Forensic Update

Reflections on information management within the legal and regulatory arena

Archive for May, 2010

eDiscovery within Law School Curricula?

Posted by Johnny Lee on May 19, 2010

It appears that the University of Florida’s Levin College of Law will offer an online, three-credit course in Summer 2010 entitled Introduction to Electronic Discovery.  The course content and format is designed by noted eDiscovery pundit Ralph Losey, who collaborated with the faculty to achieve this milestone of legal education.  Per Losey’s e-Discovery Team blog,the course includes video lectures from top experts in this field as well as interactive student exercises, fora for professor-student interaction, and even an online mid-term oral exam.

Losey continues to demonstrate strong thought leadership in this space, and his entrepreneurial proclivities shine through in spades here as well.  He is marketing this to any law school in the country, provided a local attorney will step up and act as a professor for the student assistance required during the course delivery.  This is a great achievement, and it represents a recognition of the importance of this field to legal scholarship and practice.

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Are Data Collection Protocols part of your Discovery Requests?

Posted by Johnny Lee on May 13, 2010

Under the revised Federal Rules of Civil Procedure, a great deal of attention is paid to Electronically Stored Information (“ESI”).  That said, while the rules are quite specific on the production of ESI, a good bit of interpretation remains on the collection of same.  Specifically, Rule 26(b)(2)(B) and Rule 34 speak directly to production protocols, but the practical nature (and burden) of collection efforts are not contemplated by the Rules.

This begs the question of how (or whether) companies should proceed with collections that are ad hoc or “manual” in nature.  A recent National Law Journal article does a stellar job of sketching out the cautionaries in this space, especially in light of recent case lawspecifically, Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009).

The good news here—especially for budget-conscious companies weighing where to best spend their forensic dollars—is that so-called “manual” efforts were found to be defensible, provided certain minimum standards are met.  The Ford case is revealing for a number of reasons, and the NLJ article does an excellent job of distilling the salient points for both litigators and those who support them.  Click here for the full article.

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Forensic Update editor to present at 2010 IIA International Conference

Posted by Johnny Lee on May 2, 2010

2010 International IIA Conference Editor, Johnny lee, will present session [CS 4-12], entitled “Best Practices in Managing eDiscovery and Data Retention Risks.”  Below is the session write-up:

Electronic Discovery (“eDiscovery”) can be a time-consuming, burdensome, and costly undertaking for your company. Studies reveal that nearly 90% of U.S. corporations are engaged in lawsuits and that the average U.S. company faces 305 such suits at any given time. Corporate law departments are struggling to keep pace with the recent changes to the Federal Rules of Civil Procedure (“FRCP”) governing eDiscovery, increased regulatory compliance issues, and the sheer volume of data created in today’s digital environments. Despite these obstacles and the significant costs that result, studies indicate that almost 60% of organizations have no formal program in place to manage their legal discovery risks.

In this session, participants will learn how to:

  • Understand the eDiscovery Landscape.
  • Describe the Business, Litigation, and Compliance drivers for Data Retention.
  • Apply traditional maturity models and best practices to Data Retention concepts.
  • Understand state of the art for Data Management / Discovery technologies.
  • Articulate the crucial role of Internal Audit in Data Retention compliance.


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More data on Litigation Hold failures

Posted by Johnny Lee on May 2, 2010

The 2009 year-end study by law firm Gibson, Dunn & Crutcher LLP provides a very useful update on eDiscovery trends.  As with prior posts on ForensicUpdate, this study reveals that courts are both providing guidance and punishing those who fail to heed it.  The study also finds that judicial scrutiny on eDiscovery increases year over year, with 2009 bringing twice as many judicial opinions on eDiscovery issues than 2008.

Of these 2009 cases, a significant percentage of these cases had sanctions levied, driving home a point raised before in this blog: companies need to revisit and realign their information management policies and procedures to ensure that the do not run afoul of the unfolding standards in this dynamic area of the law.

Click here to read the full Gibson, Dunn & Crutcher LLP study.

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Courts expect affirmative steps during Litigation Holds…

Posted by Johnny Lee on May 2, 2010

…which can be costly if bungled. Simply put, a properly executed litigation hold is a written notice distributed to every individual likely to have discoverable information to preserve all potentially responsive information when litigation is pending, imminent, or reasonably foreseeable.

The 2008 Qualcomm Inc. v. Broadcom Corp. decision sent a shockwave across the e-Discovery world ($8.5M in monetary sanctions and six attorneys referred to the state bar’s disciplinary committee)…with the court finding that there was an “incredible” failure of communication. Of course, the facts of this case may seem particularly egregious to the casual observer. After all, in its analysis, the Court emphasized that the documents counsel failed to produce directly refuted a critical argument proffered by Qualcomm—both in pre-trial motions and throughout the trial. The Court also found that no attorney assumed supervisory responsibility for verifying that the necessary discovery had been conducted AND that this failure jeopardized counsel’s ability to determine that there was a factual basis for the legal arguments advanced in the case.

The case law unfolding ever since re-emphasizes that counsel must take affirmative steps “to monitor compliance so that all sources of discoverable information are identified and searched” as well as preserved (q.v., Swofford v. Eslinger). This harkens directly back to the Qualcomm case, where the Court weighed the following in its sanctions decision:

  • the sheer volume of documents that Qualcomm failed to share with opposing counsel;
  • the relative ease with which Qualcomm ultimately found the suppressed documents;
  • the failure to search the computers used by key players in the case;
  • inadequate research to investigate the nature of Qualcomm’s information storage, including basic concepts (e.g., email storage, how often company desktops and laptops were backed up, what measure of structured data existing in the environment);
  • the rather straightforward nature of the information repositories and search terms employed to find the suppressed documents; and
  • the absence of any proof that Qualcomm had engaged in any meaningful oversight of its document production.

In a later case, Judge Scheindlin (of Zubulake fame) emphasized that counsel’s duties are both affirmative and formal…writing that the “failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information” (q.v., Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs from earlier this year).  As with her seminal work in Zubulake, Judge Scheindlin has worked to provide some forward-looking guidance to litigants hoping to avoid ire from the bench.

This evolving case law continues to demonstrate two things: (1) courts are increasingly unforgiving when companies fail to demonstrate a reasonable standard of care in preserving responsive data; and (2) the failure to revisit—and to realign—existing policies and practices can cost companies dearly when they find themselves embroiled in litigation.

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AIIM Webinar: “Are you Ready for Litigation?”

Posted by Johnny Lee on May 2, 2010

AIIM WebinarForensic Update is pleased to inform you that a recent webinar delivered via the wonderful folks at AIIM will soon be archived on their site. The original air date of this webinar was April 28, 2010. The following is the AIIM excerpt describing the event.

“You don’t need to be a highly regulated industry to be vulnerable to human resources, intellectual property or other forms of litigation. Don’t play the negative lottery – “it will never happen to us” – get ready for discovery now by taking control of your documents and records. This webinar will walk you through an information discovery analysis from identification through process so that you will know what to expect when the unexpected happens to you. We’ll provide you with proven methods for identifying your most susceptible business content, describe how a records retention schedule can help you contain costs and risks, discuss the proper treatment of records and outline an effective litigation hold process. Even if you don’t find yourself involved in a lawsuit or regulatory investigation, preparing for such an event is just good business.”

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