E-Discovery in Employment Litigation Cost-Saving Strategies for - PowerPoint PPT Presentation

presents presents E-Discovery in Employment Litigation Cost-Saving Strategies for Preserving Obtaining and Protecting Cost-Saving Strategies for Preserving, Obtaining and Protecting Electronically Stored Information A Live 90-Minute Teleconference/Webinar with Interactive Q&A Q& Today's panel features: Danuta Bembenista Panich, Shareholder, Ogletree Deakins , Indianapolis Michael McGuire Shareholder Littler Mendelson Minneapolis Michael McGuire, Shareholder, Littler Mendelson , Minneapolis Thursday, October 7, 2010 The conference begins at: The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 10 am Pacific P ifi You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrants.

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E-Discovery in Employment Liti Litigation ti Program Sponsor: Strafford P bli Publications ti October 7, 2010 Presented By: Donna Panich, Esq. q Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

ER G TOGETHE DISCOVERY IN EMPLOYMENT LITIGATION TENDS TO BE LITIGATION TENDS TO BE WORKING A ONE-WAY STREET LAWYERS, LOYERS & L EMPL 5 FIRST CLASS SERVICE, COAST TO COAST

HAVE THE RULE AMENDMENTS HELPED?  American Trial Lawyers Task Force on ER G TOGETHE Discovery: WORKING “The discovery rules in particular are impractical in that they promote full discovery as a value above almost anything else” above almost anything else LAWYERS, LOYERS & L EMPL 6 FIRST CLASS SERVICE, COAST TO COAST

HAVE THE RULE AMENDMENTS HELPED?  Cartel Asset Mgt. v. Ocwen Financial Corporation, 2009 ER G TOGETHE WL 2242395 (D. Colo. 2009): “The discovery process necessarily imposes burdens on The discovery process necessarily imposes burdens on WORKING the responding party” Argument that certain discovery “would affect our A h i di “ ld ff LAWYERS, profitability and ability to serve our clients” was “the e- discovery equivalent of a claim that the ‘sky is falling’” LOYERS & L EMPL 7 FIRST CLASS SERVICE, COAST TO COAST

HAVE THE RULE AMENDMENTS HELPED?  39 % of all recent ESI cases involve spoliation ER G TOGETHE claims  Standards vary  Standards vary WORKING  Proof of deliberate, bad faith conduct (Fla.)  Some evidence of intentional misconduct (Tex.) LAWYERS,  Negligence (NY)  Victor Stanley Inc v Creative Pipe Inc (D Md  Victor Stanley Inc. v. Creative Pipe Inc. (D. Md. LOYERS & L September 9, 2010) EMPL 8 FIRST CLASS SERVICE, COAST TO COAST

9 E-DISCOVERY ACROSS THE STATES FIRST CLASS SERVICE, COAST TO COAST ER G TOGETHE WORKING LAWYERS, LOYERS & L EMPL

WHAT DOES THIS MEAN? ER G TOGETHE A new industry WORKING A new paradigm e pa ad g LAWYERS, LOYERS & L EMPL 10 FIRST CLASS SERVICE, COAST TO COAST

EMPL LOYERS & L LAWYERS, WORKING G TOGETHE ER FIRST CLASS SERVICE, COAST TO COAST 11

KEY PHASES OF DISCOVERY Triggering event  ER G TOGETHE  Litigation or reasonable anticipation thereof Liti ti bl ti i ti th f Search  WORKING  Identify the preservation universe in gross Id if h i i i Preserve  LAWYERS,  Suspend the ordinary disposition or alteration of information LOYERS & L Id Identify tif   Locate responsive/potentially responsive information EMPL 12 FIRST CLASS SERVICE, COAST TO COAST

KEY PHASES OF DISCOVERY  Collect ER G TOGETHE  Take physical custody of responsive/potentially responsive information WORKING  Review  Multi-pass process to reduce information to responsive & non-privileged LAWYERS,  Produce  Process to deliver responsive & non privileged information  Process to deliver responsive & non-privileged information LOYERS & L to parties EMPL 13 FIRST CLASS SERVICE, COAST TO COAST

14 NON-LINEAR PROCESS FIRST CLASS SERVICE, COAST TO COAST ER G TOGETHE WORKING LAWYERS, LOYERS & L EMPL

SO HOW DOES INFORMATION MANAGEMENT FIT IN? MANAGEMENT FIT IN?  Significant feature in preparing for litigation ER G TOGETHE  Helps avert viable spoliation claims  Helps reduce ongoing litigation costs  Defensible mechanism for eliminating unused Defensible mechanism for eliminating n sed WORKING information  Less information = lower discovery costs LAWYERS,  Streamlines identification process LOYERS & L EMPL 15 FIRST CLASS SERVICE, COAST TO COAST

INFORMATION MANAGEMENT HAS ADDED BENEFITS ADDED BENEFITS  Business needs ER G TOGETHE  Necessary information is available for use  Reduces costs of undisciplined storage  Regulatory requirements  Regulatory requirements WORKING  FLSA & State Wage/Hour  FMLA LAWYERS,  EEO  OSHA/MSHA  IRCA LOYERS & L  ERISA/COBRA/HIPAA EMPL 16 FIRST CLASS SERVICE, COAST TO COAST

FEATURES NEEDED TO OPTIMIZE INFORMATION MANAGEMENT INFORMATION MANAGEMENT  Data mapping ER G TOGETHE  Adequate infrastructure  Clear “use” policies WORKING  Communication methods  Equipment  Data export and storage Data export and storage LAWYERS,  Comprehensive records retention program  Record management procedures  Record management procedures LOYERS & L  Training, review and housecleaning EMPL 17 FIRST CLASS SERVICE, COAST TO COAST

ADDED OPTIMIZATION  Consider litigation at each step ER G TOGETHE  Centralize storage  Build-in preservation solutions WORKING  Avoid data proliferation A id d t lif ti  Maintain oversight of application development  Include liaison role in IT job description j p LAWYERS,  Phillip M. Adams v. Dell, Inc., 2009 WL 910801 (D. Utah 2009) LOYERS & L EMPL 18 FIRST CLASS SERVICE, COAST TO COAST

IDENTIFICATION  Common information requests in employment ER G TOGETHE litigation  Personnel data and “files” WORKING  Payroll P ll  Policies and procedures  Decisional documentation LAWYERS,  Audits, surveys and training  Other claims and litigation LOYERS & L  Investigatory materials EMPL 19 FIRST CLASS SERVICE, COAST TO COAST

IDENTIFICATION  Common information requests in employment ER G TOGETHE litigation (cont’d) that are more troublesome  Communications  Person-to-person (e-mail, instant messaging, tweeting) Person to person (e mail instant messaging tweeting) WORKING  Mass (web-pages, articles, webinars)  Systems and information infrastructure LAWYERS,  Hidden or alternative use data LOYERS & L EMPL 20 FIRST CLASS SERVICE, COAST TO COAST

PRESERVATION Triggering event: “litigation or reasonable anticipation thereof”  ER G TOGETHE What causes “reasonable anticipation”?   Charge ( Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”)) WORKING  Demand letter ( Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494 (D.Md. 2009) ; Major Tours, Inc. v. Colorel , 2009 WL 2413631 (D.N.J. 2009))  Internal complaint ( Broccoli v. Echostar Communications  Internal complaint ( Broccoli v Echostar Communications LAWYERS, Corporation , 229 F.R.D. 506 (D.Md. 2005))  Consensus belief ( Zubulake IV ) LOYERS & L  Widespread litigation in industry ( Phillip M. Adams v. Dell, Inc.) D ll I ) ( EMPL 21 FIRST CLASS SERVICE, COAST TO COAST

PRESERVATION Pension Committee of the University of Montreal ER Pension Plan v Banc of America Securities* Pension Plan v. Banc of America Securities* — G TOGETHE key components of preservation  Written litigation hold WORKING  Sent when litigation becomes reasonably foreseeable  Sent to everyone who may have relevant information LAWYERS,  Define relevant information broadly  Suspend “auto-delete” LOYERS & L * 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) EMPL 22 FIRST CLASS SERVICE, COAST TO COAST

PRESERVATION NOTICES  Written ER G TOGETHE  Identify “Key Players” WORKING  Include IT LAWYERS, LOYERS & L EMPL 23 FIRST CLASS SERVICE, COAST TO COAST