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TWENTY EIGHTH ANNUAL SOUTHERN SURETY AND …

HANDLING HIGH VOLUME DOCUMENT REVIEWTWENTY EIGHTH ANNUAL SOUTHERN SURETY AND fidelity CLAIMSCONFERENCEN ashville, TennesseeAPRIL 20 & 21 , 2017thstPRESENTED BY:DAVID A. HARRISPHILLIP C. KUCKB ovis, Kyle, Burch & Medlin, LLC200 Ashford Center NorthSuite 500 Atlanta, Georgia 30338-2668 JENNIFER M. LEUSCHNERThe HartfordFort Worth, Texas 76244 1 Handling High Volume Document Review I. Introduction In 1900, human knowledge doubled approximately every By the end of World War II knowledge was doubling every 25 Today, on average, human knowledge is doubling every 13 months. Indeed, it is predicted that in time, knowledge will be doubling every 12 As a result, businesses and organizations are beginning to experience information snowballing beyond their ability to Companies are beginning to find problems with information In the context of civil litigation - more information leads to higher costs and time for document review.

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Transcription of TWENTY EIGHTH ANNUAL SOUTHERN SURETY AND …

1 HANDLING HIGH VOLUME DOCUMENT REVIEWTWENTY EIGHTH ANNUAL SOUTHERN SURETY AND fidelity CLAIMSCONFERENCEN ashville, TennesseeAPRIL 20 & 21 , 2017thstPRESENTED BY:DAVID A. HARRISPHILLIP C. KUCKB ovis, Kyle, Burch & Medlin, LLC200 Ashford Center NorthSuite 500 Atlanta, Georgia 30338-2668 JENNIFER M. LEUSCHNERThe HartfordFort Worth, Texas 76244 1 Handling High Volume Document Review I. Introduction In 1900, human knowledge doubled approximately every By the end of World War II knowledge was doubling every 25 Today, on average, human knowledge is doubling every 13 months. Indeed, it is predicted that in time, knowledge will be doubling every 12 As a result, businesses and organizations are beginning to experience information snowballing beyond their ability to Companies are beginning to find problems with information In the context of civil litigation - more information leads to higher costs and time for document review.

2 According to recent surveys, litigation costs continue to rise and are consuming an increasing percentage of corporate In some industries first-level document review may encompass anywhere between 58% and 90% of total litigation Thus, particularly high volume document review is leading to significantly more time and costs. According to IBM, E-mail documents, which amount to as much as 75% of company intellectual property also figure in nearly 75% of all cases of corporate The definition of high-volume document review seems fluid and is relatively undefined. However, it is safe to assume that such review involves massive amounts of documents from 100,000 to 15,000,000 and beyond. In addition, document review refers not just to paper copies but of all information, including electronically stored information (ESI) that may be relevant to a case.

3 This paper will review the legal obligations for high-volume document review under the ABA Model Rules and the Federal Rules of Civil Procedure, and then describe best practices and processes to deal with high volume document review. 1 David Russell Schilling, Knowledge Doubling Every 12 Months, Soon to be Every 12 Hours, IndustryTap, (April 19, 2013). 2 Id. 3 Id. 4 The Toxic Terabyte: How Data-Dumping Threatens Business Efficiency, IBM, (July 2006). 5 Id. 6 Lawyers for Civil Justice, Civil Justice Reform Group, Chamber Institute for Legal Reform, Litigation Cost Survey of Major Companies, 2010 conference on Civil Litigation (May 10-11, 2010). 7 Ashish Prasad, Kim Leffert, and Shauana Fulbright-Paxton, Cutting to the Document Review Chase: Managing a Document Review in Litigation and Investigations, 18 Business Law Today (Nov.)

4 2008). 8 The Toxic Terabyte, supra note 4. 2 II. Legal Obligations for High Volume Document Review A. Professional Responsibility for Understanding and Adjusting to Technological Changes: the ABA Model Rules Some reports indicate that over 99% of information is now in digital Therefore, electronically stored information plays a critical role in litigation, particularly litigation that involves high-volume document review. Nearly fourteen year ago, Zubulake v. USB Warburg (Zubulake I)10 was the first case of its kind in addressing disputes surrounding the production and review of electronically stored information. Zubulake I and its progeny Zubulake III-V,11 all pre-trial decisions, categorized five types of electronic repositories, some of which were more accessible than others.

5 They also created a seven-factor balancing test to determine which party should pay for high-volume document production. Further, the court concluded that the companies have a duty to preserve evidence as soon as it should have known that it might be relevant for future litigation. Perhaps most importantly to our discussion, Zubalake V created an obligation for attorneys to supervise document production and ensure all relevant documents are discovered, retained, and produced. In relevant part the court stated, [c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. 12 With the background of Zubalake in mind, we turn to the Model Rules of Professional Conduct to see what other obligations or duties an attorney may have regarding document review.

6 The American Bar Association has crafted several rules that pertain to an attorney s conduct regarding eDiscovery. 1) Technology Competence (ABA ) Rule of the ABA Model Rules of Professional Conduct mandate that [a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 13 Comment 8 to Rule , titled Maintaining Competence provides, [t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

7 (emphasis added). With the introduction of e-discovery into the legal world in the past two decades as well as the use of metadata contained within electronic documents, comment 8 admonishes attorneys to keep apprised with all kinds of technological advances, which obviously includes advancements in how to 9 John H. Beisner, Discovering A Better Way: The Need for Effective Civil Litigation Reform, 60 Duke 547, 564 (2010). 10 Zubulake v. UBS Warburg, 217 309 ( NY. 2003). 11 Zubulake v. UBS Warburg, 216 280 ( NY.); Zubulake v. UBS Warburg, 220 212 ( NY.) 229 422 ( ). 12 Zubulake v. UBS Warburg, 2004 WL 1620866. 13 ABA Model Rules of Professional Conduct, Rule (2016) 3 process high-volume document production requests and review.

8 The takeaway from comment 8 is that if an attorney fails to keep him or herself abreast of changes in the relevant technology used in law practices, that attorney is potentially failing to maintain competence. Some states have taken comment 8 one step further. For example, effective January 1, 2017, the Florida Bar requires all members to obtain three hours of CLE credit in approved technology programs. This rule demonstrates a new recognition that learning and adjusting to changes in technology are professional obligations. Failure to be competent with regard to eDiscovery during high-volume document production, or at least to associate with competent counsel on the matter, may result in harsh penalties imposed by the court. Common instances of pitfalls in the production of high-volume documents for review include handing over privileged information, either by missing a document during review, or by inadvertently disclosing metadata that contains a client s privileged Another common occurrence that gets attorneys in to trouble is when counsel fails to implement appropriate holes when litigation is reasonably foreseeable as set out in Zubalake which could lead to a spoliation claim from clients or opposing 2) Responsibilities for supervising attorneys and non-lawyers (ABA ; ) and California Formal Opinion No.

9 2015-193. When attorneys select other attorneys, consultants, vendors or experts to review a high-volume of discovery materials, the rules of professional conduct still apply. The rules of professional conduct do not permit the hiring attorney to just turn over the assignment and forget about Rules and impose an ethical obligation on attorneys to understand what actions the retained vendor takes steps to maintain confidences and prevent inadvertent disclosure of confidential Rule requires a supervising attorney to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. 18 Similarly when an attorney is supervising a non-lawyer, the primary attorney shall make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer.

10 19 To illustrate, consider the case of HM Electronics v. Technologies20 where the court decided that sanctions were appropriate where defendant s attorneys failed to perform quality control checks or to supervise the work of the ESI vendor, which withheld over 375,000 pages of discovery that should have been produced for review. 14 See Andrew M. Perlman, The Legal Ethics of Metadata Mining, 43 Akron L. Rev. 785, 793 (2011). 15 Zubalake 16 Kevin F. Brady, Michael Kearney, and Tom Seymour, Legal Malpractice and eDiscovery: Understanding the Unique Challenges and Managing the Increasing Risks, Bloomberg Law Insight (Aug. 11, 2016). 17 ABA Model Rule of Professional Conduct (Responsibilities of a Partner or Supervisory Lawyer); ABA Model Rules of Professional Conduct (Responsibilities Regarding Nonlawyer Assistant).


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