E-Discovery and its Impact on Insurance Coverage Issues

E-DISCOVERY AND ITS IMPACT ON
INSURANCE COVERAGE ISSUES
ABA TIPS: 21st Annual Insurance Coverage Litigation Committee
Midyear Program

Phoenix, AZ | Feb. 14 – 16, 2013

Introduction

A. The Discovery of ESI in Coverage Litigation
B. Our Panel:
James Koutras, Cristal USA, Inc.
Gabriela Richeimer, Troutman Sanders
David C. Rosenbaum, Fasken Martineau DuMoulin
Drew Lewis, Recommind
Joe Beavers, Miles & Stockbridge

February 2013 | E-DISCOVERY AND ITS IMPACT ON INSURANCE COVERAGE ISSUES 2

Outline

I. Case Law Update
II. E-Discovery Considerations in Coverage Litigation
III. Client Expectations and Best Practices
IV. Conclusions / Q&A


I. Case Law Update


I. Case Law Update

A. General Overview of ESI Developments

Proportionality Standardization?
Preservation Issues Sanctions Issues

Full-Service Law Offshoring
Firm ESI Contract Computer-
Offerings Attorneys Assisted Review


I. Case Law Update

B. Some Key Cases from 2012:

Apple v. Samsung
2012 WL 3627731 (N.D. Cal. Aug. 21, 2012)
(preservation / sanctions)

General Elec. Co. v. Wilkins
2012 WL 570048 (E.D. Cal. Feb. 21, 2012)
(accessibility / proportionality)

Tucker v. AIG
281 F.R.D. 85 (D. Conn. Mar. 15 2012)
(reasonableness / proportionality)


I. Case Law Update

Some Key Cases from 2012 (continued):

Da Silva Moore v. Publicis Groupe
2012 WL 607412 (S.D.N.Y. Feb 24, 2012)
(court approval of computer-assisted review)

Kleen Products, LLC v. Packaging Corp. of Amer.
2012 WL 4498465 (N.D. Ill. Sep. 28, 2012)
(cooperation & computer-assisted review)


I. Case Law Update

Some Key Cases from 2012 (continued):

Chevron v. The Weinberg Group
2012 WL 4480697 (D. D.C. Sep. 26, 2012)
(adequacy of privilege logs)

Inhalation Plastics v. Medex Carsio Pulmonary
2012 WL 3731483 (S.D. Ohio Aug 28, 2012)
(inadvertent disclosure / clawback agreements)


II. E-DISCOVERY
CONSIDERATIONS
IN COVERAGE
LITIGATION


II. E-DISCOVERY CONSIDERATIONS
IN COVERAGE LITIGATION

This is “an e-discovery case!”



PRESERVATION:
Implementing and Maintaining a Sufficient Legal Hold
Knowledge and Evaluation Regarding Your Case and the:

Who: the relevant custodians;

What: the data and its format (e-mails, databases, voice mail, documents);

Where: the location of the data (servers, personal computers, PDA’s, etc.);

When: the duty to preserve is triggered.

See, e.g., Pension Cmt. of Univ. of Montreal Pension Plan v. Banc of Amer. Securities
685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010).



STRATEGY & COOPERATION:
Preparing for the Rule 26 Meet-and-Confer
Evaluate and Consider:
The Anticipated Scope of Discovery

Proportionality

What ESI Likely Will Be Sought

Whether Preliminary Written Discovery May Be Appropriate

Search Methodologies (Key-Word Searches; Computer-Assisted Review)

Whether/What Meta-Data Might Be Relevant

The Format of Productions

Scope and Method of Redactions

Protective Orders / Confidentiality Agreements

Inadvertent Production / Clawback Issues

Cost-Sharing Issues



More On Cooperation and the Discovery of ESI:

Cooperation in Discovery is Consistent with Zealous
Advocacy

Lawyers have twin duties of loyalty: While they are retained
to be zealous advocates for their clients, they bear a
professional obligation to conduct discovery in a diligent and
candid manner. Their combined duty is to strive in the best
interests of their clients to achieve the best results at a
reasonable cost, with integrity and candor as officers of the
court. Cooperation does not conflict with the advancement of
their clients' interests - it enhances it. Only when lawyers
confuse advocacy with adversarial conduct are these twin duties
in conflict.

10 Sedona Conf. J. 331



More On Cooperation and Cost-Sharing Issues:
Avenues For Cost Recovery:

Invoke the court’s discretion under Rule 26 to fashion a remedy to prevent e-discovery
abuse before incurring the cost.
See Lubber v. Optari, No. 3:11-0042, 2012 WL 899631 (M.D. Tenn. March 15, 2012)
(ordering plaintiffs and defendants to split cost of e-discovery requested by
plaintiffs)
Do not expect recovery of e-discovery expenses as the prevailing party as part of the cost
bill.
See Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012)
(reducing cost bill award from $350,000 to $30,000 for basic copying and scanning)



DEFENSIBILITY:
Proper Practices from Collection to Production
Reasonable, Repeatable, and Well Documented Practices are Key at Every Step:

Collection

Processing

Review

Production

See, e.g., National Day Laborer Organizing Network v. U.S. Immigration and
Customs Enforcement, 2012 WL 2878130 (S.D.N.Y Jul. 13, 2012).


III. MEETING
CLIENT
EXPECTATIONS


III. MEETING CLIENT EXPECTATIONS

Delivering What In-House Counsel Expect:
• Expertise

• Taking Responsibility

• Proportionality / Practicality

• Budgeting / Avoiding Overruns

• Efficiency

• Vendor Relationships / Partnerships

• Value Added v. Profit-Center Mentality


IV. Conclusions and
Q&A


IV. CONCLUSIONS AND Q&A

What’s Next?

Narrowing of the scope of “relevancy” (FRCP 26(b)(1))
See Draft Minutes, Civil Rules Advisory Committee (Nov. 2, 2012)

Standardized Preservation Sanctions (FRCP 37(e))
See Civil Rules Advisory Committee Materials (Nov. 1, 2012)

Social Media Issues

Cyber Security / Cloud Computing Issues


IV. CONCLUSIONS AND Q&A

Q&A


Firm Overview

Miles & Stockbridge P.C. is a full-service law firm
that represents businesses of various sizes, and has regional,
national and international capabilities. Our team of more
than 200 lawyers is widely recognized for its work in Miles & Stockbridge P.C.
the manufacturing, distribution, life sciences and real estate 10 Light Street
Baltimore, MD 21202
industries. We take pride in our forward-thinking approach
and dedication to serving the best interests of our clients. www.milesstockbridge.com


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