First conceived in 2005, the T3 Conference (Trial Tactics & Technology) was developed in response to a rapidly growing need in the legal community for more information about electronic discovery, the evolving Federal Rules of Civil Procedure, and changes that technology was bringing to the way litigation is handled by inside counsel, outside counsel, and the technology consultants who are helping them prepare for and conduct litigation.
In 2005, Martin Beirne of Beirne Maynard & Parsons teamed up with Kimberly Fine of American Lawyer Media Events, Shahzad Bashir of Huron Consulting, and Sylvia Kerrigan of Marathon Oil to develop the first T3 Conference, which was held in New York on December 6 – 7. The response was tremendous, especially to the mock e-discovery “trial,” that the participants staged. Michael Arkfeld, a leading e-discovery expert, moderated, and Hon. James C. Francis IV presided over the three-act drama, which included “the facts” and initial proceedings (a mix of allegations of age discrimination, violation of a confidentiality agreement, and technology complications).
In Act I, the opposing teams participated in a strategy session to spot issues, identify pitfalls, and divide responsibilities among the team. Act I also included a “meet and confer” meeting between the parties and concluded with an appearance before the court to memorialize an agreed preservation order and resolve open issues. Act II presented the legal and factual (including cost) issues involved in presenting a motion for protective order, cost allocation, and discussions of data sampling and relevant search terms for an employment database. Arguments were made to the court regarding a request to produce, cost issues, and procedures for obtaining a forensic copy of a computer hard drive. Finally, Act III consisted of a mock cross-exam regarding inadmissible evidence (chain of custody problems), improper forensic procedures, and a motion for sanctions for spoliation.
In December of 2006, the International Lawyers Network joined T3 as a media partner, thanks to Mr. Martin Beirne. The ILN’s purpose in partnering with ALM Events is to increase the Network’s visibility among law firms and corporate counsel. For their part, the ILN administration made sure that all members were advised of the particulars of the event and the benefits of attending. An information table was staffed at the event in order to promote the ILN and answer any questions.
At the 2006 T3, the mock trial format was refined and repeated, again in New York. This time the presiding judge was Honorable Shira A. Scheindlin, U.S. District Judge. Judge Scheindlin is well known for presiding over the seminal e-discovery case Zubulake v UBS Warburg. In this case, Judge Scheindlin issued five groundbreaking opinions, making Zubulake the first definitive case in the United States on a wide range of electronic discovery issues. These issues included:
• The scope of a party’s duty to preserve electronic evidence during the course of litigation
• Lawyer’s duty to monitor their clients’ compliance with electronic data preservation and production
• Data sampling
• The ability for the disclosing party to shift the costs of restoring “inaccessible” back up tapes to the requesting party
• The imposition of sanctions for the spoliation (or destruction) of electronic evidence
The presence of Judge Scheindlin helped generate extraordinary attendance, and even when her segment of the program was complete, attendees stayed for the nuts-and-bolts information that followed for the remainder of the conference.
Two other key issues of the 2006 conference were the changes to the Federal Rules of Civil Procedure – affecting electronic discovery – that went into affect on December 1, 2006, just a week before the conference; and the costs of electronic discovery, about which we are learning a great deal more as e-discovery becomes a commonplace feature on litigation.
The conferences in both 2005 and 2006 featured distinguished faculty addressing the conference on a variety of legal technology issues. The 2005 conference included a session on information management by Jay Brown of Beirne, Maynard & Parsons and Marathon Oil’s Sylvia Kerrigan and a presentation by Craig Glidden, General Counsel of Chevron Phillips Chemical Company, on technology in the corporate legal department. The 2006 conference included sessions on such topics as litigation support technologies; managing the costs of e-discovery; proactive data and email management; use of temporary attorneys, paralegals and support staff; outsourcing; and technology best practices.
Over the last few years, Beirne, Maynard & Parsons attorneys have written numerous articles on e-discovery, many of which may be found on the firm web site at www.bmpllp.com, and spoken on the topic at various conferences and webinars. Electronic discovery is changing the landscape of litigation, and our goal at BMP is to make sure our clients and prospective clients understand how our knowledge in this area can benefit them in controlling the costs of litigation and in helping ensure a successful outcome.
