A primer for attorneys, legal professionals, board members and business people on what to be aware of with digital information and the process of electronic discovery.

1. 5
Things
You
Need
to
Know
about
eDiscovery
and
How
to
Implement
them
in
Your
Prac?ce
Kelly
Twigger,
Esq.
Boulder
County
Bar
Associa:on
February
21,
2014

2. Kelly
Twigger
Principal
ESI
AEorneys
Guest
lecturer,
Denver,
CU,
MarqueEe,Vanderbilt
Law
Schools
Milwaukee
Business
Journal:
40
Under
40
Class
of
2010
Kentucky
basketball
fana:c
Official
Host
Kentucky
Derby
First
Computer:
IBM
AS2
First
Blog
Post:
December
2007
First
Tweet:
August
2009

3. WHAT
IS
ESI
ATTORNEYS
• Law
firm
that
works
exclusively
in
eDiscovery
and
Informa:on
law
• Acts
as
outsourced
in-­‐house
counsel
for
firms,
businesses,
and
municipali:es
that
do
not
have
dedicated
eDiscovery
and
informa:on
law
counsel
• Creators
of
the
eDiscovery
Assistant™
app
for
iPad

4. Number
1:
Embrace
eDiscovery

7. Director
of
CIA
falls
from
grace
at
the
hand
of
his
paramour
and,
you
guessed
it,
ESI.

8. Federal
Government
is
aware
of
and
encouraging
policy
and
considera:on
of
issues
in
ESI.

9. Presiden:al
memo
outlines
need
to
meet
“legal
requirements
related
to
the
preserva:on
of
informa:on
relevant
to
li:ga:on.”

10. Florida
adopted
new
rules
effec:ve
July
5,
2012
Colorado
has
pilot
project
in
state
business
courts
in
Denver
Map
courtesy
of
Tom
Allman

11. PROPOSED
CHANGES
TO
RULES|FRCP
• Amendments
considered
following
corporate
backlash
of
expense
of
preserva:on
and
lack
of
knowledge
of
how
to
avoid
sanc:ons
• Proposed
changes
now
require
“bad
faith”
showing
for
sanc:ons
under
Rule
37
vs.
original
idea
of
providing
more
defini:on
to
Rule
26
• Timeline
for
effec:ve
date
is
likely
2015

12. EMBRACE
EDISCOVERY|WHAT
DOES
IT
MEAN?
• Stop
being
resigned
and
start
using
it
to
your
advantage
• Turn
the
funnel
on
its
head
–
look
for
what
you
want,
not
through
what
you
have
• The
world
stage
is
ALL
about
informa:on,
and
your
clients
need
you
to
have
their
back

13. Number
2.
eDiscovery
NOW
prevents
problems
later
AND
costs
less
$$$

14. WHAT
DOES
NOW
MEAN
?
• Immediate
considera:on
of
preserva:on
obliga:ons
upon
an:cipa:on
or
knowledge
of
li:ga:on
• Who
are
your
witnesses/custodians?
• Meaningful
meet
and
confer
• Make
decisions
based
on
the
data
you
have,
or
will
likely
have

15. WHAT
DOES
NOW
MEAN
?|
TALKING
EARLY
• What
types
of
ESI
do
each
party
have?
• Where
is
the
informa:on
stored?
• What
is
being
preserved?
Collected?
Reviewed?
• How
much
data
will
you
have
to
deal
with?
• What
are
the
best
approaches
to
cost
effec:vely
handle
and
review
the
data?
• Who
will
bear
the
costs?

16. IMPACT|
OBLIGATIONS
OF
COUNSEL
• Lawyers
can
no
longer
assume
that
a
request
for
all
documents
will
mean
that
the
opposing
aEy
understands
what
is
out
there
and
should
be
produced;
requests
must
be
specific
• Counsel
need
to
have
understanding
of
IT
systems
and
actual
costs
to
collect
and
produce
data
to
argue
undue
burden
and
know
true
purpose
behind
request
to
overcome
the
argument
• Need
to
educate
clients
on
the
challenges
of
ESI
before
li?ga?on
arises,
so
that
clients
are
prepared
• Evaluate
and
iden:fy
best
tools
for
handling
ESI
commiserate
with
value
of
maEer

17. CASE
STUDY|
ACTUAL
COST
SAVINGS
220
GB
12
GB
220
GB
3
GB
$375,000
$42,000

18. WHAT
YOU
NEED
TO
BE
DOING|
FORM
OF
PRODUCTION
FRCP
Rule
34(b)(1)(C):
The
Request
may
specify
the
form
or
forms
in
which
electronically
stored
informa:on
is
to
be
produced.
FRCP
Rule
34(b)(2)(d):
If
a
request
does
not
specify
a
form
for
producing
ESI,
a
party
must
produce
it
in
a
form
or
forms
in
which
it
is
ordinarily
maintained
or
in
a
reasonably
usable
form
or
forms,
and
a
party
need
not
produce
in
more
than
one
form.

19. WHAT
YOU
NEED
TO
BE
DOING|
FORM
OF
PRODUCTION

20.
Number
3:
Don’t
Ignore
Social
Media

21. SOCIAL
MEDIA|
WHAT
SITES
ARE
YOUR
CLIENTS
USING?

22. SOCIAL
MEDIA|
HOW
ARE
THEY
USING
IT?

23. KEY
DECISIONS|
GATTO
V.
UNITED
AIR
LINES
Court
ordered
adverse
inference
instruc?on
aZer
Plain?ff
seeking
disability
following
accident
on
tarmac
“accidentally”
deleted
his
Facebook
account.
Even
if
Plain:ff
did
not
intend
to
permanently
deprive
the
defendants
of
the
informa:on
associated
with
his
Facebook
account,
there
is
no
dispute
that
Plain:ff
inten:onally
deac:vated
the
account.
.
.
Neither
defense
counsel's
allegedly
inappropriate
access
of
the
Facebook
account,
nor
Plain:ff's
belated
efforts
to
reac:vate
the
account,
negate
the
fact
that
Plain:ff
failed
to
preserve
relevant
evidence.
In
light
of
all
of
the
above,
a
spolia:on
inference
is
appropriate.
Ga#o
v.
United
Air
Lines,
Inc.,
2013
WL
1285285
(D.N.J.
Mar.
25,
2013)

24. SOCIAL
MEDIA|
DOWNLOADING
FACEBOOK
DATA

25. Number
4:
Making
Decisions
about
ESI
and
eDiscovery
Strategy
has
to
be
a
TEAM
effort

26. Number
5:
Not
all
eDiscovery
Tools
are
Created
Equally
(and
they’re
not
all
just
for
review)

28. FTK
Imager
• Collec:on
tool
for
making
forensic
images
• Free
download
at
www.accessdata.com
• Install
on
hard
drive
and
use
for
mobile
collec:on

29. • PC
based
forensic
search
tool
• Indexes
data
and
creates
concept
map
to
show
rela:onships
between
custodians
and
data
• Allows
culling
of
data
with
low
cost
and
low
effort
• One
:me
licensing
fee
–
requires
use
of
dongle

30. • Process,
Review,
Produce
ESI
• Fixed
cost
per
document
vs.
per
GB
• Use
on
iPhone
and
iPad
• No
training
required
• Cross-­‐planorm

32. • PC
based
processing
and
review
tool
• Works
with
up
to
15GB
of
data
per
maEer
• $100
download
one
:me
fee
that
goes
to
Room
to
Read
charity
• Download
at
www.prooffinder.com
By
Nuix

33. • Mul:ple
tools
to
allow
for
collec:on
of
social
media,
review
and
case
management
in
cloud
based
services
• Pricing
-­‐-­‐
$25/GB
flat
fee
per
month
• Use
with
iPhone,
iPad
• Built
by
former
paralegal
at
large
Chicago
firm
to
provide
li:ga:on
support
• Cross-­‐planorm
–
web
based
• Grows
with
what
you
need
for
your
case
www.nextpoint.com

35. www.ediscoveryassistant.com

36. • Includes
rules,
case
digests,
checklists,
templates
glossary
and
resources
for
eDiscovery
• Designed
to
be
first
stop
for
eDiscovery
• Includes
checklists
for
planning
strategy,
interviewing
custodians,
iden:fying
sources
of
ESI
to
meet
your
obliga:ons
• Ini:al
download
-­‐-­‐
$29.99
with
monthly/annual
subscrip:on
cost

37. Ques?ons?
Kelly
H.
Twigger,
Esq.
p:
303.379.3068
ktwigger@esiaEorneys.com
www.esiaEorneys.com
TwiEer:
@kellytwigger
LinkedIn:
Kelly
Twigger