Lit Support Leaders SuperConference: Mike Arkfeld

LIVE BLOGGING FROM ESTRIN LITIGATION SUPPORT LEADERS SUPERCONFERENCE

Presentation -- "The Deadly Sins of E-Discovery" from Michael Arkfeld:

Highlights:

* We haven't seen the tip of the iceberg re: sanctions
* There is no simple turn-key "solution"
* We are moving thru huge change -- not just tech, but cultural, in firms, in families -- moving from analog to digital
* Change is difficult --

How did we get here?
85: desktop computer. 94 internet. 03: The awakening: Zubulake. 06: fed rules  08: second awakening - state rules. Most attys practice in states, not fed cts.

Unintended consequences of digital information -- information overload; reduced accessibility, no record management systems, etc. Businesses are not prepared for e-discovery. 80% of attys do NOT understand EDD. Isn't just the small firms.

Ricks: Legal and Ethical

* losing an otherwise winnable case

* imposition of court or agency sanctions

* disciplinary action

* malpractice

* Ineffective assistance of counsel

Qualcom - $8.5 million attys fees and costs; referred six attys to State Bar for ethical violations (suppressing evidence, misleading ct); required attys and Qualcom to develop a "comprehensive case review and enforcement of discovery obligations protocol"

Advice: don't hide mistakes, run to court and tell them.

Attys are responsible on how they handle ESI. Applies to software also. Demand certification from service providers that systems work as they are supposed to.

30% of all data is never printed on paper (at least 93% of all documents are created electronically - and that's an old study).

Volume of electronic data is overwhelming -- proposed rule of evidence 502 may put some limits on this. restricts use of inadverantly discovered data. Linguistic search tools and sophisticate search tools may constitute reasonableness as EDD evolves.

Understand metadata and its forms. 

Some bars are finding it unethical if you mine metadata from opposing counsel (bec attys don't understand the stuff)

Data not just on email -- voice mail, storage, hard drives, micro drives, RFID, smart cards, etc.

It is not sufficient to notify all employees of a lit hold and expect that the party will then retain and produce all relevant info (Zubulake). Duty to preserve. New. attys do not understand this.

Can't just send hold letter. Sanctions will be imposed.

Duty to preserve occurs when lit is anticipated -- when triggering event occurs. You have to suspend doc retention policy.

See: Coleman (aka Morgan Stanley)

Residential Funding Corp. v DeGeorge Fin Corp.

Amersham Biosciences Corp v PerkinElmer Inc.

-- Need to retain experienced counsel, implement retention doc policy, implment lit readiness system, issue solid lit hold and ensure complicance, ensure that 3rd ptys retain ESI

Understand the importance of EDD

understand it is evidence, act like counsel for your clients; educate!  jump in, get court involved if other side won't help.

MAnage risks with teamwork and technology. Lay foundation for working together and ensuring compliacne for the future. Implement collaborative system.

Integrate ESI into lit stages and discovery workflow.

Technology advancements will solve some of the discovery problems that have been caused by tehnology advancements.

Full schedule of Estrin Litigation Support Leaders SuperConference here: Download schedule_houston.doc