The State of Play in 2012

Issues, Trends and Decisions in eDiscovery

Kelly H. Twigger, Esq. 5th Annual Electronic Discovery Conference

November 14, 2012

Kelly Twigger Principal

ESI Attorneys

Former partner, Quarles & Brady LLP Guest lecturer, Marquette University Law School

Milwaukee Business Journal: Forty Under 40 Class of 2010

Kentucky basketball fanatic Official Host Kentucky Derby

First Computer: IBM AS2 First Blog Post: December 2007

First Tweet: August 2009

DISCUSSION TOPICS

• Local and global events shaped by ESI

• New State Rules and potential changes to Federal Rules of Civil Procedure

• Changes to Wisconsin rules

• Case law trends and practical impact

• Questions

ESI Shaping Local and Global Events

Director of CIA falls from grace at the hand of his paramour and, you guessed it, ESI.

Milwaukee Journal Sentinel, October 16, 2012

Corporate Counsel on Law.com June 1, 2012

Federal Government is aware of and encouraging policy and consideration of issues in ESI.

Presidential memo outlines need to meet “legal requirements related to the preservation of information relevant to litigation.”

New State Rules and Proposed Federal Rule

Changes

Florida adopted new rules effective July 5, 2012

Colorado considering pilot project

Map courtesy of Tom Allman

PROPOSED CHANGES TO RULES|FRCVP • Amendments considered following corporate

backlash of expense of preservation and lack of knowledge of how to avoid sanctions

• Proposed changes now require “bad faith” showing for sanctions under Rule 37 vs. original idea of providing more definition to Rule 26

• Timeline for effective date is likely 2015

New Rules in Wisconsin

NEW RULES|WISCONSIN • Creation of Wis. Stat. 804.01(7) – clawback

provision modeled on FRCP 26(b)(5); references committee notes from FRCP for meaning

• New evidence rule tracks FRE 502

Case Law Trends and Practical Impact

TRENDS|

• Continued onslaught of decisions as jurisdictions develop own body of law; more than 150+ decisions in 2012 across the country

• Full list of decisions to be posted on ESI Attorneys blog

• Social media is key – party seeking info must demonstrate relevance and seek appropriate scope

• Use of predictive coding being ordered in large matters; cooperation is key

• Very little published case law in Wisconsin

KEY DECISIONS| EEOC v. SIMPLY STORAGE

Judge granted access to social media from Facebook where plaintiffs alleged emotional distress in sexual harassment action, but limited it specifically to the facts of this case.

. . . The Court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants . . . that reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state. EEOC v. Simply Storage Mgmt. LLC, 270 FRD 430 (S.D. Ind. 2010)

KEY DECISIONS| KLEEN PRODUCTS

Price fixing class action with discovery before Magistrate Judge Nan Nolan in which parties filed numerous discovery disputes, failed to cooperate and could not agree on technology to be used for case.

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their cli- ents’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict. Kleen Products vs. Packaging Corporation of America, (N.D. Ill. Sept. 28, 2012) (citing Sedona Conference Principles)

WI DECISIONS| U.S. v. NCR CORP

Judge Griesbach denied a motion to compel brought against the US DOJ based on undue burden and where defendants did not explain why ESI was needed.

Although ostensibly a reasonable request, the Defendants do not explain what more and further discovery could possibly provide on liability. . . The defendants vaguely argue that the governments will be using such data in their case-in-chief, but nowhere do they suggest that the governments will be using data that was kept secret or hidden from discovery. United States v. NCR Corp., 2012 WL 4955304 (Oct. 17, 2012, E.D. Wis.).

WHAT’S HAPPENING IN WISCONSIN |FEDERAL CT

The Seventh Circuit Electronic Discovery Pilot Program

C.J. Clevert, J. Conley, J. Crabb, J. Randa, J. Stadtmueller, M.J. Callahan, M.J. Crocker, M.J. Goodstein, and M.J.

Gorence all participating

WHAT’S HAPPENING IN WISCONSIN|FEDERAL CT

1.02 – Cooperation

1.03 – Discovery Proportionality

2.01 – Duty to Meet and Confer on Discovery

2.02 – E-Discovery Liaison(s)

2.03 – Preservation Requests and Orders

2.04 – Scope of Preservation

2.05 – Production Format

3.01 – Judicial Expectations of Counsel

3.02 – Duty of Continuing Education

7th Circuit Pilot Project Principles

Expectations being incorporated into orders

IMPACT| OBLIGATIONS OF COUNSEL • Lawyers can no longer assume that a request for all

documents will mean that the opposing atty understands what is out there and should be produced; requests must be specific

• Counsel need to have understanding of IT systems and actual costs to collect and produce data to argue undue burden and know true purpose behind request to overcome the argument

• Need to educate clients on the challenges of ESI before litigation arises, so that clients are prepared

• Evaluate and identify best tools for handling ESI commiserate with value of matter

IMPACT| PRACTICAL CONSIDERATIONS

• Failure to understand, follow or take obligations seriously can have severe ramifications for a case and a career

• Work directly with client to identify the most cost effective strategy for a matter, then work to agree with the other side

Questions?

Kelly H. Twigger, Esq.

p: 414.375.2015 f: 414.375.2016

ktwigger@esiattorneys.com http://esiattorneys.com

@kellytwigger

Kelly Twigger