ediscovery basics slidesv2 · E-DISCOVERY CASES • Carrillo v. Schneider Logistics (C.D. Cal.) •...
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Transcript of ediscovery basics slidesv2 · E-DISCOVERY CASES • Carrillo v. Schneider Logistics (C.D. Cal.) •...
E-DISCOVERYBASICS AND ETHICS
C H A D M A I N , P E R C I P I E N T
J I M D O P P K E , R O B I N S O N L A W G R O U P
ETHICAL ISSUES IN E-DISCOVERY
• Rule 1.1 – Competence• Not just knowing about computers or metadata• Being able to implement knowledge on a client's
behalf to prevent mistakes or exposure
ETHICAL ISSUES IN E-DISCOVERY
• Rule 1.6 – Confidentiality of Information• “information relating to the representation of a
client”• Expanded from prior definition
ETHICAL ISSUES IN E-DISCOVERY
• Rule 3.3 – Candor Toward the Tribunal• What kind of information gathered from e-
discovery is being presented?• What if information produced in e-discovery turns
out to be something other than what was expected or initially represented?
• What if it contains false information?• Duty to take action kicks in when lawyer knows of
falsity of evidence or “comes to know” of it
ETHICAL ISSUES IN E-DISCOVERY
• Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants• Make reasonable efforts to ensure that the firm has
in effect measures giving reasonable assurance that the conduct of:• A non-lawyer employed by, retained by, or
associated with the lawyer• Is compatible with the professional obligations
of the lawyer
ETHICAL ISSUES IN E-DISCOVERY
• Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants• A lawyer having direct supervisory authority over
the non-lawyer shall make reasonable efforts• to ensure that the person's conduct is compatible
with the professional obligations of the lawyer
ETHICAL ISSUES IN E-DISCOVERY• Rule 5.3 – Responsibilities Regarding Non-Lawyer
Assistants• Shall be responsible for the conduct of such a person
that would be a violation of the RPCs if engaged in by a lawyer IF:
• Lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; OR
• Lawyer is a partner or has comparable managerial authority or has direct supervisory authority AND
• Knows of the conduct at a time when its consequences can be mitigated or avoided
• Fails to take reasonable remedial action
E-DISCOVERY CASES
• J-M Manufacturing v. McDermott, Will & Emery, et al. (CA)
• Filed in Los Angeles, removed to federal, then back to state
• McDermott represented in underlying qui tam False Claims Act case
• Supervised and outsourced large e-discovery project
E-DISCOVERY CASES
• J-M Manufacturing v. McDermott, Will & Emery, et al.• Problem: Insufficient attorney-client privilege filter• Thousands of privileged documents produced to
government• Successfully retrieved• But: wound up in hands of relators anyway (how?)• Produced again by successor law firm
E-DISCOVERY CASES
• Nat'l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency (S.D.N.Y.)
• Gov't defendant produced “static images” of spreadsheets, etc. (PDFs)
• No metadata included because “not asked for”• Court: “lame excuse”• Metadata/”load files” must also be produced in order
to make the production searchable and therefore reasonably usable
E-DISCOVERY CASES
• Carrillo v. Schneider Logistics (C.D. Cal.)• Failing to conduct a reasonably diligent search• Improperly withholding responsive documents• Failing to take adequate steps to ensure preservation
E-DISCOVERY CASES
• Carrillo v. Schneider Logistics (C.D. Cal.)• D's employees' deps: continuing to delete emails and
had never been instructed to preserve them• Repeatedly said diligent searches had been conducted
but “found” more materials• Court required defendant to retain a mutually agreed-
upon vendor to search & collect ESI• Defendant allowed to review documents for privilege
& confidentiality• BUT: no documents could be withheld on grounds of
relevance
RISK MANAGEMENT TIPS
Start the processOf determining the processEarly!
RISK MANAGEMENT TIPS
RISK MANAGEMENT TIPS
• Stay up on technology• And terminology• Sedona Conference
RISK MANAGEMENT TIPS
• Seek outside help
• Before it gets out of hand!
QUESTIONS?
Jim Doppke
Robinson Law Group, LLC
333 West Wacker Drive, Suite 450
Chicago, IL 60606
312.676.9878
Chad Main
Percipient, LLC
800.971.2291
