Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

On July 16-17, 2012, Executive Counsel Institute conducted a cutting edge meeting in New York titled, “E-Discovery for the Corporate Market.” The theme of the two day meeting was “Controlling Your E-Discovery Destiny.” The Colloquium Moderators, Brown E. Marean III  from DLA Piper, David Kessler from Fulbright & Jaworski, and Paul Weiner from Littler Mendleson did an excellent job of keeping all of the participants actively engaged.

The panelists included: Steven C. Bennet, a partner at Jones Day; Richard Cohen, President of RenewData in Austin, Texas; Eric T. Crespolini, Vice President of eDiscovery Technologies; Andrea L. D’Ambra, Counsel at Drinker Biddle & Reath LLP; Eugene “Gene” Eames, Director of Search and Data Analytics at Pfizer;  Lynn Frances, Principal at E-Discovery Writer; Bill Gallivan, CEO of Digital WarRoom in Seattle; Daniel P. Kulakofsky, Managing Counsel and Director of Electronic Discovery at The Travelers Companies; Jason Lichter, Senior Counsel of eDiscovery and Information Governance at Seyfarth Shaw; Stephen J. Lief, Practice Support Counsel at Epstein Becker & Green and all-round high tech guru; Mary Mack, Enterprise Technology Counsel at ZyLAB; Maryrose E. Maness, Senior Vice President and Chief Employment and Corporate Infrastructure Counsel at Warner Music Group; Lynn Mestel, President of Hire Counsel in New York City; Tom O’Connor, Director Gulf Coast Legal Technology Center in New Orleans; Andrew J. Peck, United States magistrate judge in the U.S. District Court for the Southern District of New York; Farrah Pepper, Executive Counsel of Discovery at General Electric; Mary Pat Poteet, Senior Consultant at Project Leadership Associates in Chicago; John A. Schwab at Gordon Alfano Bosick & Raspanti; Debra C. Swartz, Chief Compliance Officer for AmerisourceBergen Corporation in Philadelphia; John Thacher, Director of Managed Review Services at TechLaw Solutions in New York City; Brian T. Wolfinger, Vice President of Technology at LDiscovery in Philadelphia; and  the eponymous Laura A. Zubulake, author and speaker on Information Governance.

I attended the meeting because, as a trial lawyer, I was troubled that I did not even know what I didn’t know about e-discovery. Having attended the meeting, I can report that I now know what I don’t know and there is a lot I now know I don't know.  What I did learn, however, is that there remains a great deal of uncertainty throughout the e-discovery realm, and that technological advances are emerging almost constantly. I was somewhat comforted that even some of the technological gurus at the meeting, who are partners at major law firms, often have difficulty “selling” technologically advanced e-discovery solutions to their more conservative trial partners.

Judge Peck discussed whether manual document review and keyword searches will be replaced by computer-assisted coding, sometimes referred to as “predictive coding.” In an important recent opinion, discussed in an earlier blog post, Judge Peck provided a judicial imprimatur for the use of predictive coding in federal district court litigation but it has by no means been adopted broadly. Predictive coding may offer a new template for conducting e-discovery just as computerized research using Lexis transformed the manner in which lawyers perform legal research in the mid-1970’s.  Just as stodgy older lawyers then urged their  associates to stay away from that "computer box" and perform their legal research manually--with books--the time-tested traditional way, their counterparts today are leery of embracing emerging new e-discovery technology.

There was much discussion concerning data security, social media and The Cloud. There was frank discussion concerning ethical and contractual tensions that can arise between in-house counsel, outside counsel and e-discovery vendors. Discussions centered on factual and legal scenarios that had been encountered by attendees and panel members.  All of this made for a very worthwhile meeting.

In In toxic tort cases where plaintiffs have questionable liability claims, serving burdensome e-discovery demands on defendants often threatens to change the focus of the case from the merits of the claim to a spoliation of evidence sideshow that focuses on the efforts of the defendant to preserve and produce electronically stored information ("ESI"). To avoid traps for the unwary (potentially both corporate defendants and the law firms that represent them), this blog will occasionally provide e-discovery guidance and reference information.  The Electronic Discovery Reference Model  or ERDM is one such authoritative reference. The ERDM is an industry group that establishes practical standards and guidelines for ESI, including its identification, collection, processing, review, analysis, storage and production. The ERDM also provides helpful information on the  triggering events, which may give rise to a duty to preserve or disclose email, documents or other data in conjunction with a pending or future legal proceeding. (According to ERDM,  It is the point at which the party or the law firm may become liable to meet certain standards, the violation of which can result in any number of  unfavorable outcomes depending upon the forum).  Ensuring that both you, as counsel, and your client, have a firm understanding of how these triggering events work is an important first step in approaching ESI issues in litigation.  EDRM's trigger discussion expands upon some of the following concepts: (1) The duty to preserve and disclose data may be triggered by a judicial order, a discovery request, or mere knowledge of a pending or future proceeding likely to require data; (2) The scope of data to be preserved or disclosed is determined by the subject matter of the dispute and the law and procedural rules that a court or other authority will ultimately apply to resolve it. In general, data is potentially discoverable if it is relevant to the disputed transaction or may lead to relevant data; and (3) Failure to preserve or disclose discoverable data may result in serious penalties. To minimize this risk, diligent steps must be taken to identify all potentially discoverable data in the client's possession or control.

The Manual For State Trial Courts Regarding Electronic Discovery Cost-Allocation, authored by the Joint E-Discovery Subcommittee of the Association of the Bar of the City of New York, is required reading for any New York state court litigator involved in e-discovery.  The Manual is intended to assist New York State judges and court personnel in managing issues relating to the cost of discovery of electronically stored information, or "ESI'.  As  state court decisions on e-discovery cost allocation are likely to reference the Manual, practitioners are well-advised to familiarize themselves with the Manual now.  The authors cite one study that found that between 58% and 90% of litigation budgets are devoured by document review.  The issue of who pays for  e-discovery--the requesting party or the responding party--often involves sums of money above and beyond the damages sought by the claimant.  As a result, litigation costs drive cases to settle that should not settle on the merits.  Although New York law mandates that the requesting party pay the costs of discovery, there is authority in New York law for requesting parties to seek protective orders aimed at shifting all or part of the ESI costs to the producing party.

Of interest to practitioners outside New York, the Manual provides an overview of ESI burden and expense, and cost-shifting rules, adopted in states across the country.  This discussion, as well as a review of federal case law, suggests that New York is not "going it alone" but is drawing on the principles developed at the Sedona Conference and in leading cases such as Zubulake, which provides a seven-factor balancing test for determining cost allocation.

If you litigate in federal courts and have not yet reviewed the Sedona Conference Cooperation Proclamation, wake up!  The final exam is about to start and you have slept through your alarm!  Although not as revolutionary as Thomas Paine's Common Sense, the Cooperation Proclamation is premised upon the heretical (to some) proposition that "Cooperation In Discovery is Consistent with Zealous Advocacy" and makes a sharp distinction between advocacy (good!) and adversarial conduct (self-defeating when it comes to e-discovery).  Significantly, a number of federal judges have "signed on" to the Cooperation Proclamation and their published discovery decisions provide the wise practitioner with a road map for navigating through the shark-infested waters of  e-discovery.  On March 19, 2009, SDNY Magistrate Judge Andrew J. Peck issued what he characterized as a "wake-up call to the Bar in this District about the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce emails or other electronically stored information ("ESI")." William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company, 07 Civ. 10639 (LAK) (AJP).  In his well-crafted decision, Magistrate Peck derides lawyers, who design "keyword searches in the dark, by the seat of the pants" without even bothering to consult with their clients beforehand.  The danger for practitioners in not "getting it right" the first time is running the risk that the Court may issue an e-discovery order that is more costly and burdensome to your client than might have otherwise been the case.  Some very good articles have been written by practitioners concerning how to anticipate meeting the concerns of a Cooperation Proclamation jurist during your initial client meetings in preparation for the Rule 26(f)(3) ESI meet and confer.  One such article is "The Collaborative Model of E-Discovery" written by J. Mark Coulson at Miles and Stockbridge PC in Baltimore in Product Liability Law 360 on March 11, 2009 (Law 360 requires a subscription)  Mr. Coulson provides  practical advice such as being aware before offering to search your client's hard drive for documents that each gigabyte on a hard drive may contain 30,000 to 50,000 documents.  The "take-away" from most of the good  e-discovery articles is for the practitioner to be proactive and to address ESI issues with both the client and opposing counsel early in the meet and confer process.  Strong client advocacy in the ESI realm requires not hiding the ball about relevant witnesses, e-mail system and retention schedules.