Establishing Ethical Document Production Practices: Avoiding Ethical Landmines and Spoliation Charges in Discovery

February 24, 2015 8:15am

Stephen D. Brody
Partner
O'Melveny & Myers LLP

Michael Siem
Partner
Farney Daniels, P.C.

K. Shannon Mrksich Ph.D.
Senior IP Counsel
Danaher Corporation

  • Having policies in place before any potential litigation: appropriate confidentiality policies, document retention policies, and IT policies (who can access what, where is it stored, and ensuring employee understanding)
  • Understanding the duties of a life sciences attorney during document production in the digital age: applying traditional ethical analysis under the Model Rules to a previously unimaginable amount of electronic data
    • Competency and electronically stored information (ESI): What life sciences attorneys need to know about preserving and storing info
    • Ethically handling sensitive data in highly regulated life sciences industries
  • Balancing the somewhat-at-odds duties of zealous advocacy to the client and duty of cooperation between producing and receiving parties in the discovery context
    • Case study: Understanding what led to billions in spoliation punitive damages in the Actos litigation
  • Interpreting the grey areas in document production requests: what is meaningful discovery and what is gamesmanship?
    • Knowing what to collect from the client and what to turn over to an opponent
    • Deciding what to put in the privilege log
    • Conducting the responsiveness review with the duty of good faith in mind: making plausible and legitimate objections versus engaging in frivolous or dilatory litigation techniques
    • Case study: Lauren Stevens, individual corporate responsibility, and the advice of counsel
  • Formulating corporate policies to mitigate spoliation accusations stemming from a litigation hold
    • Determining when and whether to put a hold in place in light of litigation sometimes anticipated years in advance
    • Training employees on their obligations regarding record keeping, note taking, and email usage during a litigation hold