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e-Discovery: A Contact Sport presented by BRIAN O’BLENESS DON RAMSAY STINSON MORRISON HECKER LLP e-Discovery: A Contact Sport presented by BRIAN O’BLENESS DON RAMSAY STINSON MORRISON HECKER LLP April 11, 2012 1 © 2012 Stinson Morrison Hecker LLP Stinson. com

INTRODUCTION Today’s Agenda • Recent e-Discovery Developments • Practical Suggestions • E-Discovery for Investigations INTRODUCTION Today’s Agenda • Recent e-Discovery Developments • Practical Suggestions • E-Discovery for Investigations 2 © 2012 Stinson Morrison Hecker LLP Stinson. com

Recent Developments • E-Discovery cost awards • Proportionality • Document review • Sanctions Recent Developments • E-Discovery cost awards • Proportionality • Document review • Sanctions

Cost Awards • $500, 000 in e-discovery costs awarded to defendants: In re Aspartame Cost Awards • $500, 000 in e-discovery costs awarded to defendants: In re Aspartame Antitrust Litigation, No. 2: 06 -CV-1732, 2011 (E. D. Penn. Oct. 5, 2011). • $370, 000 awarded in e-discovery costs awarded to defendant in Tibble v. Edison International, 2011 Lexis 94995 (C. D. Cal. July 8, 2011). 4 © 2012 Stinson Morrison Hecker LLP Stinson. com

In Re: Aspartame Antitrust Litigation • • • tape restoration, imaging hard drives, storage In Re: Aspartame Antitrust Litigation • • • tape restoration, imaging hard drives, storage of data, deduplication, data extraction and processing • OCR’ing paper documents, • the creation of a litigation database, • keyword searches • privilege screening (i. e. , keywords for privileged documents) • data hosting • technical support • project management • the production costs for the creation of load files

Costs Limited • Race Tires Amer. , Inc. v. Hoosier Racing Tire, Corp. --- Costs Limited • Race Tires Amer. , Inc. v. Hoosier Racing Tire, Corp. --- F. 3 d ---, 2012 WL 887593 (3 d Cir. Mar. 16, 2012). Award limited to cost of scanning hard copy, converting native documents to TIFF and copying VHS to DVD. 6 © 2012 Stinson Morrison Hecker LLP Stinson. com

Cost Shift / Incentive Shift • Lubber, Inc. v. Optari • LLC, 2012 WL Cost Shift / Incentive Shift • Lubber, Inc. v. Optari • LLC, 2012 WL 899631 (M. D. Tenn. March 5, 2012). It is this Magistrate Judge's experience and the view of a number of economists who have studied this issue that where the requesting party bears a part of the costs of producing what they request, the amount of material requested drops significantly. 7 © 2012 Stinson Morrison Hecker LLP Stinson. com

Proportionality 8 © 2012 Stinson Morrison Hecker LLP Stinson. com Proportionality 8 © 2012 Stinson Morrison Hecker LLP Stinson. com

Proportionality Pippins v. KPMG, LLP, 2012 WL 370321 (S. N. D. Y. Feb. 3, Proportionality Pippins v. KPMG, LLP, 2012 WL 370321 (S. N. D. Y. Feb. 3, 2012). § Cost $ 1, 500, 000 (2, 500 hard drives @ $600 each) § Benefit of preservation unknown 9 © 2012 Stinson Morrison Hecker LLP Stinson. com

Document Review Context Document Review Malpractice J-M Manufacturing Co. Inc. v. Mc Dermott Will Document Review Context Document Review Malpractice J-M Manufacturing Co. Inc. v. Mc Dermott Will and Emory, L. A. Sup. Ct. C. D. Cal. , No. BC 462832 MD JS-6. Judges about search terms United States v. O’Keefe, 537 F. Supp. 2 d 14 (D. D. C. 2008). “[F]or lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. ”

Predictive Coding • Moore v. Publicis Group and MSL Group, Case No. 11 Civ. Predictive Coding • Moore v. Publicis Group and MSL Group, Case No. 11 Civ. 1279 (February 2012, S. D. N. Y. ). Counsel no longer have to worry about being the "first" or "guinea pig" for judicial acceptance of computer-assisted review. . . Computer-assisted review can now be considered judicially-approved for use in appropriate cases. • Kleen Prods. , LLC v. Packaging Corp. of Am. , No. 10 C 5711 (March 2012, N. D. Ill). – Can the court order use of predictive coding? 11 © 2012 Stinson Morrison Hecker LLP Stinson. com

Document Review Processes Linear Review Search Experts 12 Predictive Coding © 2012 Stinson Morrison Document Review Processes Linear Review Search Experts 12 Predictive Coding © 2012 Stinson Morrison Hecker LLP Stinson. com

Proportionality and Predictive Coding Da Silva Moore v. Publicis Group and MSL Group, Case Proportionality and Predictive Coding Da Silva Moore v. Publicis Group and MSL Group, Case No. 11 Civ. 1279 ( February 2012, S. D. N. Y. ). In large-data cases like this, involving 13 over three million emails, no lawyer using any search method could honestly certify that its production is "complete" – but © 2012 Stinson Morrison Hecker LLP Stinson. com

Sanctions • In re Delta/Air. Tran Baggage Fee Antitrust Litig. , ---F. Supp. 2 Sanctions • In re Delta/Air. Tran Baggage Fee Antitrust Litig. , ---F. Supp. 2 d---, 2012 WL 360509 (N. D. Ga. Feb. 3, 2012). • • 14 In-house counsel failed to confirm that all custodians data had been loaded into review tool Counsel not aware of box of older back-up tapes © 2012 Stinson Morrison Hecker LLP Stinson. com

Litigation vs. Investigations Different Goals: • Litigation e-Discovery = satisfy discovery rules • Investigations Litigation vs. Investigations Different Goals: • Litigation e-Discovery = satisfy discovery rules • Investigations = usually to determine wrongdoing, and by whom; often only internal 15 © 2012 Stinson Morrison Hecker LLP Stinson. com

ESI in Investigations • Issue: Because of nature of investigations, some evidence may be ESI in Investigations • Issue: Because of nature of investigations, some evidence may be hidden or tampered • Implications: • 16 – (1) May need to collect quickly and without employee knowledge; – (2) Will need to document absence, destruction and tampering of ESI © 2012 Stinson Morrison Hecker LLP Stinson. com

Forensics • Forensic Collection • Forensic Analytics • Mobile Phones and PDAs • 17 Forensics • Forensic Collection • Forensic Analytics • Mobile Phones and PDAs • 17 © 2012 Stinson Morrison Hecker LLP Stinson. com

Explosive Growth • Text Messages – have tripled over the past 3 years to Explosive Growth • Text Messages – have tripled over the past 3 years to a staggering 6. 1 trillion in 2010 (close to 200, 000 text messages per second) • International Telecommunication Union (2011) • Instant Messages – By 2015, a predicted 84 billion instant messages per year will be sent with nearly half as enterprise related • Radicati Group Inc. (2010 -11) – By 2013, it’s predicted 95% of workers in leading global companies will use IM to interface for real-time communications • Gartner Inc. (2007) 18 © 2012 Stinson Morrison Hecker LLP Stinson. com

Alternative Communications • Issue: alternative communication channels are often important in investigations: – – Alternative Communications • Issue: alternative communication channels are often important in investigations: – – Personal e-mail accounts Texts Chats/Instant messages FB, Twitter, etc. • Implication: May need to collect alternative channels 19 © 2012 Stinson Morrison Hecker LLP Stinson. com

The Need for Speed • Issue: Typically investigations are faster-paced than litigation – For The Need for Speed • Issue: Typically investigations are faster-paced than litigation – For lots of reasons, nearly every type of investigation has pressure on it to be done as quickly as possible • Implication: Linear review of documents by lawyers is not going to cut it 20 © 2012 Stinson Morrison Hecker LLP Stinson. com

Data Analytics • Data Analysis can move an investigation forward very quickly • Knowing Data Analytics • Data Analysis can move an investigation forward very quickly • Knowing communications patterns yielded from the larger set of data can be an invaluable tool 21 © 2012 Stinson Morrison Hecker LLP Stinson. com

Other Challenges • Work Flow / Security: – Often several stakeholders in investigation: internal Other Challenges • Work Flow / Security: – Often several stakeholders in investigation: internal counsel, external counsel, internal auditor, corporate security officer, executives, audit committee, etc. – Each parties needs access to different preserved materials at different times • Privilege / Work Product 22 © 2012 Stinson Morrison Hecker LLP Stinson. com

Other Challenges • Post-Collection Preservation: – Appropriately preserve the collected data for purposes of Other Challenges • Post-Collection Preservation: – Appropriately preserve the collected data for purposes of the investigation and follow on activities – Without further burdening current records retention policy or procedure • Defensibility: – Always possible same data will be involved in follow-on lawsuit or outside investigation – Thus, a forensically solid, reportable process is important 23 © 2012 Stinson Morrison Hecker LLP Stinson. com

Cross-Border Issues • Privacy Issues – Compliance with cross-border transfer rules – Consents for Cross-Border Issues • Privacy Issues – Compliance with cross-border transfer rules – Consents for transfer of personal data – Integrity and security of collection and handling of personal data – Proportional collection of personal data • Multi-Language Documents 24 © 2012 Stinson Morrison Hecker LLP Stinson. com

Foreign Review • In-Country Review • Hubbing in country with restrictive data laws 25 Foreign Review • In-Country Review • Hubbing in country with restrictive data laws 25 © 2012 Stinson Morrison Hecker LLP Stinson. com

Recap • Have a detailed Work Plan – Review key considerations about issues and Recap • Have a detailed Work Plan – Review key considerations about issues and individuals involved – Consider geography issues – Covert or overt investigation – Internal resources – Are forensics required – Collection, processing, security and review protocols 26 © 2012 Stinson Morrison Hecker LLP Stinson. com