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Richard N. Lettieri, Esq.
E-Discovery Counsel

Lettieri Law Firm, LLC
1620 King James Drive
Pittsburgh, Pa. 15237

412-364-7255 (Office)
724-814-2743 (Cell)

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What Is An E-Discovery Counsel?

An E-Discovery Counsel is an attorney who possesses both the technical and legal knowledge and experience to provide legal advice to legal teams during the e-discovery process in litigation.

The volume of electronically stored information involved in litigation today, combined with the complexity and variety of technology used to store and retrieve ESI, as well as the changes to the new FRCP and the resulting case law, have created a need for attorneys who limit their practice to e-discovery rather than merely deal with it occasionally. E-discovery counsel are sought by lawyers who need a "go-to" person to resolve these complex issues. They are also sought by Judges as "E-Discovery Special Masters" to act on behalf of the court to resolve e-discovery issues, and by knowledgeable parties and their counsel to resolve e-discovery disputes at or before the Rule 26(f) "meet & confer" through e-discovery mediation, also being referred to as e-mediation.

What Lawyers Need the Type of Services Provided by Attorney Lettieri?

Mr. Lettieri has been retained by both large and small firm litigators representing both plaintiff and defense counsel, in complex and routine cases involving ESI. Most recently, with the creation of E-Discovery Practices among the AMLAW 1000 largest law firms, Mr. Lettieri has been retained by mid-to-small firms by plaintiff counsel, primarily in labor, employment, and personal injury cases to help “level the ESI playing field” and close the ESI "skill gap" that has emerged between the large firms and the mid-to-small firms. He also continues to be sought by jurists and counsel as an E-Discovery Special Master.

Why Do You Need An E-Discovery Counsel?

Rule 1.1 of the ABA Model Rules of Professional Conduct states 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.

Rule 26 of the FRCP requires counsel to obtain a level of familiarity with the client’s data retention systems so as to effectively define, locate and preserve all information potentially relevant to the claims and defenses presented in each case. This requires knowledge of how the client’s system creates and stores information, how that information can be lost or deleted, how accessible the information is, and specifically where potentially relevant information is stored.

Many district courts, (like the U.S. District Court, Western District of Pennsylvania) have adopted new local rules explicitly referring to a "duty to investigate" the client's ESI in order to discuss how the ESI "can be preserved, accessed, retrieved, and produced".

ABA Model Rule 3.4 further clarifies counsel’s obligation to preserve and produce all potentially relevant and responsive ESI by stating that "a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potentially evidentiary value. A lawyer shall not counsel or assist another person to do any such act…" [Model Rule 3.4(a)]. In pretrial procedure, a lawyer shall not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party [Model Rule 3.4(d)].

When counsel falter, courts have a broad range of sanctions that they have not been hesitant to invoke for e-discovery shortcomings; from extending the discovery period or barring certain evidence or testimony at trial for minor infractions involving ordinary negligence, to granting adverse inferences and judgments against a party for infractions involving gross negligence or deliberate evidence spoliation. In at least one instance, criminal charges have been filed for the deliberate destruction of electronic evidence.

Three lawyers at the law firm of King & Spalding recently conducted an extensive study of federal court sanction motions and sanction awards for e-discovery violations. The study analyzed 401 cases prior to 2010 in which sanctions were sought. Sanctions were awarded in 230 of the cases including dismissals of the action, adverse inference instructions to the jury, and significant monetary penalties including nine awards of over $5 million. Counsel were sanctioned for failure to turn over materials on a timely basis, failure to inform clients of preservation obligations, failure to oversee their client’s search for relevant and responsive information in response to discovery requests, failure to comply with Court Orders related to e-discovery, lawyer misrepresentations, and failure to produce documents.

Subsequent studies on sanctions at Gibson Dunn and Williams Mullen, showed sanctions down slightly in 2010, but they were expected to rise again in 2011 and beyond.

For all the reasons above, you may want to consider the assistance of an experienced, knowledgeable E-Discovery Counsel when dealing with ESI issues in federal court.

In Short:

  1. to find evidence (so that you can win your case)
  2. to keep the costs of e-discovery under control
  3. to avoid sanctions

What Are The Primary Responsibilities of An E-Discovery Counsel?

Key responsibilities of E-Discovery counsel in chronological order (these responsibilities include, but are not limited to):

  1. Advise on the proper timing and execution of electronic evidence preservation and collection of potentially relevant data when the duty to preserve arises.
  2. Assist with the creation and issuance of the litigation hold, including training, response and tracking compliance.
  3. Assist with the creation and issuance of a preservation letter to alert opposing counsel of their preservation obligations when litigation is "reasonably anticipated".
  4. Perform a “duty to investigate” the IT systems of both your client and opposing counsel’s client prior to, or during the Rule 26(f) “meet & confer”. The purpose of this effort is to determine where (i.e. what applications and devices) relevant evidence exists, whether it is “accessible” or “inaccessible” due to undue burden and costs, and how it can be requested with focused and targeted discovery requests.
  5. Provide E-Discovery mediation services for counsel who have not been able to settle their e-discovery issues before or during the Rule 26(f) "meet & confer", but would like to do so voluntarily before the appointment of an E-Discovery Special Master by the court.
  6. Advocate on behalf of one party prior to, during and after the Rule 26(f) "meet & confer" conference
  7. Assist in the preparation of discovery requests and responses, or the joint creation of ESI search protocols.
  8. Assist with depositions or preparing client representatives for depositions that deal with E-discovery issues, including 30(b)(6) depositions of the IT personnel of the opposing counsel’s client.
  9. Advise/counsel on issues related to the review and production.
  10. Provide trial support, as required.
  11. Assist the court as an "E-Discovery Special Master" to resolve e-discovery disputes between parties at the early stages of the discovery process.

What Are The Critical Skills Required of An E-Discovery Counsel?

  • A thorough knowledge of the FRCP and evolving case law related to ESI
  • A solid background and understanding of IT issues, systems, terminology and environment.
  • Experience as a litigator, familiar with the procedures in federal court.
  • Working knowledge and experience addressing E-discovery issues from a judicial perspective – providing judges what they expect relative to ESI.
  • Ability to deal effectively with opposing counsel; writing specific, targeted e-discovery requests or negotiating joint ESI search protocols; overcoming overly broad or unduly burdensome discovery requests; negotiating reasonable scope; agreeing on production formats; applying the principle of proportionality to manage costs.
  • Ability to evaluate, select, and execute appropriate search methodologies that are iterative in application; provide quality control metrics, and achieve balanced recall and precision targeted goals. To recommend technology-assisted review (TAR) or computer-assisted review (CAR) approaches, when appropriate.
  • Avoid court sanctions through the competent and cost-effective application of the law and practical knowledge of ESI “best practices” to reduce risks, manage costs and help win the case.
  • E-Discovery mediation skills and experience
  • Ability to serve the court as an "E-Discovery Special Master"

What Value Does An Experienced E-Discovery Counsel Provide?

Level the Playing Field Against Larger Firms That Have Access to In-House E-Discovery Practice Resources

As you know, in litigation, a competitive edge may mean the difference between success and failure. If you are going up against a firm that has access to an internal E-Discovery Counsel and you don’t, you may want to "level the e-discovery playing field" by adding an E-Discovery Counsel to your legal team, especially at the front end of the process.

According to the Cohen Consulting Group, as of October, 2010, 87 of the AMLAW 200 law firms had created E-Discovery practices. This number is up from 6 only two years ago. In 2013, almost every AMLAW 200 firm now has their own in-house E-Discovery practice.

As larger firms have created specialized E-Discovery Practices within their firms, mid-to-small firms have needed to augment their litigation teams with E-Discovery Counsel on an “as-needed” basis. These “as-needed” E-Discovery Counsel have helped the smaller firms “level the e-discovery playing field” Click here... and “close the ESI Skill gap” Click here... against the larger firms.

Control the Costs of E-Discovery – 4 Key Benefits

  1. By agreeing early on a reasonable list of custodians and timeframe (i.e. scope), preservation costs can be significantly reduced.
  2. By reducing the scope of the collection (both number of custodians and timeframe), we reduce the amount of data that must be filtered, processed and reviewed at a significant cost savings.
  3. By ensuring that only accessible data is produced, we eliminate the need and cost to restore data from less accessible media.
  4. By agreeing to a reasonable search protocol (i.e. reasonable methodology like. technology assisted review (TAR), also sometimes referred to as predictive coding; or by creating an iterative keyword search with metrics, we shorten review time and help ensure a review of “mostly” relevant documents.

Avoid Sanctions

In addition to the above-mentioned sanctions in the section entitled “Why Do You Need an E-Discovery Counsel”, practitioners were reminded very recently of this real threat in two cases:

  • Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)
    In this case, the court ruled that destruction of a tape recording after preserved for litigation at a time when litigation was reasonably foreseeable, met the test of “bad faith” to support an adverse inference for spoliation of evidence.
  • Lester v. Allied Concrete Company ( VA. Circuit Court 10-21-12)
    In this state case, severe sanctions of $542,000 were ordered when a lawyer advised his client through a paralegal to “clean up” his Facebook account.

In Short: What Value Does an Experienced E-Discovery Counsel Provide?

  1. level the e-discovery playing field against the larger firms
  2. control the costs of e-discovery
  3. avoid sanctions

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