Computation of underlying data not protected by work product privilege.Ayers v. SGS Control Services, 2006 U.S. Dist. LEXIS 10134 (S.D.N.Y. Mar. 9, 2006).

Computation of underlying data is not protected by work product privilege. Defendants in an overtime pay dispute were ordered to produce a compilation of payroll and timekeeping data although plaintiffs could construct the same compilation from computer records. The underlying data in the compilation was not privileged, and the court was obligated to bring about an inexpensive determination of every action.

Employees of defendants claimed that defendants’ minimum wage adjustment system resulted in less overtime pay than what they were entitled to under the Fair Labor Standards Act. Defendants compiled a tabulation of minimum wage adjustments but withheld it from plaintiffs on the ground that it was attorney work product and could be compiled by plaintiffs in any event by analyzing records already produced to them.

The court held that defendants’ compilation was not protected by the work product privilege because the underlying information was not privileged and disclosure of the compilation would not reveal litigation strategy or thought processes of counsel. The court ordered disclosure of the compilation because Fed.R.Civ.P. 1 required the court to secure the “just, speedy, and inexpensive determination of every action.” The hard copy format of documents already produced to plaintiffs did not allow electronic manipulation of data, and the electronic source data that plaintiffs would have to review included all of defendants’ employees rather than just plaintiffs. Forcing plaintiffs to review all that data would be an undue burden.

Call it the CSI factor. Detectives on popular television shows, such as CSI, tirelessly scrutinize crime scenes for the fabric

threads, skin cells, single hairs, and chemical traces that will clinch cases against evildoers. These shows highlight the detailed molecular fi ngerprint that each person leaves behind in the wake of their daily actions. We may think we pass our days with the evanescence of a ninja, yet we leave behind solid and indisputable evidence of our presence and our actions.

So, too, it is with businesses. In days gone by, the vast majority of our working thoughts

and utterances evaporated inconsequentially like breath on a frosty morning. With the rise of the digital world and its new methods of communications (email, instant messaging, voicemail), our quotidian efforts are now frozen |and recorded, ready to be thawed out and played back for the benefi t of a prosecutor or plaintiff.

Size estimates of the digital wake created by today’s corporations are truly astounding. Businesses create over seventeen trillion e-documents annually. Nearly sixty billion emails are generated each day (you may believe that

Our Digital World: Transforming the Records of Our Existence

CONTINUED ON PAGE 7 >CONTINUED ON PAGE 2 >

MIRANDA WRITES

Corporate Law Department Takes a Proactive Approach to E-Discovery

P3

GUEST ARTICLE

An Aimless Jurisprudence: Giving Direction to Litigation By C. Moze Cowper, Esq., Amgen Inc.

P4

SPOTLIGHT

The Security Audit: Building Trust and Finding Opportunities for Growth

P6

ETHICS IN E-DISCOVERY

Has Information Technology Raised the Level of Professional Competency? By Steven C. Bennett, Esq., Jones Day

P10

PRACTICE TIPS

Selecting and Working with an E-Discovery Vendor: Lessons from the FieldBy Christopher J. DeGroff, Esq., Seyfarth Shaw LLP

P8

FEATURE STORY

CASE LAW UPDATES

T H E E - D I S C O V E R Y

SUMMER 06Corporate Counsel Issue

1www.lexisnexis.com/applieddiscovery

By Jon Olson, Esq. Lucent Technologies Inc.

2 www.lexisnexis.com/applieddiscovery

you are cc’d on at least two billion of these). Not only are there more emails than ever, but also the size of an average email continues to grow. In a recent study, one research group found that in 2003 an average individual daily sent or received nearly 10MB of email and estimated that this number would increase to 46MB a day by 2005. Some researchers posit that 99 percent of all new corporate data is created electronically, with something less than a third ever being printed as a hard copy.

Adding to the ever-increasing layers of digital data is meta data, the additional information contained in an electronic version of a document (e.g. information about when the file was created, when last modified, revision marks, stored comments) that its paper counterpart may not contain.

The ease of creating digital data is surpassed only by the ease of storing it. Back in the day, the costs and effort involved in creating and storing paper documents acted as a brake on the preservation of documents. Today, companies routinely save nearly everything in backup servers or stored tapes. One Fortune 100 company calculates that it routinely stores 800 terabytes of information, which would convert to an eye-popping half-trillion pages if printed out. For a visual reference, one terabyte of data printed out would fill a small ballroom.

In my early days in private practice, I remember mind-numbing days spent reviewing ancient insurance policies and related letters to assess coverage claims. Looking back, I realize, however, that I only had to survey one hundred bankers’ boxes of materials. With the proliferation of digital documents, so easily created and so permanently recorded, such a task undertaken today is exponentially larger. Dante would certainly assign this task to a special circle of hell.

The ever-rising digital flood would be only an annoying social by-product of technology, like cell phones in restaurants, except for the complicating

factors of the myriad laws and regulations governing the retention of documents and data. Sarbanes-Oxley, SEC regulations, the Internal Revenue Code, and HIPPA all contain document retention mandates. Courts are also imposing significant penalties for spoliation of digitally stored documents, including monetary damages, adverse inference instructions, and the occasional entry of judgment. Some significant decisions in this area include Zubulake v. UBS Warburg (S.D.N.Y. 2005), where the judge ordered an adverse inference instruction against UBS in an employment action which ultimately led to a jury verdict for the plaintiff of $29 million and also Coleman v. Morgan Stanley and Co. (Fla. Cir. Ct. 2005), in which Morgan Stanley’s obtuse “pattern of stonewalling,” including an improper certification of its electronic production, led to an adverse inference instruction, a default judgment, and the admission of Morgan Stanley’s discovery-related conduct for

purposes of the jury’s evaluation of punitive damages.

Court rules are beginning to reflect the immense importance of electronic discovery. For example, the District Court of New Jersey has promulgated a local rule that requires counsel to investigate a client’s information management and other

digital storage systems, including historical and backup information, prior to a Rule 26(f) discovery conference. Counsel must also list individuals with knowledge about the client’s information management systems. Most critically, the local rule imposes an obligation for the parties to confer and attempt to agree on electronic discovery issues. Clearly, sophisticated handling of e-discovery and related issues provides a substantial advantage in both prosecuting and defending lawsuits.

However, even as the courts grapple with current electronic communications methods, technology marches on. If dealing with email, its attachments, and its meta data were not enough, there are new collaborative applications that promise to add more complexity to e-discovery. According to a recent Business Week article, the U.S. military and companies such as Disney, Kodak, and Yahoo! are switching their emphasis from email to other software applications to create virtual workplaces.

These new applications include user-editable websites known as wikis (Hawaiian for “fast”), web diaries known as “blogs” (short for web logs), instant messaging (IM), and groupware such as Microsoft SharePoint. There is no doubt that a communication as ephemeral as IM is legally considered a document and is subject to the same retention policies and discovery requirements as any other written communication. Similarly, documents created using the other collaborative applications mentioned above will also be subject to discovery, and the real-time

FEATURE STORY: Our Digital World (continued from page 1)RESOURCES

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IN THEIR OWN WORDS...

“The Applied Discovery Online Review Application

is the optimal tool for electronic review.”

AmLaw Top 25 Law Firm, March 2006

CONTINUED ON PAGE 9 >

One Fortune 100 company

calculates that it routinely

stores 800 terabytes of

information, which would

convert to an eye-popping

half-trillion pages if printed out.

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Corporate Law Department Takes a Proactive Approach to E-Discovery

MIRANDA WRITES

Dear Miranda,

I’m the senior litigation counsel for a large consumer products manufacturer. Like many other companies, we are in the process of developing internal protocols for electronic document management (including document retention and destruction policies) so we are better positioned to respond to electronic discovery requests in litigation. I’ve been to a couple of CLE programs that addressed the issues from a legal standpoint, but we are really looking for some practical advice in determining where to focus our efforts. Can you provide some input?

Stacy G., Atlanta

Dear Stacy,

First of all, congratulations are in order. Many companies wait until a large document request is already pending even to consider the implications of their electronic document management protocols. By thinking ahead about these issues, you can help yourself—and your firm—avoid some potentially painful irritations.

You must consider many issues at this stage of your planning, and answering some questions in the following areas will provide a good framework for setting a solid foundation for litigation preparedness.

1. How does your company manage electronic records in the ordinary course of business? An important consideration here is the quality of internal communications between the law department and the company’s IT group. Many lawyers and IT professionals shy away from one another because they fear they do not speak the same language. When it comes to e-discovery, however, a good understanding of the company’s IT policies is critical to success. You should also educate key IT personnel about relevant legal issues, including the implications of document retention and destruction practices, as well as standards for spoliation. Do not assume that the IT department understands the meaning of the word “discovery” any more than most lawyers understand how to manage a computer network.

Ensuring that your company has legally defensible electronic document retention and destruction practices is of the utmost importance. These standards can vary by jurisdiction, but if you have given the issue proper attention and have a documented—and consistently enforced—policy in place, you will be in the best position to defend your company’s practices, no matter what the type of case or where it is filed.

You should also designate a liaison in the IT group to be trained on all the necessary steps when a “litigation hold” must be placed. In the world of electronic data, even a single day’s delay can cause sanctionable document destruction once the company is on notice to preserve potentially relevant evidence. Pre-training an IT witness for a 30(b)(6) deposition is another tactic that can put you in the driver’s seat when electronic data is at issue in a case.

2. How does your law department communicate with the company’s business people when their cooperation is required in a litigation situation? Unfortunately, law departments are often still viewed as the place where lawyers say “no” when the business people are trying to get

something done. What happens when the tables are turned? In the case of a litigation hold situation, you need to know that the business people understand what will be expected of them and that they are prepared to act quickly. You should have an internal litigation hold letter prepared and ready to send to relevant department managers and employees at a moment’s notice. Ensure that all department managers understand what this means and what they must do in response. Consider conducting a “fire drill” so any problems in carrying out the instructions can be addressed and remedied. Foster an environment where employees are encouraged to know how to carry out these responsibilities in an effective way. This proactive approach will also fare well in the eyes of a court if a discovery dispute arises in the future. Good faith efforts to anticipate and even “practice” compliance with discovery obligations can go a long way in defending your company’s actions in discovery motions practice.

3. To what extent does your law department manage outside counsel discovery practices? Many companies defer to their outside counsel when it comes to making tactical decisions about discovery. While this can be an appropriate approach for smaller companies or those that face litigation only rarely, most companies should take an active role in dictating discovery protocols, particularly when electronic documents are concerned. This is necessary to ensure consistency in your actions something that can greatly influence a court’s view in discovery disputes and to protect your company from unforeseen discovery pitfalls.

One recent example of a tactic attracting attention is the use of so-called “claw-back” agreements. A claw-back agreement can be made between parties to address situations where an inadvertent production of privileged information may be made. These agreements arise most commonly in large-scale electronic document productions where a party may elect to turn over all potentially relevant documents without a comprehensive review rather than spend the time and money to check each document for privileged communications. The party would then reserve its right to “claw back” any document later determined to contain privileged information. One court recently questioned the legitimacy of such agreements in the absence of a specific court order endorsing use of the agreement. Hopson v. Mayor, 2005 U.S. Dist. LEXIS 29882 (D.Md. Nov. 22, 2005). You do not want to be caught off guard on issues like this by allowing outside counsel to make decisions that may substantively affect your position in litigation.

If your law department involves itself in setting guidelines for these kinds of tactical decisions, rather than deferring to outside counsel on a case-by-case basis, you are in a better position to maintain control across the board.

Applied Discovery has many complimentary resources for corporate attorneys, including sample letters, forms, and checklists on this topic. To request any of these materials, feel free to contact me at miranda.glass@applieddiscovery.com.

Miranda Glass is Educational Programs Manager at Applied Discovery.She answers questions from readers in each issue of The E-DiscoveryStandard. You can submit a question to her atmiranda.glass@applieddiscovery.com.

4 www.lexisnexis.com/applieddiscovery

An Aimless Jurisprudence: Giving Direction to Litigation

It may seem odd for an in-house attorney to be thinking about jurisprudence. In fact, it is probably unusual for any practicing attorney these days to be thinking about jurisprudence. Talk to any number of practicing lawyers and you will be hard pressed to arrive at an agreed upon definition of the word. This is not, I think, because we as a group have difficulty using a Black’s dictionary. Rather, it is because our profession has become more business-like, less philosophical. For me, though, jurisprudence is about what the law is—or stated differently, what it ought to be.

Think about how much the law has changed since Professor Langdell began to socratize a group of unsuspecting law students who sat in a classroom in Boston probably thinking, “What have we gotten ourselves into.” First, and maybe most obvious, civil cases do not go to trial these days because it is too expensive and suffers from too much paper, too many people, and not enough judicial resources. Second, we have gone from an industrialized society to one of information and electronic commerce. We are a culture of Wi-Fi, Google, and four dollar lattes. The people that drive the ideas within this culture, or the local convenience store, do not send letters or even place phone calls—they email, they instant message, they text.

What does this mean for the law and how we practice it? It means that what goes into preparing, defending, or prosecuting a case these days has changed. Moreover, we need to rethink our strategy and the tools we employ as both in-house and outside litigators in order to control and manage that change. Lawyers who do not try cases do not know how to prepare cases for trial. In addition, this means that prosecuting or defending a case can become unwieldy, expensive, and soul-depleting.

Case in point: your company or your client is sued by a reputable and well-financed law firm. The attorney bringing the case, though, has not been near a courtroom since he was busted for underage drinking in Daytona Beach in the late 80s. He thinks voir dire is a dirty French phrase. It makes him giggle. In short, he thinks the goal of bringing a lawsuit is to serve 75 requests for production and 150 interrogatories (most of which ask for company employee email and record retention policies) in the hope that, just maybe, you will eventually throw up your hands and beg for settlement. Litigation is no longer about what you need to prove, it is

about causing your opponent enough pain so you can make a profit. In other words, it has no direction.

In 1990, when Congress passed the Civil Justice Reform Act, this is exactly what they sought to do: give our jurisprudence some direction. The Act required early and ongoing judicial control of pretrial processes; it sought to establish cost-effective discovery through cooperation and voluntary exchanges of information and promote good-faith efforts to resolve discovery disputes before filing motions. In 1996, the Judicial Conference of the United States Advisory Committee on Civil Rules, the committee that has the primary responsibility to study the Federal Rules of Civil Procedure and to formulate recommendations for improvements to the Rules, again explored the prospects of additional changes to the discovery provisions. In addition, in April 2000, the Supreme Court adopted those recommendations. More recently, the Advisory Committee has again sought

to modify many of the Federal Rules governing discovery; namely, Rules 16, 26, 33, 34, and 45. Those changes, it is hoped, will take effect on December 1, 2006.

All of these efforts, I think, have undoubtedly helped to make the judicial process more efficient. However, we need to do more. As the litigators inside and outside our corporations and courtrooms, we need to develop a strategic plan

for every case that is filed in our courts. We need a single document, in other words, that answers the following:

• What elements need to be proved or disproved (literally, what do the local jury instructions say)?

• What types of evidence and testimony will support those elements?

• Which company custodians, fact witnesses, and experts will need to have their documents gathered and be deposed?

• How do we reduce the costs of discovery (i.e., can we use contract attorneys to do some or all of the document review)?

• Can we employ software in order to perform targeted searches across the documents and/or use a forensic tool in order to better collect only the relevant documents?

GUEST ARTICLE

Civil cases do not go to trial these days

because it is too expensive and

suffers from too much paper, too many

people, and not enough judicial resources.

CONTINUED ON PAGE 9 >

By C. Moze Cowper, Esq.Amgen Inc.

5www.lexisnexis.com/applieddiscovery

Keys to IT/Legal Teamwork: Clear Communication and Mutual Respect

TECH TIPS

Working with IT can be challenging in the legal industry, especially when it comes to electronic discovery.

The sheer volume of data makes it necessary to become familiar with some technical terminology that may not enter into your normal daily conversation. You may already know some storage terms if you have ever had to buy a personal computer. Yet when you start talking about gigabytes, terabytes, or petabytes of data, indexing, de-duping, term or concept search, native file format vs. PDF or TIFF, and hardware terms like USB or Firewire, it helps to have a basic glossary of terms in your bag of tricks.

One term that is becoming more prevalent in our vocabulary, and that makes most mortal eyes roll back, is meta data. What is meta data? It is simply the extraneous data about a file that is hidden when you open the file—author, file creation and modification dates, location, and so on. Using an email as an example, meta data is all the information outside of the text of the message such as to whom and when it was sent, what server it came from, any attachment information, and more.

Working with IT people can be a little like talking with a mechanic. IT people like to talk about how big their databases are, or how much I/O throughput the latest iron can push across the cool new Fibre Channel switch. Like lawyers, these people are immersed in jargon daily. If you are like most lawyers and do not speak “techese,” you should feel free to tell

your provider or IT team up front. It will likely help out your line of communication from the start, and you may even be able to do a trade—offer to teach them some words from the legalese dictionary in return for a little techno term lesson.

The Keys to Working with IT: Clarity & RespectThe key to working well with IT is not really a big secret. Clarity in communications and respect are the main ingredients. The clearer you can be with your requirements and expectations, the more likely you will get what you need from technology providers or even your local help desk.

Many years ago when I first started my IT career, I worked in help desk support. Back then, the consensus in my group was that the legal department at my company was the least technical and most demanding. The more I worked with the attorneys in the company, I came to understand that, while obviously highly educated, most attorneys have little training when it comes to the technology they use as tools in their practice. That realization helped me to more efficiently resolve their issues and manage their expectations. Understanding and empathy can go a long way into improving any working relationship. Find common ground if you can. One thing that IT shares with lawyers (and accountants for that matter) is an understanding of crazy hours—and probably a commitment to caffeine.

The IT PerspectiveAs e-discovery technology and law continues to evolve, one thing that law firms and corporations will have to come to terms with is the incredible volume of data that is being processed on a case. Applied Discovery is currently working on cases with over 15 million documents translating to upwards of 100 million pages. That would be a lot of boxes of paper to go through looking for a smoking gun. In order for the legal team to begin document review, it’s the IT staff who will need to deal with the data: from storing, parsing, and indexing, to processing into a common viewing format, and performing daily backups throughout the life of the case. Data may reside on storage hardware for years in some cases, and consume a large amount of energy and support time. A few million pages can take up over one terabyte of storage between the files, index, and database. This alone can cost many thousands of dollars per year for the enterprise class systems that major providers like Applied Discovery use. For a little perspective, one of the cases referenced above with more than 15 million documents requires approximately the same amount of storage most large companies require for both email and file share systems for their entire corporate infrastructure.

Whether working with internal technical teams or outsourcing to e-discovery service providers, take some extra time to learn how to communicate with the IT staff. The effort will go a long way to ensuring the best possible legal position when approaching any e-discovery case.

By Brian Hanson, Director, Information TechnologyApplied Discovery

6 www.lexisnexis.com/applieddiscovery

The Security Audit: Building Trust and Finding Opportunities for Growth

SPOTLIGHT

Al Cushon Vice President of Technical Operations, LexisNexis

This issue’s Spotlight column features an interview with

Al Cushon, Vice President of Technical Operations

at LexisNexis. Mr. Cushon is responsible for ensuring

around-the-clock operation of six different LexisNexis product

lines, including the Applied Discovery Online Review Application.

He manages teams responsible for application design, system

design, network design, hardware acquisition, and overall

system maintenance.

The E-Discovery Standard (EDS): Some clients are requesting security audits for e-discovery providers. Why is a security audit important?

Al Cushon (AC): A security audit is the primary way for the client to gain a better understanding of our security procedures and to be assured that his or her data is safe. It is a complete review of the provider’s security policies and procedures. At Applied Discovery, this typically involves clients visiting our facilities to physically inspect every aspect of how we handle their information.

7www.lexisnexis.com/applieddiscovery

EDS: What is included in an audit?

AC: Every audit is customized for each client. Some of our clients only review the code. Others review our personnel’s background checks. Some of our clients inspect the receiving facilities, while others inspect the data facilities. We have had clients review the method in which we store the data on the drives and transmit the data internally and externally. A few of our clients have done all of the above. The security audit is not limited to one item or even limited to the items listed above, but is truly unique for each client. The only thing that is absolute about a security audit is that each one brings an opportunity for the client to gain confidence in the provider and for the provider to improve; the more audits an e-discovery provider goes through the better.

EDS: What are the challenges regarding security in the e-discovery process?

AC: Security is a vast and complex subject that is almost impossible to do correctly unless you approach it holistically, make it a core focus, and audit constantly. Unlike other technology industries, in e-discovery, security is not an afterthought—it is a central thought. It takes a lot of time and experience to put it all together so that it works and allows the client to focus on the litigation at hand. When dealing with information as potentially sensitive as some encountered during discovery, it is critical that security be the first, middle, and last consideration. Our focus on security starts with our personnel selection and organizational design, and continues throughout all our processes, technical design, implementation, and fi nally ends in deployment.

Good e-discovery providers take security very seriously and have the infrastructure and processes in place to ensure success. It must be a matter of course for the provider.

EDS: What steps do you take to ensure safety of our clients’ data?

AC: The most important steps we take to secure our clients’ data are already complete well before we receive the data. It starts with our security focus and industry experience, and then extends through our technology investment, staff, and procedures. Once we receive the data from the client, we maintain a strict chain of custody and shepherd the datathrough our extensive electronic and physical security measures until the client instructs us to dispose of the case.

EDS: Would it be better for law firms or corporations to maintain the data internally?

AC: Defi nitely not. The business of doing electronic discovery is not the core competency of most firms and corporations. While e-discovery is a simple concept to grasp, it is an extremely in-depth and complex process with potentially dire consequences if done incorrectly. Providers with lots of experience understand the unique security requirements and technological nuances involved with e-discovery, are better suited to the task, and usually produce excellent results.

EDS: When selecting an e-discovery provider, what questions should clients ask regarding security?

AC: There are hundreds of potential questions, but the most vital ones include the following:

• Why is your staff uniquely prepared for our case?

• Are they CISSP certified? (CISSP certification is one of the highest security certifications in the industry)

• What other security credentials does your staff possess?

• How experienced is the staff?

• What is the background of the staff?

• What were your security considerations in the design of your software?

• Has your software been independently reviewed for security considerations? What were the results?

• What are the provider’s policies and procedures for handling the data?

• How do you limit access to this data for your staff?

• How do the providers physically store andbackup the data, and how are the storage and backup locations secured?

SPOTLIGHT

Mr. Cushon is a graduate of the United States Military Academy at West Point, New York, where he earned a Bachelor’s degree in Computer Science and Electrical Engineering.

Production of TIFF images not suffi cient in some cases.Hagenbuch v. 3B6 Systemi Elettronici Industriali S.R.I., 2006 U.S. Dist LEXIS 10838 (N.D. Ill. Mar. 8, 2006).

Production of documents in TIFF format was inadequate because the TIFF documents did not contain all of the relevant, non-privileged information contained in electronic media designated for production. TIFF documents did not contain document modifi cation dates, email attachments and recipients, and meta data.

Plaintiff in a patent infringement action went to an Italian company’s offi ces in Illinois to inspect and designate electronic media for production. The company offered to provide hard copies of the designated electronic documents, but plaintiff insisted on production of identical copies of the electronic media. The company responded by producing Tagged Image File Format (TIFF) documents.

The court held that the TIFF document production was inadequate. The company was obligated to allow plaintiff to obtain identical copies of the electronic documents. Rather than produce what plaintiff had designated, the company produced essentially new documents in TIFF format. The company did not claim anything in the original documents was privileged or confi dential, and plaintiff was entitled to relevant information regarding revisions, email and meta data that was in the original documents but not the TIFF documents.

The court rejected the company’s argument that TIFF documents were needed in order to provide “Bates” numbers that would allow tracking of the documents. Based on what it learned at a hearing, the court concluded that the parties could agree on any number of ways to designate each page of each document produced, including, but not limited to, relying on fi le names and page numbers.

CASE LAW UPDATES (continued from page 1)

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E-discovery is a buzzword frequently seen in harshly-worded court decisions and ominous law-firm alerts around the country. From single plaintiff cases to nationwide class actions, electronic discovery has become the proverbial tail wagging the litigation dog. In a changing litigation landscape where discovery abuses have given way to enormous jury verdicts, mining electronic documents for hidden data, recovering archived backup tapes, and searching individual hard drives for elusive smoking-gun emails have all become necessary in even garden-variety cases. Few litigators, however, have the expertise or time to conduct this sort of virtual-scorched- earth discovery. Enter the e-discovery vendor.

E-discovery is big business. There are virtually hundreds of companies popping up all around the country touting their e-discovery expertise. Not all vendors, however, are alike. They have various levels of skill and expertise, and are by no means infallible. Moreover, when engaged at this level of technical intricacy, mistakes can happen with embarrassing and sometimes chilling results. Counselors must educate themselves and investigate a potential provider and its services thoroughly before choosing an e-discovery partner. Because this partnership extends to counsel themselves

who must work with the vendor and provide the proper support and data, counsel must be prepared to do their part to make the e-discovery process run smoothly. Counselors often make some common mistakes in this area. Avoiding these mistakes can prevent devastating results down the road. Here are some questions to ask when interviewing a potential e-discovery provider.

1. Background QuestionsBegin with questions on topics such as how long the organization has been in business and how many years of e-discovery experience it has. E-discovery can be a complicated process. A vendor needs to have a solid foundation consisting both technical issues and the over arching legal issues that affect e-discovery. Just because a company has the technological expertise does not mean they understand the consequences of a discovery process gone awry. As new court opinions are handed down concerning how e-discovery should or should not be handled, vendors must stay on top of these issues in order to provide counsel with a total solution. Other questions should include information about how many employees work for the company and a history of their backgrounds and qualifications. A vendor must be able to provide counsel the

kind of support necessary to service the case properly. It is one thing to be able to process data, it is another to be able to provide 24-hour client service and anticipate problems. A vendor’s understanding of the litigation process and the pressures that go along with it are key to success.

As with any vendor, get references. While confi-dentiality may prevent full disclosure, you should expect to be able to talk directly with past clients.

2. Data Gathering and Processing Capabilities and FunctionalityNext, a series of technical questions should be asked. Consider how the data ultimately will be used. Is it just for one case or will these documents be used in other cases? Will you need these documents at trial or during motion practice? How do you plan to produce them to opposing counsel?

After these questions are answered internally, the vendor should be able to tell you how they can help you reach your ultimate goals. The vendor should be able to tell you whether they can actually help you gather all of the possibly relevant data or whether you and your client will be responsible for collection. If you want to rely on the vendor to gather data, you should ask about the process by which this is done, particularly if you know that data will need to be collected from sensitive sources such as a CEO’s laptop or home computer. Then determine how the vendor will cull the information appropriate for your case: does the vendor’s process include search capabilities in order to narrow the collection to the relevant information? If so, who will provide the search terms? It is during this process that the collaboration between counsel and vendor is critical to success. Questions can arise later about how documents were searched in order to find the relevant set. Counsel must be comfortable enough with the vendor’s process so that it can be

CONTINUED ON PAGE 9 >

IN THEIR OWN WORDS...

“It is a solid program with great information. The course was well-organized and practical.”

E-Discovery Best Practices Course Attendee | San Francisco, February 2006

PRACTICE TIPS

Selecting and Working with an E-Discovery Vendor: Lessons from the Field

Christopher J. DeGroff, Esq.Seyfarth Shaw LLP

Part One of Two

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defended in court if necessary. You should also determine whether the vendor can provide backup tape restoration. Many recent e-discovery cases have focused on the requirements of searching backup tapes. If this may be an issue in your case, you need to know whether your vendor can provide these services.

You should also ask about the vendor’s daily data processing capacity. This is important in order to understand the timing of the project, especially if the vendor is working on many cases at the same time. Ask questions about how the data is processed, and ask what types of files the company cannot handle, if any. Learn how problems in data processing are handled and tracked. Duplicates should also be addressed, including whether the process includes “de-duping” of documents, what the criteria will be for that process, and how those are handled and tracked. If you are dealing with confidential information, you should also know about the security of your data—such as whether a secured and/or dedicated server is used for documents being handled online. It is also important to know whether the data can be processed in stages so that review can begin immediately to save time and money.

Other key questions include the functionality of working with the documents once they are processed. How will the data be presented? Will the files be pro-cessed so that they can be viewed in their original form (spreadsheets, a word processing program, etc.), or in an imaged format (i.e., an electronic picture of the document), or both? Much has been made about “native file review” over the past year or so, but the use of imaged formats such as PDF with a native file viewing capability is quickly becoming a favored format due to its functionality and ease of use. Will the documents be accessible online so that attorneys can review documents from anywhere? How will the meta data be handled, and will counsel be able to see all meta data easily? Recent case law suggests that in some cases meta data can be discoverable. See Williams v. Sprint United, 2005 US Dist. LEXIS 21966 (September 29, 2005). Being able to review the meta data for privilege is very important and must be addressed.

3. Cost IssuesStandardized pricing, such as pricing per gigabyte, is becoming a common practice. However, counsel should be aware of the hidden costs that may be considered add-ons for some vendor pricing. Questions about costs should include whether pre-project planning is included, whether the company will provide training for authorized users, whether the use of any online review is unlimited for an unlimited number of users, and whether the company provides 24-hour client service with a dedicated account manager. You should also ask whether software maintenance and upgrades are included and whether project management will be available for the life of the case.

ConclusionThis discussion highlights the critical questions to ask your vendor (or your opponent’s vendor when on the offensive), but unless you understand what you are asking, the answer will be meaningless. Require the vendor to explain each of these concepts to you. Force yourself to become at least conversational in their language. Judges are becoming increasingly sophisticated with respect to technology. Correspondingly, judges are less tolerant of lawyers who simply claim they are not “techies” and hope that will carry the day when technical issues arise. Knowing less about one’s own e-discovery vendor than your opponent can be a fatal error.

Part two of this article will appear in the fall issue of the E-Discovery Standard, and will provide guidance on how to interact with your chosen e-discovery service provider.

PRACTICE TIPS

collaborative nature of these software tools, so appealing for business users, will prove vexing for litigators.

The ultimate lesson is that our digital world mandates that a company take control of its record creation and retention process in ways infinitely more rigorous than ever before. Relegating document life-cycle management to an ad hoc system is a recipe for disaster.

On the front end of the document life cycle, employees must be trained and frequently reminded that despite the informal, uninhibited style encouraged by modern written communications, such documents are not private, not anonymous, nearly indestructible, and subject to litigation discovery. Employees should consider whether a document is even necessary, particularly in areas that are controversial and subject to misunderstanding.

An additional side benefit of mastering the records management process is the salutary effect it can have on knowledge management efforts. Having a comprehensive document storage taxonomy can help a company leverage the knowledge inherent in its corporate databases.

It is beyond the scope of this article to tailor suggestions for the multitude of corporations facing electronic document retention and discovery issues, but prompt and thoughtful action is a must. Otherwise, you may find yourself one day on a witness stand being called to account for some piece of data, some molecule of yourself, that you did not even know you left behind.

FEATURE STORY: Our Digital World (continued from page 2)

• What motions (i.e., a motion to bifurcate on the causation issue or statute of limitations defense) can be brought early in the case in order to focus the court’s attention?

In the end, what we need is a more useful jurisprudence —a creative and pragmatic approach to every case that is filed. The development of an all-encompassing strategic plan that can be applied to every case that gets filed in our courts can help give new direction to litigation. In pursuing this effort, I also hope we rethink what makes our profession different from any other business: a belief in what can be proved, objectivism, and the rule of law as a means to shape the human condition. Jurisprudence is not merely about what the law is; rather, it is about what it could and ought to be. Anything less, would just seem, well, business-like.

C. Moze Cowper is an in-house attorney with Amgen Inc.—the world’s largest biotech and human therapeutics company. He focuses his practice on products liability and complex commercial litigation. He is also the former law clerk of the Honorable Marina Corodemus (ret.), New Jersey Superior Court, Mass Tort Division.

GUEST ARTICLE: An Aimless Jurisprudence (continued from page 4)

Jon Olson is a Corporate Counsel at Lucent Technologies. He holds a B.S. from Georgetown University, a J.D. from Dickinson School of Law and an M.B.A. from Seton Hall University. He is a member of the New Jersey and New York bars. The views expressed in this article do not necessarily reflect the views or practices of Lucent. The author wishes to thank Michael Jagiello for his contributions to this article.

Chris DeGroff is a partner in Seyfarth Shaw LLP’s Chicago office practicing class-based labor and employment law. He can be contacted at cdegroff@seyfarth.com.

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Ethics in E-Discoveryby Steven C. Bennett, Esq., Jones Day. Part 2 of 4

SPECIAL SERIES2006 This year we will include a series of articles written by contributing columnist

Steven C. Bennett of Jones Day. These articles will focus on ethics and will address a wide range of e-discovery topics.

I. IntroductionTechnology has changed the way we practice law. Searchable case law databases help us research faster, brief banks help us share work product, and document management systems help organize our cases. Many of these tools are exactly that: implements that help us work more effi ciently and with greater organization. Lawyers can choose to use these technologies as they see fi t.

However, in the electronic discovery arena, which is inherently tied to technology, failure to use available technologies limits a lawyer’s ability to represent the best interest of a client. In the age of electronic information, it is literally impossible to produce all relevant information without the use of some information technology. Thus, the question arises whether some minimum technological standards will be applied to attorneys practicing in this area. II. Ethical Obligations ABA Model Rule of Professional Conduct 1.1 requires that lawyers provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. “Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.

There are very few cases or ethics opinions that discuss the application of this rule in the context of technology. However, an argument can be made that “reasonableness” requires litigation attorneys to stay abreast of technological advances as they apply to e-discovery. Indeed, the American Bar Association

website states that “competence in using a technology can be a requirement of practicing law. Requirements for technological competence may appear as part of rules for professional conduct, continuing legal education (CLE) programs, and malpractice insurance premium credits.”

The ABA statement cites the Law Society of Alberta, Canada, which created a subcommittee on Ethics and the New Technology to tie its Code of Professional Conduct to particular areas of technology, and notes that a publication entitled “Technology and the Duty of Competence” addresses this suggestion that “competence” requires “maintenance and improvement of knowledge and skills.” The Alberta Subcommittee “suggests that this requirement includes technological profi ciency, especially in areas directly connected to an attorney’s area of practice.”

Although no published ethics opinion in the U.S. appears to have addressed this issue, in the context of malpractice and in analyzing ineffective assistance of counsel, which both contain a reasonableness standard, courts have recognized that as technology changes, a lawyer’s obligations may change as well.

For example, in McNamara v. United States, 867 F. Supp. 369; rev’d 74 F.3d 514 (4th Cir. 1996), plaintiff claimed that his counsel was ineffective because counsel did not stay current on the law. The issue was “whether, in this environment, it is outside the wide range of reasonable conduct for a lawyer to fail to utilize some method of keeping up with changes in the law.” Although the district court decision was ultimately reversed and remanded, the lower court stated that:

Has Information Technology Raised the Level of Professional Competency?

Steven C. Bennett, Esq.Jones Day

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One consequence of this modern environment and of dramatic advancements in technology is the advent of extensive resources for staying abreast of developments in the law. Numerous legal newspapers, periodicals such as United States Law Week, and on-line services serve this important purpose.

867 F. Supp. at 374. In reviewing the advancements in technology from 1975 versus 1994, the court also stated that:

The accessibility of up to date legal information at that time was not comparable to its availability today. As technology and resources develop, the minimum knowledge and preparation required of lawyers develops as well.

Id. at 375 n.3.

Similarly, in the malpractice case Smith v. Lewis, 530 P.2d 589 (Cal. 1975), the court recognized that an attorney assumes an obligation to undertake reasonable research in an effort to ascertain relevant legal principles. Although an attorney is free to strategize as he or she sees fi t, the court held that “there is nothing strategic about ignorance.” Id. at 595.

III. E-Discovery ConsiderationsUnlike online research or other technological assistance, e-discovery is inherently tied to technology. For example, only through technology can a client’s data be culled from computers or backup tapes restored. Although it is true that electronic documents can be printed from a computer and produced that way, as more and more courts consider the production of meta data, printing paper documents for production may no longer be an option.

The issue of meta data poses additional technical challenges. Once the electronic information and its meta data has been gathered, exploring and reviewing that data can only be accomplished through the use of technology. Attorneys who do not know how to review meta data could leave their clients open to risks, such as the inadvertent production of privileged material.

Although, as the court in Smith v. Lewis recognized, lawyers are free to make strategy calls as they see fi t, lawyers must at the very least be aware of the options available to them and to their clients when it comes to e-discovery. Moreover, they must be willing to obtain inside or outside technical assistance when it is necessary. The recent case of Coleman (Parent) Holdings v. Morgan Stanley, CA 03-5045 AI, 2005 Extra LEXIS 94 (15th Jud. Cir. Fla. March 23, 2005) further highlights this potential obligation in e-discovery. In that case, the court required that a third-party e-discovery vendor check compliance with an agreed order. Id. at *15 n. 6.

Conclusion: As the McNamara case recognized, technology will continue to change what is reasonable in the practice of law. Litigation counsel will need to make sure that they are aware of the changes technology has made to the discovery arena, so that they can properly advise their clients and assure courts that they have provided all information required in the discovery process.

Steven C. Bennett is a partner in the New York offi ce of Jones Day and chairman of the fi rm’s e-discovery committee.

UPCOMING EVENTSApplied Discovery will participate in several events in the upcoming months. To register for one of the events or to find more information about other electronic discovery events, visit the News & Events section of our website at www.lexisnexis.com/applieddiscovery.

In this issue: Corporate Counsel Focus

Guest Article: “An Aimless Jurisprudence: Giving Direction to Litigation,” by C. Moze Cowper, Esq., Amgen Inc. See page 4.

Practice Tips: “ Selecting and Working with an E-Discovery Vendor: Lessons from the Field,” by Christopher J. DeGroff, Esq., Seyfarth Shaw LLP. See page 8.

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All information provided in this document is general in nature and is provided for educational purposes only. It should not be construed as legal or professional advice. Applied Discovery encourages you to conduct thorough research on the subject of electronic discovery.

LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Applied Discovery is a registered trademark and The E-Discovery Standard is a trademark of Applied Discovery, Inc. Other products and services may be trademarks or registered trademarks of their respective companies. © 2006 Applied Discovery, Inc. All rights reserved. AD00287-0 0606

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Litigation Skills for Legal StaffCobb Galleria Centre | Atlanta, GAJune 7, 2006

Critical Update on Internal and Government InvestigationsHyatt Regency | Washington, DCJune 8-9, 2006

Applied Discovery: E-Discovery Best Practices CourseMarriott East Side | New York, NYJune 15, 2006

Allegheny County Bar Association: Bench Bar ConferenceSeven Springs Mountain Resort | Champion, PAJune 15, 2006

Massachusetts Continuing Legal Education’s Paralegal Conference MCLE Conference Center | Boston, MAJune 26, 2006

ABA Annual MeetingPresidential CLE Centre & Hawaii Convention Center Honolulu, HIAugust 3-8, 2006

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