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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 32 MARCH 2013
that can be expensive for the client. Some attorneys even outsource the organization and review process to foreign corporations. The key is to ensure that only appropriate documents are sent and nothing privileged is sent to opposing counsel. Casey McTigue introduced us to the concept of the discovery clawback. In that always awkward situation when you inadvertently provide a privileged document, you can basically demand that opposing counsel destroy the document without reviewing it. They have to destroy it and the privilege is protected! It is significantly more complicated than that, but I only have so many words. Joseph Ryan finished off the night with a further discussion of various privileges that can restrict document production. He noted that pursuant to California Evidence Code 917, if you claim privilege for a document, the opposing counsel has the burden of proof to disprove privilege. Disproving privilege can be incredibly difficult without reviewing the document giving the discovery respondent the advantage. All this discussion helped remind me to avoid discovery fights for my own mental sanity. The next meeting is March 14, 2013, at the Lafayette Park Hotel. To learn more about the Inns Of Court and get involved, contact President Scott Reep at (707) 784-0900 or Scott@Solanolawgroup. com. s For more information on recent case developments regarding inadvertently produced documents, please see “The Ethics Corner” in the February 2013 issue of the Contra Costa Lawyer, which is available online at cclawyer.cccba.org. REAL ESTATE BUSINESS PLANNING ESTATE PLANNING EXIT, SUCCESSION & ESTATE PLANNING FOR BUSINESS AND PROPERTY OWNERS HUBERT LENCZOWSKI, J.D., M.A. * hubert@lenczowskilaw.com C. JOSEPH DOHERTY, J.D. jdoherty@lenczowskilaw.com * Adjunct Professor Taxation Golden Gate University Law School, LL.M. Taxation Program Law Offices of Jay Chafetz 2033 N. Main Street Suite750 Walnut Creek, CA 94596 Since 1949 Rated AV by Martindale-Hubbell JAY CHAFETZ Personal Injury Trust & Estate Disputes Business Litigation Mediation (PI and Med Mal) Here for you when you need a trial attorney 925.933.5890 fax 925.933.5620 JayChafetz@JayChafetzLaw.com Bray & Bray Oliver W. Bray* Over 25 years in practice • Probate, Trust & Estate litigation and administration • Elder Abuse Litigation • Conservatorship establishment and litigation • Fiduciary court accountings • Estate Planning 736 Ferry Street Martinez, CA 94553 925-228-2550 925-370-8558 (fax) brayandbraylaw.com lenczowski law - cccba advertisement (12-10-2012).doc LENCZOWSKI LAW OFFICES ATTORNEYS AT LAW 1615 Bonanza Street, Suite 204 Walnut Creek, CA 94596 T (925) 280 7788 www.lenczowskilaw.com Free case evaluations for referring attorneys *Certified Specialist in Estate Planning, Trust and Probate Law – State Bar of California Board of Legal Specialization *Selected to Northern California Super Lawyers each year since 2006 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 33
Page 1 and 2: Contra Costa LAWYER Volume 26, Numb
Page 3 and 4: TED AND HIS CALIFORNIA FORMS WERE I
Page 5 and 6: 2013 BOARD OF DIRECTORS Jay Chafetz
Page 7 and 8: CCCBA - It’s Your Organization pr
Page 9 and 10: erations and those concerned with g
Page 11 and 12: The California Cliff by Mark Ericss
Page 13 and 14: ATRA also retained the 25 percent r
Page 15 and 16: Business Tax Provisions of ATRA 201
Page 17 and 18: IRS Return Preparer Regs Derailed b
Page 19 and 20: Annual Officer Installation January
Page 21 and 22: Meet Your New Commissioner: ANITA S
Page 23 and 24: Meet Your Local Judges, Family and
Page 25 and 26: RES IPSA JOKUITOR XVIII THE JOKE SP
Page 27 and 28: Elder Abuse Litigation Will & Trust
Page 29 and 30: Unfortunately, the rate reduction e
Page 31: Win A $100 GIFT CARD! We will be se
Page 35 and 36: CALENDAR UPCOMING EVENTS | OVERVIEW
Page 37 and 38: April 25 | Employment Section The E
Page 39 and 40: Why YOU should make referrals to CC

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