Highlights of the Sedona Conference Institute Program on “eDiscovery in a New Era”

Chad McManamy

Last week I attended the 8^th Annual Sedona Conference Institute Program, “eDiscovery in a New Era: New Technologies, New Media, New Rules.” During the initial session, leaders polled the audience as to how many were first-timers at the event, and a significant number of attendees raised their hands. I've attended the annual event for the past four years, and am encouraged to see more people taking an interest in improving their e-discovery processes.

Zubulake Opinions Still the Standard

This year’s program focused on drawing a finer point on specific issues. Case law is always of interest, but discussions still mostly continue to refer back to cases such as the now classic Zubulake v. UBS Warburg, which led to the issuance of a groundbreaking series of opinions on electronic discovery from Judge Shira Scheindlin prior to the 2006 amendments to the Federal Rules of Civil Procedure (FRCP). At the 2014 Sedona Conference Institute Program and going forward, we are simply further defining the questions at issue. No sea change in opinion or ramifications of these opinions was in evidence this week.

The Road to Sanctions is Paved with Good Intentions

Siddartha Rao

In Sekisui American Corp. v. Hart, Judge Scheindlin issues discovery sanctions, warns counsel that good intentions are not enough

Counsel should take note of the adverse inference instruction sanction Judge Shira Scheindlin issued against the plaintiff in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), (S.D.N.Y. Aug. 15, 2013) (“Sekisui”), an action against former executives for breach of contract. The case signals potential increased risks to litigants who fail to implement proactive hold and preservation policies and should provide guidance to counsel about the need for defensible forensic processes. 

CEIC 2013: Leading Judges Speak on TAR and Digital Information in Criminal Prosecutions

Daniel Lim

Many thanks to Judges Vanessa D. Gilmore, (U.S. District Court, S.D. Tex. – Houston Division), David Waxse (U.S. District Court, Kansas), and Karla Spaulding (U.S. District Court, M.D. Fla.) for an engaging and informative panel at the CEIC® 2013 conference in Orlando.

TAR: Holy Grail or Helpful Tool?

Judge Waxse helped to start us off with a discussion of whether experts would be required to testify for the use of new technologies in discovery, such as technology assisted review (TAR).  While Judge Peck has indicated his view that such testimony would NOT be needed because Federal Rule of Evidence applies to trial, rather than discovery, Judge Waxse takes an opposing view.  

E-Discovery Gone Wrong: The Blooper Reel

Five years after the changes to the Federal Rules of Civil Procedure (FRCP) our professions should have worked out the kinks in collecting, processing, culling, reviewing, and producing electronically stored information (ESI). 

And yet, most haven’t. ESI is still being created in the main through the use of Microsoft Word and Outlook for written communications. Social networking and smartphones and tablets are complicating matters, but they’re not yet primary sources of discoverable ESI.

Virtualization and cloud computing are adding to the complexity of the enterprise technology environment. While that contributes to e-discovery challenges, it doesn’t justify most of the issues being presented by litigants. The main problems lie elsewhere. 

Here’s a collection of key takeaways from recent cases involving e-discovery errors.

Why an In-House Review Solution Requires a Fully Integrated Collection Solution

John Blumenschein

Judge Timothy C. Batten, Jr. of the United States District Court for the Northern District of Georgia recently issued discovery sanctions against Delta Airlines for failing to properly disclose 60,000 pages of documents in In re Delta/AirTran Baggage Fee Antitrust Litig., --F. Supp. 2d--, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012), a copy of which can be found here. As a result, Delta was ordered by Judge Batten to pay reasonable attorneys fee and costs associated with the sanctions motion, as well as the costs of the additional discovery.

At issue in the case was Delta’s document production. The missing 60,000 pages of documents, which pertained to bag fees, were discovered as a result of a disclosure by Delta to a Department of Justice document request in an unrelated investigation. Delta determined that the missing documents had been stored on the hard drives of custodians and were not located on any shared server drive or any network email server.

Prior to plaintiff’s motion for sanctions, Delta took steps to disclose all of the documents that had not been produced earlier. None of these documents were considered a “smoking gun,” but in fact helped bolster Delta’s legal position.

As a result of not properly disclosing the 60,000 pages of documents, the Court imposed sanctions on Delta, finding that Delta failed to conduct a reasonable inquiry of the discovered documents in violation of Federal Rule of Civil Procedure Rule 26. The Court did not immediately issue a dollar amount on the sanction. The Court allowed the parties to brief amount of sanctions Delta would owe the plaintiffs. That briefing is ongoing. The Court found that Delta had a “huge hole” in its production procedures because there was no way to confirm that all of the necessary hard drives had been turned over for imaging and scanning.

The problem was compounded because Delta’s counsel had consistently informed the court that everything had been produced. Under Rule 26(g), a party signing discovery papers must certify that the responses are complete and correct to the best of the attorney’s knowledge after a reasonable inquiry. Here, the Court found that attorneys for Delta did violate Rule 26(g) because they did not conduct a reasonable inquiry to ensure all the necessary hard drives had been searched.

What is noteworthy about the Delta case is that an in-house review solution was mentioned repeatedly in the opinion. Clearly, simply having a review solution by definition is not enough to have a defensible in-house process for e-discovery. A review solution on its own does not address the area where 95% of the risk of e-discovery sanctions exists – preservation and legal hold.

Not only do the preservation and legal hold stages hold the most risk in the e-discovery process, but the issues surrounding those stages are usually not realized until it is very late or too late in the e-discovery process. EnCase eDiscovery is the only solution to allow for full integration of Pre-Collection Analytics, Legal Hold, Preservation & Collection, and First Pass Review. EnCase eDiscovery’s integrated solution allows legal and technical personnel to communicate and work together to avoid “holes” such as those that surfaced in the Delta case.

Click here to learn more about how EnCase eDiscovery with the addition of Case Central can help your organization achieve a complete and unified e-discovery solution.