The Laguna Beach eDiscovery Retreat is part of The eDiscovery Retreats series put together by Chris La Cour. The venue was beautiful, with carefully maintained gardens and flowers, and a relaxing view of the ocean. You can see all of my photos of the resort and the surrounding area here.
There was a reception in the garden area on Sunday night. Monday started with a continental breakfast and a keynote address by Kimberly Newman of Walmart. There were five hour-long time slots for sessions during the remainder of the day. Each time slot had two simultaneous sessions to choose from. Sessions featured several experts who were guided by questions asked by a moderator and sometimes the audience. Lunch was held on the lawn with a view of the ocean.
My notes on the sessions I attended are below. Keep in mind that I could only attend half of them because there were simultaneous sessions, and my notes only cover a small fraction of the information presented.
Keynote Address: eDiscovery Maturity and The Road to ASCLD Accreditation – Walmart has 50 petabytes of data, 10,000 IT associates (employees), 10 million emails per day, litigation holds on 100,000 associates, 9,000 pending claims, and typically 200 pending class actions. Some data is on hold for a decade or more. Should have ASCLD accreditation by November. They hope it will reduce the risk of sanctions and establish good faith efforts. They block access to social networks from corporate computers. Processes are different overseas due to differing laws (e.g., ownership of email).
Implementing a Successful In-House eDiscovery Program or Strategy – Difficult if you don’t have support from top management. Having a crisis is the quick way to get buy-in. Pfizer has a specific contact for each outside counsel and meetings to discuss e-discovery initiatives. Chevron chooses e-discovery systems and requires outside counsel to use them. They have written expectations for outside counsel. Google is careful to not allow outside counsel to do things that have implications down the road. Use service providers because the cost of keeping stuff behind the firewall is huge. Regarding the service provider relationship, Chevron has a long vetting process, and gives them data and tests the result. Will the provider be around in three years? Have an SLA and a good contract. Establish a single point of contact. Make sure billing systems can match up. Pfizer is asking for fixed fee (not per-GB). Kia looks at references. Important to compare apples-to-apples on price — send pricing spreadsheet to vendors. Google wants vendors to tell them right away if there is any problem.
A Frank Conversation About the Meaning of Possession, Custody & Control – did not attend.
Organizing the Best eDiscovery “Team” – did not attend.
eDiscovery Goals – Don’t forget about the info your own client has. 72% of e-discovery is review. Less than 1% (or was it 0.1%?) of produced documents are marked for exhibit. Story of a firm that gave 1,200 requests for production (trying to harass into settlement). Another story of a firm that was sanctioned for overproducing to overwhelm the opponent. Don’t wait until the 26(f) to do due diligence. Cooperation may mean educating the other side. Judges don’t like discovery motions.
Ethics & Malpractice – did not attend.
EDD Project Management & Team Roles – More is being done in-house, so outside counsel has less knowledge about the case, which makes strategy hard. Outside counsel must certify the result, so communication is important. Company may contract with vendor directly to negotiate a price for e-discovery services (but outside counsel may have more knowledge about pricing in the market), so outside counsel may have to learn the chosen vendor’s process. Document review performed by a staffing agency can also result in outside counsel having less info about the case. Choose reviewers based on their expertise (privilege, pharmaceuticals, etc.). Look at reviewer speed — are they going too fast or too slow? Maybe they are not really trying, or are confused, or maybe they happen to be getting especially long/short documents.
Search/Coding (Including Predictive Coding)/Analysis – I was on the panel, so I did not take notes.
Evolving Challenges in Electronic Discovery and Computer Forensics – If you don’t collect early, you may lose the opportunity to do it later (e.g., you can’t just copy a NAS). Collecting from Dropbox or iCloud – must be careful about ownership (personal vs. corporate). Dropbox stores encrypted cache on local computer. Dropbox keeps history log showing accesses – might find deletions. Use metadata to show that email or office document was forged. PDFs may retain info (botched redaction – just remove the black square hiding the text). Time stomping is changing the creation time for a file. Suspect time stomping when many of the documents have “000” for the milliseconds part of the time. Shellbags capture information about what is seen in Windows Explorer.
Use of Discovery Data – did not attend.