E-Discovery and Electronically
Stored Information (ESI):
How Can It Help or Hinder a Case?
Federal Actions to Compel Arbitration
Presentation ...33
Presentation
eDiscovery and Electronically Stored Information (ESI):
What is it and how can it help or hinder one's case?
This presentation will focus on cost- effectively identifying, preserving, collecting, reviewing, and producing ESI in legal or regulatory matters, including how to manage ESI in response to litigation holds, how to implement litigation holds, and how best to comply with e- discovery requests. A custodian of records’ critical role relative to ESI will also be highlighted.
Presented by Rosevelie Marquez Morales, Harris Beach PLLC
34 ■ Nursing Home/ALF Litigation ■ September 2014 WHAT ISELECTRONICDISCOVERY?
The identification, preservation, collection, review, and production of electronically stored information (ESI) relevant to a legal or regulatory matter.
KEYTERMS:
Preservation is a broadly-defined duty to retain, in the form it is kept by the organization, all documents which may potentially be relevant to the litigation.
Collection is the aggregation of documents likely to be related to the litigation and requiring either production or attorney review to determine their responsiveness.
Production is a narrower obligation to produce documents responsive to a specific demand or subpoena. The form of the production is either as the documents are kept in their ordinary course of business or pursuant to meaningful production categories.
Document: Paper documents, computer files, recordings, databases or compilation of the above. Business record: A document that records business dealing.
Record Custodian: The individual or department responsible for the disposition of the record. Life cycle: Every document should have a life cycle. This spans from creation to final disposition. Disposition schedule: Defines how long categories of documents need to be preserved.
Litigation Hold: Suspends normal disposition schedule and requires the preservation of relevant material.
LEADINGCASELAW
FAILING TO PRESERVE
Zubulake v. USB Warburg, LLC et al., 229 F.R.D. 422; 2004 U.S. Dist. LEXIS 13574; 94 Fair Empl. Prac. Cas. (BNA) 1; 85 Empl. Prac. Dec. (CCH) P41,72;
Pension Committee of Montreal, 2010 U.S. DIST. LEXIS 4546
In Pension Committee of Montreal Judge Scheindlin (Author of Zubulake) stated:
"By now it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records—paper paper or electronic—and to search in the right places for those records, will inevitability lead to the spoliation of evidence."
and
"By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence."
FAILING TO PRODUCE
Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)
Qualcomm produced emails suggesting JVT participation. Jury found for Broadcom. Award of $9.2M attorney fees and $8.5M in interest
Lessons Learned: Lack of Good Faith = Sanctions
• Not ensuring a proper search. “Producing 1.2M marginally relevant documents while hiding 46K of critically important documents does not constitute good faith.”
• Agreeing to produce categories of documents and then not producing all documents in that category is not good faith.
Possibilities
• Qualcomm hid the documents really well from their lawyers
• The lawyers failed to discover the intentionally hidden documents or suspect their existence due to their complete ineptitude and disorganization.
• Qualcomm shared the damaging documents with its retained lawyers (or at least some of them) and the knowledgeable lawyers worked with Qualcomm to hide the documents and all evidence of Qualcomm's early involvement in the JVT.
• Qualcomm did not tell the retained lawyers about the damaging documents and evidence, the lawyers suspected there was additional evidence or information, but chose to ignore the evidence and warning signs and accept Qualcomm's incredible assertions regarding the adequacy of the document search and witness investigation.
Sanctionable Attorney Failures
• Failure to conduct a reasonable search
• Failure to make a reasonable inquiry to determine if responses were sufficient and proper • Failing to inquire about where Qualcomm searched and to check that search
• Failing to appreciate difficulty with 30(b)(6) witnesses
• Junior attorney rebuffed for more searches by client failed to alert senior attorneys • Failing to appreciate significance of documents the lawyers did review
• Trial counsel was not aware of the content of many documents • Poor oversight of junior attorneys
• Failing to evaluate the accuracy of their client’s assertions Pension Committee of Montreal, 2010 U.S. DIST. LEXIS 4546
FAILING TO PRODUCE TIMELY
PHOENIXFOUR, 2006 U.S. DISTLEXIS 32211
36 ■ Nursing Home/ALF Litigation ■ September 2014
Attorney Failure: The attorneys should have asked what happened to the computers and then sought an
inspection of those computers by a technician not withstanding their client’s assertion that no responsive documents would be found in that repository. Finding was gross negligence.
WHOSHOULDPAY
FEDERAL– USUALLY THE PRODUCING PARTY
MANYSTATES MOVING TOFEDERALSTANDARD.
WHATSHOULDYOUKNOW TO BEPREPARED?
Structure of IT Department System Profile
Internet/Intranet Back-up and Retention Maintenance
Chain of Custody/Authentication Database Management System
COMMONECONOMICPITFALLS
Failing to preserve
TYPICALCOST ANDBENCHMARKS TOASSIST INBEINGCOSTEFFECTIVE
Processing $250 - $500/GB Hosting $500-$1,000/GB Scanning $0.12/page
Tiff – $0.04/page; OCR $0.04/page 50,000 pages/GB or 10,000 documents
Experienced lawyers can review and code 400-800 documents per day.
COMMONPRESERVATIONTECHNIQUES:
Litigation hold
Identification of likely repositories Collecting pre-suit
Make sure you “source” everything as part of your collection effort Overall Record Management
SAMPLELITIGATIONHOLDLANGUAGE:
Re: Paper, Electronic and Tangible Evidence Preservation Notice Plaintiff v. Defendant
Dear Client:
To follow up on our recent conversation about the need to institute a litigation hold at
[
[CCOOMMPPAANNYYNNAAMMEE]]..[[DDeessccrriibbeetthheeffaaccttssttrriiggggeerriinnggtthheenneeeeddffoorrtthheehhoolldd……..}}
The [[ddeessccrriibbee ttrriiggggeerriinngg eevveenntt ––] now causes us to reasonably anticipate litigation.]
Accordingly, under both federal and state common law [[CCOOMMPPAANNYYNNAAMMEE] must start]
preserving documents (electronic or paper) as well as any other tangible evidence. Your preservation obligations also require that you suspend any normal or routine document destruction policy that may otherwise cause paper or electronic documents relating to this case to be deleted or discarded.
Please review your files for any documents (paper or electronic) which may address
[
[EEVVEENNTT]. This would include] [[IInnsseerrttiitteemmssaassmmaayybbeeaapppprroopprriiaatteettooyyoouurrlliittiiggaattiioonn..]] Progress Notes
Lab Report;
38 ■ Nursing Home/ALF Litigation ■ September 2014
potentially relevant documents. When implementing this “litigation hold,” you should bear in mind that whatever process/safeguards are established, there also must be a process for monitoring compliance and for continuing to circulate reminders that such an arrangement is in effect and must be followed. This is not a one step process complete when the initial step has been taken. Those receiving notice should receive the message that there will be repeated follow up to assure that the documents continue to be preserved and that they remain available for potential production.
It is important that you keep a copy of each hold notice you send and have the recipient sign an acknowledgement that the notice was received and understood. This notice and acknowledgement may be used to demonstrate good faith in the event any relevant information is accidentally destroyed.
[If specific employees or individuals are known to have some involvement, identify them now so the letter is even more inclusive. For example…To help you identify some of the individuals who should receive a litigation hold notice, the following individuals were identified in the claim. . . . There may also be materials or documents relating to them and those similarly situated. Please ensure that we preserve databases relating to them that contain information regarding their payroll records, swipe or login information and phone records as well as communications including paper documents, electronic documents, and e-mail relating to their work. We should also preserve all for these individuals.]
To help you identify the categories of evidence you must preserve we are providing an attachment which seeks to identify the common repositories most organizations use to preserve documents and electronic records. This is not intended to be exclusive and we will need to meet with you and your company’s IT director to identify specifically the ones that may apply in this case and how to best preserve them while minimizing the impact this has on the cost and operations of the computer systems.
Generally, we ask that you consider all relevant electronic information within the company’s computer and telephone systems and storage servers. This would include removable electronic media, (CDs, DVDs, tapes) voicemail, USB drives, PDAs, laptops, personal desktops, and other electronic devices owned and/or operated on behalf of [Organization]. Should you locate any relevant information please advise me of its location and take steps to ensure that it is entirely preserved in its original location and format. Initially, any and all backup tapes or mirror servers containing this information must likewise be preserved. Sources of electronic information which must be safeguarded and preserved include, but are not limited to, e-mails, instant messenger conversations, text messages, and other electronic communication, word processing documents, spreadsheets, images and graphics, systems usage logs, databases, calendars, telephone logs, contact manager information, Internet usage files, and network access information. (Please refer to the attached document which contains a more comprehensive list of electronic information which must be preserved).
I would like to emphasize that you should not alter any of the electronic files that contain responsive materials. This information should not be packed, compressed, purged,
recycled, or otherwise disposed of unless a true and correct forensic copy of such
information is made. Backup tapes and mirror servers should not be recycled, overwritten, or otherwise altered or disposed of. Failure to properly safeguard and preserve this
If this correspondence is in any respect unclear, please contact me. Also, if you think any other person should receive this notice, please let me know and I will send them a copy as well and review their information. Thank you for your cooperation in this matter.
COSTSAVINGTIPS:
Reduce the review and production burden by only keeping necessary documents (i.e., institute Record
Management!)
Identify a discovery czar from IT. Preservation is inexpensive.
The cost of failing to preserve are staggering. Production and review are very expensive.
The costs of failing to produce are minimal—if the documents exist to be produced.
Process and review only the collections and documents likely to have relevant information.
Consider a new category of legal service, document counsel to conserve costs, minimize exposure and increase efficiency.
Start your preservation and collection efforts right away. For more information contact:
Rosevelie Márquez Morales Partner
HARRIS BEACH PLLC ATTORNEYS AT LAW New York City Office 100 Wall Street
New York, New York 10005 212.313.5458 Direct