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inns of court
by Matthew Talbot
On January 11, 2013, Judge
Craddick’s group (consisting
of Jeremy Seymour,
Nataly DiCortossa, Alison
Chandler, David Marchiano, Heidi
Coad-Hermelin, Harry Styron, Joseph
Ryan, Matthew Guichard and
Ralph Zappala) provided the educational
presentation at the Robert
G. McGrath Inns Of Court Meeting.
Their presentation was about electronic
discovery. It is often said
(mostly by me) that discovery fights
are the bane of every attorney’s existence.
Nothing in this presentation
helped dissuade me from that
outlook. Even UFC fighters think
discovery fights are too primitive
and brutal. Technology has only
complicated discovery in ways that
few could have anticipated. The
bottom line of the presentation was
“never use technology ever.”
First, Alison Chandler and Jeremy
Seymour used a photo of Judge
Craddick uploaded to Flickr to discuss
meta-data. Meta-data is all
the background information about
electronic items (such as digital
photos) that few ever pay attention
to. They discussed how the iPhone
tracks everything it does and everywhere
it goes. This information can
be discoverable and you might not
have even known that it existed.
The discussion next flowed to providing
the electronically stored information
(ESI). Federal Rule Of Civil
Procedure 26(b)(2)(B) notes that
you don’t have to provide the ESI
if it is not easily accessible because
of burden or cost. Nataly DiCortossa
and Ralph Zappala discussed the
enforcement of this rule. You can
bring motions for a protective order
or to compel discovery. These
motions are generally a delightful
experience not filled with minutiae
regarding what constitutes an undue
burden. Or the exact opposite of
that sentence.
The discussion flowed to setting
up a Discovery Plan for the court
if you end up in the middle of an
ESI discovery fight. Additionally,
the group discussed the duty to preserve
ESI. You do not have a duty to
preserve every piece of electronic
information. If you have a standard
policy (such as deleting ESI every
90 days), it is appropriate. However,
deleting ESI specifically to avoid
discovery is about as big a no-no as
you can get. Unless you slap your
opposing counsel about the face
and neck with a stack of document
requests. And negligent destruction
can even lead to sanctions. So, don’t
leave all of your hard drives on the
furnace during the winter.
Matt Guichard and David Marchiano
then focused on the protective
orders. They discussed drafting
them, including Liquidated Damages
Clauses in the Protective Orders
themselves. The conversation
flowed to methods of production.
Electronic discovery can include
thousands or even millions of documents.
It could easily overwhelm a
smaller law firm. One way to assist
with electronic discovery is to hire
a vendor to organize the discovery.
You can use in-house attorneys
if you are a big enough firm, but
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MARCH 2013