Discovery Resources

Discussion leaders Liz Schimmel from Halliburton, Tina Gibson from Devon Energy, Deidre Paknad, CGOC founder, and Amir Alavi of Ahmad, Zavitsanos & Anaipakos P.C. discussed strategies and practical advice to reduce legal hold mis-steps, get every efficiency possible in preservation and discovery, apply case and discovery strategies that lower litigation costs, and identify and address the root causes of high ediscovery costs.

Like many companies, Swiss pharmaceutical giant Novartis is planning to migrate some data to a "dedicated cloud" environment. Pam Roberts, Head of Legal Data Services, shares the diligence checklist she used to identify challenges and related solutions for electronic discovery in this environment.

This meeting featured discussion leaders Robert Levy of ExxonMobil, Tina Gibson of Devon Energy, Deidre Paknad, CGOC founder, and Amir Alavi of Ahmad, Zavitsanos & Anaipakos P.C.. They discussed strategies and practical advice to reduce legal hold mis-steps in light of Judge Rosenthal's Rimkus decision and Judge Schiendlin's Pension decision, best manage a sudden increase in incoming requests and claims, get every efficiency possible in preservation and discovery to scale strained staff yet ensure a rigorous process, prevent oversight and error with internal process controls and transparency between legal and IT, and efficiently monitor your discovery process to control cost and mitigate risk.

Selecting software is really the first rather than the last step in the project. To ensure that you get the value of the software you select now and for years to come, the implementation must:

• Meet the needs of stakeholders
• Include them in the process before “go live”
• Enable the process integrity improvements you want to make
• Ensure that upgrades are seamless as the product is enhanced over time

Achieving these goals requires a combination of software and expertise; your software vendor should bring expertise that compliments the expertise on your own IT and legal teams. The software should meet your immediate needs and anticipate future stages in your initiative, and the vendor should have a track record of meeting customer needs over time.

If this is your first enterprise software purchase and implementation, it’s important to extend your selection considerations to include the unique implementation needs at your company and the expertise of the partner. To understand what may be best in your company ask the questions addressed in this advisory.

Kim Borzick, Legal eDiscovery IT Manager at Abbott, shares her processes and experience in rigorous, efficient data collections.

The IMRM is as important in information governance as EDRM has been in ediscovery. Get an introduction to the Information Management Reference Model to learn more about how it can galvanize dialogue and action across legal, RIM and IT stakeholders.

Presenting the business case for legal hold and discovery workflow software to IT, business and finance execs is more productive when framed in familiar business — rather than legal — terms.

Often, the legal department will consider only its processes for legal holds as it evaluates legal hold software. When legal holds is viewed as a legal department issue, it is easy to lose sight of the fact that the data on hold is everywhere except the legal department! The IT department is a key stakeholder and legal is highly dependent on IT's ability to manage data on hold and perform collections, yet they are too often not at the table when criteria for legal hold software are developed. As partners in the process and as the stewards of data actually subject to legal holds, IT requirements are important considerations in any legal hold software purchase.

Read the 5 Considerations for Every IT Department, find lessons learned from the CGOC community, and get a convenient requirements checklist.

By Thomas M. Lahiff, Director, PricewaterhouseCoopers and Deidre Paknad, President & CEO, PSS Systems

This white paper from two recognized experts in ediscovery distills Judge Scheindlin's 86-page opinion into a practical check list for corporate counsel.

Traditional approaches to controlling discovery costs include negotiating rates with outside counsel and vendors. In this session, practice leaders provided insight into partnering and collaborating with outside counsel and vendors to control and reduce litigation costs.

Tom Lahiff, Director, PricewaterhouseCoopers

Cost is the central consideration in the “fight or settle” analysis but good forecasts are rarely available so resolution decisions are made later or negotiation opportunities are lost. This session focuses on decision making and compelling cost shifting arguments to reduce litigation costs.

Deidre Paknad, President & CEO, PSS Systems

Over the past few years, e-discovery has ballooned to over 50% of litigation costs only to have matters settle 97% of the time. Discovery cost has gone from a small portion to the vast majority of litigation cost, but cost forecasting practices haven’t kept pace with this sea change. This session focuses on the changing dynamics and how your litigation process can be modernized to incorporate continuous cost control, routinely identify opportunities to do less e-discovery and control fiscal period cost impacts.

Paige Cole, Legal Specialist, The Williams Companies

The root cause of high discovery costs is too much data, however the only way to defensibly and reliable dispose of data is to ensure that Legal, IT, and Records are aligned. This case study will provide best practices and processes for defensibly disposing of data.

by Deidre Paknad, President and CEO, PSS Systems
Yet another judge with e-discovery expertise is warning litigants about reliance on search in e-discovery. Magistrate Judge Peck from the Southern District of New York in an opinion dated March 19, 2009, issues what he terms “a wake up call” about “the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information”.

The role of the head of litigation and the litigation team in forecasting and managing discovery costs is more important than ever in the current economic environment. Providing accurate forecasts and reducing cost while facing greater uncertainty and potentially higher volumes of litigation is a daunting task. This article explores ways to assess the likely impact of the economic slowdown on your litigation volume and expense, and recommendations on how to control litigation and discovery costs, and provide the CFO and CEO with more accurate, fact-based forecasts of those costs.

Jay Brudz, Senior Corporate Counsel, GE

Implementing good retention practices and information hygiene is often met with resistance from business groups and even the legal department. By calculating the true loaded cost of information to the corporation -- including the cost to manage, discover and litigate it -- companies can make much better cost/benefit decisions. Moreover, transparently allocating the real cost of information can reduce unnecessary discovery budget surprises improve allocation of discovery costs.

This working group focused on the IT and legal departments challenges' in preserving, collecting, and managing data in a complex corporate setting.  Both departments need to be in lock step because the legal department has the obligations while IT has the data.  The materials include discussion cards and key takeaways.

In this working group, two key conflicts were explored to help legal departments reduce risk and cost.  The first conflict was the inherent differences in IT and Legal department points of view and processes which presents a tremendous challenge to preserving data efficiently and reliably.  The second conflict was the conflict of law between US discovery obligations and EU privacy laws.  With specific prohibitions against searching and transporting employee and customer data, companies have very tough choices when US litigation or discovery encompasses data beyond our shores.

Global companies face a myriad of laws that dictate how they handle information, specifically how long htey must retain information, when they must preserve it as evidence, what uses are permissible while in their possesion, and how and under what conditions it may be transported. Unfortunately, while the legal staff has legal and professional obligations under the law for a broad array of information, they do not have custody or control of that information - this is the domain of corporate information technology management (IT) organizaitons.

Eric Saltzman explores the head of litigation as a valuable business partner to the rest of the executive team in this article written to explain how historical data can be used to predict and control discovery costs. He explains the concepts and methodology for applying probability based forecasting, defines and recommends the data to consider in forecasting discovery costs, and proposes a model for analyzing the data and creating accurate forecasts of discovery costs.

Kevin Brady and Judge Paul Grimm provide a flowchart of the admissibility of electronic evidence. They explain when evidence is relevant, authentic, hearsay, and the exceptions that apply, as well as practice tips.

Eric Saltzman, CFO, PSS Systems

Predicting discovery costs using a "litigation funnel" methodology -- the same techniques applied to sales forecasting. Corporate legal teams have a wealth of data on the likelihood of matters progressing through various stages of litigation, the volume of potentially discoverable information associated with various types of matters and the costs associated with culling, reviewing and producing information. Using this data in conjunction with a dedicated tool for managing the "litigation funnel" will yield better predictability on discovery costs, improve visibility on the timing and nature of those costs, and the ability to reduce expenses.

Communication between the legal department, IT, records and business people is one of the biggest sources of legal risk. This paper touches on things legal can do to reduce misunderstandings in its communications.

Kevin F. Brady (Partner, Connolly Bove) breaks down Chief Magistrate Judge Paul Grimm's May 14, 2007, opinion in Lorraine v. Markel American Ins. Co., which sets forth the evidentiary pitfalls and solutions associated with ESI. After a detailed case summary Kevin provides practical tips for addressing ESI evidentiary issues.

Written when Ronald J. Hedges was a Magistrate Judge for New Jersey, Discovery of Digital Information covers everything from what digital information encompasses, to forms of production, to waiver of privilege, to spoliation. Ron provides suggestions to avoiding problems and discusses records retention programs.

The proposed Rule 502, Waiver on Attorney-Client Privilege and Work Product, is discussed as an action item in this report, along with the accompanying report to Congress and a separate report on selective waiver.

In this article Kevin discusses metadata and uses case law as his backdrop.  He uses the most comprehensive judicial analysis on the subject of whether metadata should automatically be produced in response to a discovery request - Magistrate Judge Waxse's September 29, 2005 opinion The Williams v. Sprint/United Management Co. Case. Kevin explains that the opinion demonstrates that because there exists very little guidance from the Courts or the regulatory agencies on the subject of the production of metadata, companies must do their own due diligence and be proactive in terms of knowing what data they have and how it is stored.

In The Corporate Counselor, Deidre Paknad (President & CEO, PSS Systems) discusses a compliance roadmap for the amended federal rules including early discovery, disclosure, and forms of production.