– PHOTOS COURTESY OF WARNER, NORCROSS, AND JUDD
By Cynthia Price
Legal News
Dawn Garcia Ward and B. Jay Yelton, co-chairs of the new Data Solutions practice group at Warner Norcross and Judd, both speak convincingly about the urgency of getting one’s data in order.
The practice group, the only one of its kind in Michigan, includes 35 professionals, from senior attorneys to Information Technology personnel to paralegals. Co-leaders Ward and Yelton are two broadly experienced attorneys whose expertise is complementary.
Though both are litigators, Ward’s practice is now primarily in records and information management counseling.
Ward worked in product liability defense for several years while at Butzel Long, a firm based out of the Detroit area which has been around since 1854. She served as coordinating counsel for large clients all over the nation, making sure that each of the firm’s attorneys was answering discovery consistently. Ward explains, “Through that I saw the importance of consistency in documents and records. Then I did the records retention program for a Tier 1 auto parts manufacturer. I realized, gosh, I really like this idea that before we’re in litigation we should understand what our records are and the importance of having our
house clean and organized and in order.”
She says about her practice at Warner, “Ninety percent of what I do now is helping clients with document management — even more lately.” She is a member of AIIM, the Association for Information and Image Management, and ARMA International — the “not-for-profit professional association and the authority on governing information as a strategic asset” — as well as on the board of the local ARMA chapter.
Ward attended University of Notre Dame for both her B.A., graduating cum laude, and her law degree. She joined Warner Norcross about six years ago, and practices out of the Holland office. She is methodical and detail-oriented, but due to her litigation expertise, recognizes the overarching scheme of data management.
Yelton says, “When I joined Warner three months ago, one of the first people I reached out to was Dawn because I knew she has not only the passion for this, but also the practical implementation skills.”
Yelton was formerly at Miller Canfield in Kalamazoo, and he will work out of the relatively new Warner Kalamazoo office. Very active in the local community, he has won a variety of Best Lawyers designations and was named one of America’s Leading Lawyers for Business and Commercial Litigation by Chambers USA.
Yelton attended Michigan State University, receiving a B.A. with honors, and then got his J.D. from Loyola University Chicago; he was executive editor for the Loyola Law Journal.
He still actively practices in litigation, so his lens on data solutions draws from that.
Even when most of the documents necessary to take a case to trial were in hard copy, Yelton says, “We would collect all the documents we could find and put them in databases, and I noticed that our witnesses were never surprised, were always prepared to put the information in a proper context. And we were always better prepared for taking depositions.”
Later, as e-discovery expanded, Yelton became an early expert, speaking and writing widely about the topic, including some articles in the Muskegon County Legal News. “It only takes so long to realize that you could do such a better job of managing discovery if indeed your clients were organized on the front end. I developed a kind of a passion for that piece of it as well,” he says.
The attorneys stress that in so many ways, electronic data management is beset with moving targets, and court decisions are all over the place. Early fines, such as the multi-million dollar one against UBS in Zubulake v. UBS Warburg, have given way to a variety of types of sanctions with stringency varying widely case to case.
An interesting article on the subject can be found at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1487&context=dlj, which quantifies monetary fines along with dismissals, adverse jury instructions and other sanctions through Jan. 2010.
“The variation in sanctions can really be dramatic,” says Yelton, but he says his research indicates that more recently many judges have taken a more balanced approach.
There are also proposed amendments to the Federal Rules of Civil Procedure on electronic data matters, with several provisions serving to reduce the burden of e-discovery. They were also changed in 2006. The current version has a “safe harbor” provision, Rule 37(e), which states: “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”
The proposed rules, which are awaiting U.S. Supreme Court approval after a comment period, drop that entire provision. Replacing it are limits on imposing sanctions to “substantial prejudice plus either willfulness/bad faith, or irreparable deprivation of ability to prosecute or defend the case,” according to materials prepared by another Data Solutions practice group member, Jonathan Moore, a partner and litigator in Warner’s Grand Rapids office.
The new rules also allow for consideration of cost-shifting in terms of the often-expensive discovery process.
Ward emphasizes that a consistent, well-thought-out policy about records retention will not only go a long way towards convincing a judge or investigating government agency that reasonable efforts have been made, but will also likely reduce costs.
Often, the crux of the matter is when a litigation hold kicks in, and as far as data preservation, U.S. District Court Judge Robert Cleland has cautioned that companies should “avoid spoliation from the moment that a party knows or should reasonably know that there is a potential for litigation.” As Yelton puts it, “Let’s say you just fired somebody and the person says ‘I’m going to be contacting my lawyer’ – that sets up a reasonable expectation you’re going to get involved in a lawsuit. But it is quite a gray area.”
As far as each individual type of document, the practice group co-chairs emphasize that it is the content and not the form of electronic information that governs. It is therefore critical to make clear distinctions between different types of official and business records. Ward adds, “I think that the federal government and the state government have done a decent job of listing the records they want you to keep, but the problem is, they don’t just list it in one section — you can find it all over the place.”
She has developed a comprehensive database that lists how long each type of document must be kept, along with other statutory information.
That is just one aspect of the types of services the practice group will deliver. “IT is playing a bigger and bigger role in these cases,” Ward says. “They know where that information is and how to retrieve it. I think having IT professionals on our team is one of the big differences here at Warner.”
And Yelton continues, “We have one of our people interview the company’s IT Department right at the start. That also helps us develop a budget in e-discovery.”
Warner Norcross will also have a state-of-the-art Data Solutions Project Management Center in Kalamazoo.
The categories of assistance the team handles are Information Governance, eDiscovery, Privacy and Security, and the all-important Employee Education and Training.
Attorney members of the team in addition to Ward, Yelton and Moore include: Michael G. Brady, a partner in the Southfield office; Norbert F. Kugele, partner and Certified Information Privacy Professional/US in the Grand Rapids office; Jonathan E. Lauderbach, former circuit court judge and partner in the Midland office with experience in procedural aspects of litigation/electronic records management; Brian P. Lennon, former federal prosecutor and partner in the Grand Rapids office; and Janet L. Ramsey, a partner and litigator also in Grand Rapids.
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