E-Discovery Blog

The NYS Bar recently presented a program on "Reasonable, Ethical and Defensible E-Discovery: A Practical Approach." Our NYS Bar E-Discovery Committee sponsored this event, together with the CLE Committee and the Law Practice Management Committee. This program was organized by Connie Boland of Nixon Peabody, Adam Cohen of Ernst & Young, Sandra Rampersaud of Cravath Swaine & Moore and Jessica Perazzelli Ross of Latham & Watkins.

To a packed house graciously accommodated by Latham & Watkins, three panels comprised of the nation's E-Discovery gurus presented. The first group (Connie Boland of Nixon Peabody, Christopher Costello of Winston & Strawn, Jessica Ross of Latham & Watkins and Farrah Pepper, the GC of GE) spoke about "Model E-Discovery Orders." They introduced the audience to the model e-discovery rules in use in Federal Court (SDNY) and State Court (NY, Commercial Division) and explained how to use such rules in a practical manner in one's practice.

The second group of panelists (Steven C. Bennett of Jones Day, Judge Ira Warshawsky (now with Meyer Suozzi) and Professor Patrick Connors of Albany Law School) spoke about "Ethics in E-Discovery." The primary areas covered were lawyer competence ("get up-to-speed on e-discovery and tech issues, if relevant to your case"); inadvertent disclosure ("enter into a claw-back agreement"); and supervision of non-lawyers ("you're still responsible").

The third panel covered the "Role of E-Discovery Counsel - Perspectives from the Bench and Bar." The esteemed panelists were Adam Cohen of Ernst & Young, Sandra Rampersaud of Cravath, Swaine & Moore, Andrew Evan Roth of SNR Denton, Judge Frank Maas of the SDNY and Judge Ronald Ellis of the SDNY. The premise was that there's a crucial role for a new breed of attorney specialists for law firms and corporate legal departments, that of "E-Discovery Counsel" or the like, who can guide firms and companies through the quick-changing maze of E-Discovery law and compliance.

The above sheds just a ray of light on the incredible practical advice given to the Bar by these learned panelists. For a more fulsome explanation, feel free to contact the State Bar for the webinar information. Also, the course materials are linked here.

For a pithy primer on the processing portion of E-Discovery, please refer to the linked article by Adam Cohen, Co-Chair of our E-Discovery Committee and Principal with Ernst & Young. As explained by Adam, processing the data reduces the volume of data to be reviewed, which saves substantial sums of money. This reduction is achieved by various means, including "de-duplication," identifying similar or common concepts among the documents, indexing the documents, and applying search terms to the documents to weed out irrelevant data. Adam advises that all steps taken to reduce the volume of data should be properly documented to "inform decision making."

One of the hot topics in ediscovery is the extent to which information contained in social media, such as Facebook, LinkedIn and Twitter, is discoverable.  Obviously, the inherent conflict is between the posting party's right to privacy and his adversary's right to discover relevant evidence, such as when a personal injury plaintiff posts photos of himself contradicting the alleged extent of his injuries.

As shown in the linked article by Mark Berman, Secretary of the NYS Bar's E-discovery Committee, the Courts do not allow unfettered access into a party's social media accounts.  So far, the Courts' approach has been to first permit a party to uncover his adversary's public postings prior to his deposition and, then, to inquire about public and private postings at the deposition.  Courts have even conducted in camera inspections of a party's postings to ensure that irrelevant private date remains private.

The Sedona Conference Working Group on Electronic Document Retention and Production recently released its 2012 Public Comment Draft of "The Sedona Conference Commentary on Ethics and Metadata." The Working Group stated that it drafted guidelines offering "a clear understanding of what we mean by 'metadata,' what standards of technical sophistication we hold attorneys to, and whether the context of the attorneys' activity is routine client representation or litigation." The commentary is intended to "provide practical guidance to attorneys in their day-to-day practice and to the judges and ethics opinion writers who must untangle these often complicated knots."

The commentary and its implications are explained fully in the linked article by Ignatius Grande, Senior Discovery Attorney/Director of Practice Support at Hughes Hubbard & Reed LLP and member of our E-Discovery Committee.

The First Department clarified which party is to pay for producing ESI. Specifically, in U.S. Bank N.A. v. Green Point Mortgage Funding Inc., the First Department stated that the producing party bears the ESI production cost subject to cost shifting based on the equitable factors set forth in Zubulake v. UBS Warburg LLC.

The U.S. Bank holding is explained fully in this NYLJ article (PDF) by Mark A. Berman, a member of Ganfer & Shore and member of our E-Discovery Committee.

Our E-Discovery Committee recently prepared a report entitled "Best Practices in E-Discovery in New York State and Federal Courts," which was published by the New York State Bar. Our intent in preparing this report was to provide practical advice to State and Federal practitioners concerning the preservation, collection and production of ESI. The Report sets out 14 specific "best practices," together with commentary and illustrative examples.

Also, a pilot project for complex civil cases has been implemented in the SDNY covered among other things, e-discovery. In connection with the Rule 16 conference, the pilot project requires a joint electronic discovery submission and proposed order.

The recently published "Best Practices" publication and SDNY pilot project are explained in detail in this NYLJ article (PDF) by Mark A. Berman, a member of Ganfer & Shore and member of our E-Discovery Committee.

Earlier this year, the First Department weighed in on the issue of when ESI must be preserved. Specifically, in VOOM HD Holdings LLC v. EchoStar Satellite LLC, the First Department held that "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the prevention of relevant documents."

VOOM is more fully explained in this article (PDF) by Mark A. Berman, a member of Ganfer & Shore and member of our E-Discovery Committee. This article also discusses Scarola Ellis LLP. v. Padeh, where the Court found that a party's claim that there was no additional ESI to be produced needed to be supported by a detailed affidavit from a computer expert.