Discovery Resources

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.