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eDiscovery and Public Records Applications

Michelle Jordan Blankenship Jordan PA

Todd EastmanLogikcull.com

June 29, 2017FACA Annual Conference

Agenda

• The Florida public records landscape

• Parallels between open records response and eDiscovery

• The basics of eDiscovery - What attorneys need to know

• Practical guidance and takeaways for open records response

• Risks, horror stories and penalties for non-compliance

“Living in a constant state of discovery”

• Limited work product exemption under Section 119

• Protections that are available in civil discovery aren’t available under public records laws

• Native files, which can pose particular problems, are often at issue

• Data is growing in terms of size, forms and repositories (e.g. social media, mobile devices)

Worst case scenarios and horror stories

• Sanctions

• Payment of fees and costs

• Overhead costs that can’t be passed through to requestors

like this…

Parallels from the eDiscovery world Documents and data must be…

• Preserved* • Collected • Searched, reviewed and redacted for privilege • Produced to requested parties

*Integrity of data must be maintained at all stages

Parallels from the eDiscovery world Technology can be…

• Clunky, hard to use, and training-intensive • Expensive and include hidden fees • Inaccessible (e.g. on-premise solutions, seat-licenses, need

certain operating systems)

The process can… • Be manual and time-consuming • Be risky and insecure • Involve many different parties and custodians

1-3 days 1-2 days 1-5 days

Producing Party

Send data Law firm

CDsDVDs Thumb drives FTP Email attachments

Sends data

Internal Tech

External Tech

Gather instructions Process data OCR images Fix exceptions Charge by the hour Make multiple copies of data

Loads data Review Platform Ships data Requesting Party

Keyword search Linear review Manual prove review Exception review Final QC review Slow & inefficient

CDs DVDs Thumb drivesFTP Email attachments

Confirm receipt Copies data loads for review Looks for errors

1-5 days

How the eDiscovery process works

Transforming the EDRMData stays in 1 secure place in a closed-loop system

Mins/hours Hours/days

Client Law firm

Requesting party

UploadsData

ReviewsData

Downloads Data Securely shares data w/ShareSafe

https:// https://

https://https://

Secure Discovery

Hub

Guidance and Takeaways - Limiting Record Creation

• Limit use of personal devices where possible

• On government-issued devices, limit communications (e.g. Turn off wi-fi and texting)

• Reconsider stipend policy for personal devices

Guidance and Takeaways - Understand Your Obligations

• You don’t know what you don’t know - Ask for help!

• Be familiar with the law in your jurisdiction

• Preservation is crucial - this includes metadata

• Florida attorneys must meet minimum tech competence standards: mandatory technology CLE

• When dealing with records, limit use of manual and/or off-the-shelf tools (e.g. Outlook, Adobe Acrobat)

• Seek out technology that is appropriate for the task at hand

Guidance and Takeaways - Identify the Right Technology

• When considering price, keep in mind the cost of inefficiency and risk