“E-Discovery Best Practices for IT” Webinar Highlights

Jason Pickens

IT teams are the unsung heroes of litigation, spending many hours searching for relevant electronically stored information (ESI), helping the legal team “herd cats” to ensure that custodians respond to litigation holds, and preparing massive files for both review and production phases. Having spent time with many legal and IT teams across North America and Canada, I’ve compiled a few best practices after some discussion with my recent webinar co-presenter and former colleague, Carl Wong, who’s an adjunct professor in forensic computing at the John Jay College of Criminal Justice.

#1 – Bring Preservation and Collection In-House

Lowering costs relative to both software and a streamlined collection process are big benefits, but not the only ones. No one understands your IT landscape better than you do, and it makes sense for you to be the drivers of a repeatable and defensible process that’s part of a total response plan. Bringing the oversight of the process in-house doesn’t mean your team has to do all the work, but rather that you should have control over the process for greater efficiency and lower risk.

See for Yourself: EnCase® eDiscovery v5 is Out

Bryant Bell

EnCase® eDiscovery v5 marks the advent of significant new capabilities – breakthroughs, even – for in-house counsel, government agencies, and law firms who need to get e-discovery done right. No more outsourced black boxes. For the first time, litigation specialists and their legal teams can have complete oversight of the entire e-discovery process, from a greatly automated legal hold phase through early and continuous case analysis all the way through to production.

Rolling the Dice on Legal Hold: Still Not Worth the Risk

Daniel Lim

On July 10, 2012, the Second Circuit issued an opinion in Howard Chin v. The Port Authority of New York & New Jersey, 2012 WL 2760776 (C.A.2, 2012), addressing the legal standard for failure to issue a legal hold notice for relevant evidence. The opinion limits the often-cited standard for legal holds announced in Pension Committee by Judge Schiendlin in 2010.

The Chin case is an appellate opinion that addresses the alleged failure to institute a legal hold for relevant files. The case involved a group of Asian American police officers alleging violations of Title VII by the New York and New Jersey Port Authority based on being passed over for promotions. Charges of discrimination were filed in January of 2001. During discovery, the plaintiffs learned that the Port Authority had failed to issue a legal hold to preserve at least thirty-two promotion folders used to make decisions between August 1999 and August 2002. Plaintiffs sought an adverse inference instruction for the spoliation. The district court denied the motion, finding ample alternative evidence regarding the relative qualifications of the plaintiffs. The district court found that the defendant’s destruction of relevant documents was “negligent, but not grossly so.”

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.