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Over the past two years corporations have made significant changes in the way electronically stored information (ESI) is managed in the context of investigations and litigation. Corporate litigants have strengthened litigation readiness and response protocol, exercising increased control over the beginning stages of the electronic discovery process. Those legal professionals charged with defending corporations' actions are impacted by this shift in process and must understand what the "new era" of e-discovery operations means for their responsibilities. ESI Readiness Strategy & Document Retention Policies Despite the fact that almost half of corporations do not have an ESI readiness policy in place, 87 percent of U.S. companies reported having a document retention policy in place. The disparity between the existence of an ESI discovery readiness strategy and a document retention policy suggests a lack of knowledge between the concepts of document retention and discovery readiness, and perhaps a false sense of security that the existence of a document retention policy is comprehensive enough to protect an organization when it must respond to a legal inquiry. As corporations continue taking control over e-discovery and information management policies, the communication gap that currently exists regarding these policies will continue to widen. Law firms and corporations are not always on the same page when it comes to understanding policies and enforcing them, which spells trouble for counsel. In order to be on the same page as their clients, outside counsel must engage in conversations regarding these policies, ensuring effective strategies are in place. Litigation Hold Policies & Mechanisms Recent case law is replete with examples of courts imposing sanctions against parties and their counsel for failure to properly comply with preservation obligations. However, there is one example in which outside counsel escaped sanctions despite playing a role in the client's shortcomings. In Pinstripe Inc v. Manpower Inc., the Northern District of Oklahoma sanctioned the defendants who failed to issue a litigation hold and preserve documents appropriately. Outside counsel drafted a litigation hold for the defendants and believed it was in effect. The court chose not to impose sanctions against outside counsel based on the record, which demonstrated that the law firm attempted to confirm that all responsive documents were produced. Despite the fact that outside counsel escaped sanctions in this case, law firms should be cognizant of their duties to monitor their clients' compliance with proper discovery protocol. It is highly unlikely that every court would treat this situation similarly and choose to let counsel off the hook. Defensibility Failing to adequately explain discovery shortcomings when defensibility is questioned may lead to the imposition of sanctions against outside counsel in addition to the corporate client. In a series of opinions, the Middle District of Florida, in Bray & Gillespie Management LLC v. Lexington Insurance Company, found the plaintiff corporation and its counsel jointly and severally liable for the defendants' expenses and costs as a result of discovery failures. The interplay between outside counsel and the corporate client was also highlighted by the Southern District of Indiana in 1100 West, LLC v. Red Spot Paint & Varnish Company. In response to the default judgment the plaintiff sought, the defendant argued it relied on its attorneys for discovery advice, and therefore, any error was the attorneys' responsibility. The defendant's attorneys also attempted to pass the blame by attributing discovery shortcomings to the defendant's failure to provide accurate and complete information. Finding the case to be "replete with examples of violations of discovery rules," the court found the attorneys and defendant responsible for the plaintiff's attorneys' fees and costs, in addition to granting the motion for default judgment sanctions. This case illustrates that the attorneys are responsible for knowing, understanding and monitoring their clients' adherence to the requirements specified in the Federal Rules of Civil Procedure. Conclusion To download a complimentary copy of Kroll Ontrack's Third Annual ESI Trends Report, please visit www.krollontrack.com/esitrends. 1This report is based on an independent survey conducted by Research Plus on behalf of Kroll Ontrack. A total of 461 (231 U.S. and 230 U.K.) online interviews were conducted among IT and in-house counsel at commercial businesses. Survey questioning was completed between July and August 2009.
One essential element for a successful outcome at trial is a detailed understanding of the venue. Venue analysis is the process of understanding the impact of issues like location, community attitudes and potential jurors in case outcome. The goal of venue analysis is to better predict how jurors in a particular venue will react to key issues in a case while uncovering biases prior to trial. Venue analysis is an area of expertise for jury consultants who work with trial lawyers to determine community attitudes to later craft arguments that will resonate with the jury. Attorneys and jury consultants have a broad range of tools available for conducting an analysis of any venue in the country. The depth of analysis is determined by the goals of the trial team and the needs dictated by the case. An inexpensive venue overview can provide demographic information of the jury pool in a specific venue, with basic details regarding what economic and social factors are at play. This data forms the trial team's strategy for jury selection and is especially informative when combined with pretrial jury research. For greater detail and better results, a venue analysis can also take the form of phone and Internet surveys as well as focus group and mock trial research. Using large sample sizes, an abbreviated version of the case is presented to surrogate jurors in order to generate a strike profile of jurors that are good and bad for a particular case. Trial teams also rely on surveys for change of venue motions. Due to improvements in methodology, cutting-edge jury consulting firms can conduct surveys by phone or online with faster turnaround times than in the past. In the right hands, mock trials can yield a juror profile while also providing detailed feedback on case issues and strategy from venue-matched jurors. To achieve effective and reliable results in any venue analysis, attorneys should seek the advice of experienced jury consultants. Kroll Ontrack Litigation Technology Workshop at LegalTech New York 2010 Download Kroll Ontrack's Recent Podcast: Third Annual ESI Trends Report, ESI Management & Workplace Privilege Keep Up to Date with Kroll Ontrack Social Media Meet our representatives at the following events:
Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.
This newsletter was written by Kelly Kubacki and Kelly Runkle, Kroll Ontrack Law Clerks, with assistance from Regina Jytyla, Kroll Ontrack Managing Staff Attorney. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com. For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.
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