ X $200 = $1,656,618

Using concept analytics, near de-duplication and email thread grouping

3037” X $200 = $607,426

ESI Review Costs

Questions