e-Discovery Conference: Some of What You Missed

In mid-October, e-Discovery Law & Strategy's parent company, ALM, joined with the Business Development Institute (BDI) to offer ALM's first e-discovery conference in New York City. The faculty featured several e-discovery luminaries ' here are some highlights in case you missed it.

U. S. Magistrate Judge James C. Francis IV ' who wrote the seminal decision of Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) ' started his keynote address by stating his concern that the debate over e-discovery issues has become “unnecessarily partisan.” In his eyes, plaintiffs ask for too much too often, and defendants are too possessive of their clients' material. Both sides, he said, need to move toward the middle ground. e-Discovery issues need not take the time and expense they have, if both sides agree to resolve issues amicably.

Judge Francis also commented on the proposed amendment to Federal Rule of Civil Procedure 34(b) on format. The proposed rule states that if the requesting party doesn't specify the format of the material, it must be turned over in the format in which it is normally kept. Judge Francis would like to see that rule go further, by making the default format an electronic version with as little metadata as possible.

He also pointed out that there was no rule proposal on cost-shifting, and stated that a judge might be more willing to expand discovery if he or she has the ability to place some of the cost burden on the requesting party.

Mike Arkfeld, author of Electronic Discovery and Evidence (2nd ed.), and who served as conference chair, started his presentation on e-discovery trends with a rather startling statistic: 75% of AmLaw 200 firms are not qualified to handle complex EDD matters. The stat came from a survey conducted in September by EDDix, an independently managed company that conducts research and watches over the e-discovery industry. (Membership is free to those in the e-discovery market, in exchange for agreeing to participate in the firm's research. For more info., visit www.eddixllc.com.)

Arkfeld commented that the cost-allocation debate should eventually go away, if the technology involved in e-discovery is allowed to advance.

One of the highlights of the conference was Adam Cohen's presentation. Cohen, a partner with Weil, Gotschal & Manges LLP, called for companies to adopt a sound information management policy (IMP). Such a policy must:

• Document the reasons for its implementation;
• Define the information covered and how that information is to be treated;
• Allocate individual implementation responsibilities ' accountability is key to enforcement;
• Establish a monitoring and enforcement plan ' and follow it. “Don't implement an IMP if you don't intend to follow it.”; and
• Establish litigation hold procedures.

Whitney Adams of Cricket Technologies, a member of e-Discovery Law & Strategy's Board of Editors, reviewed the current case law as it relates to spoliation, preservation orders and privilege (including “claw-back” agreements). When discussing Zubulake V, she echoed Cohen's caution that “merely putting a litigation hold in place is not enough ' you have to monitor it and make sure your client is following it.” She also noted that the waiver of attorney-client privilege has become a huge issue.

Other topics covered at the conference included the lifecycle for processing electronic information, by Chris Paskach of KPMG, and how to minimize the cost of e-discovery, by Kroll Ontrack's Jason Straight. Straight suggested, among other things, scoping out the project early with as many details as possible, negotiating with the requesting party and employing culling techniques.

ALM is planning two e-Discovery Congress sessions for 2005 ' one in the spring in San Francisco, and a return to New York next October. We'll be sure to let you know more as those dates approach.

' Steven Salkin, Esq., Managing Editor

In mid-October, e-Discovery Law & Strategy's parent company, ALM, joined with the Business Development Institute (BDI) to offer ALM's first e-discovery conference in New York City. The faculty featured several e-discovery luminaries ' here are some highlights in case you missed it.

U. S. Magistrate Judge James C. Francis IV ' who wrote the seminal decision of Rowe Entertainment, Inc. v. William Morris Agency , 205 F.R.D. 421 (S.D.N.Y. 2002) ' started his keynote address by stating his concern that the debate over e-discovery issues has become “unnecessarily partisan.” In his eyes, plaintiffs ask for too much too often, and defendants are too possessive of their clients' material. Both sides, he said, need to move toward the middle ground. e-Discovery issues need not take the time and expense they have, if both sides agree to resolve issues amicably.

Judge Francis also commented on the proposed amendment to Federal Rule of Civil Procedure 34(b) on format. The proposed rule states that if the requesting party doesn't specify the format of the material, it must be turned over in the format in which it is normally kept. Judge Francis would like to see that rule go further, by making the default format an electronic version with as little metadata as possible.

He also pointed out that there was no rule proposal on cost-shifting, and stated that a judge might be more willing to expand discovery if he or she has the ability to place some of the cost burden on the requesting party.

Mike Arkfeld, author of Electronic Discovery and Evidence (2nd ed.), and who served as conference chair, started his presentation on e-discovery trends with a rather startling statistic: 75% of AmLaw 200 firms are not qualified to handle complex EDD matters. The stat came from a survey conducted in September by EDDix, an independently managed company that conducts research and watches over the e-discovery industry. (Membership is free to those in the e-discovery market, in exchange for agreeing to participate in the firm's research. For more info., visit www.eddixllc.com.)

Arkfeld commented that the cost-allocation debate should eventually go away, if the technology involved in e-discovery is allowed to advance.

One of the highlights of the conference was Adam Cohen's presentation. Cohen, a partner with Weil, Gotschal & Manges LLP, called for companies to adopt a sound information management policy (IMP). Such a policy must:

• Document the reasons for its implementation;
• Define the information covered and how that information is to be treated;
• Allocate individual implementation responsibilities ' accountability is key to enforcement;
• Establish a monitoring and enforcement plan ' and follow it. “Don't implement an IMP if you don't intend to follow it.”; and
• Establish litigation hold procedures.

Whitney Adams of Cricket Technologies, a member of e-Discovery Law & Strategy's Board of Editors, reviewed the current case law as it relates to spoliation, preservation orders and privilege (including “claw-back” agreements). When discussing Zubulake V, she echoed Cohen's caution that “merely putting a litigation hold in place is not enough ' you have to monitor it and make sure your client is following it.” She also noted that the waiver of attorney-client privilege has become a huge issue.

Other topics covered at the conference included the lifecycle for processing electronic information, by Chris Paskach of KPMG, and how to minimize the cost of e-discovery, by Kroll Ontrack's Jason Straight. Straight suggested, among other things, scoping out the project early with as many details as possible, negotiating with the requesting party and employing culling techniques.

ALM is planning two e-Discovery Congress sessions for 2005 ' one in the spring in San Francisco, and a return to New York next October. We'll be sure to let you know more as those dates approach.

' Steven Salkin, Esq., Managing Editor