Establishing Ethical Document Production Practices: Avoiding Ethical Landmines and Spoliation Charges in Discovery
Stephen D. Brody
O'Melveny & Myers LLP
Farney Daniels, P.C.
K. Shannon Mrksich Ph.D.
Senior IP Counsel
- 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