ESI PROTOCOLS &
CASE LONG BUDGETS
General Items Of Thought
• What’s a GB = ???
• What Are Sources Of Stored Data?
• What’s BYOD mean???
Litigation Hold – Duty Arises When?
Zubulake v. UBS Warburg, LLC 220 F.R.D. 212 (S.D.N.Y. 2003)
A litigation hold refers to a company’s
affirmative acts to
preserve paper or electronically stored documents
relating to
the subject of current or impending litigation. The purpose of
a litigation hold is to
prevent the destruction of relevant data
,
and to
ensure employees are apprised of their employer’s
document preservation obligations
. “[o]nce a party
Common Law Duty to Preserve
• Reasonable anticipation of litigation is triggered by:
– An internal email stating, ”Boy, we really messed
this project up and are sure to be sued”.
– Approaching outside counsel to discuss the filing
of a complaint against another party.
– The receipt/filing by your client of a complaint.
• Do you wait for an action to be filed?
• Do you advise in advance – play the risk
manager role and be a hero or a villain?
• What are your client’s policies?
– “[t]he adoption and consistent application of an
organization’s policy or practice regarding
preservation obligations may tend to show
You Must:
–
Promptly implement an effective litigation hold
–
Ensure that all relevant sources of potentially
relevant information are pinpointed and
preserved
–
Interview key employees involved in the
impending litigation
•
How do they handle & store emails
“[w]hile a litigant is under no duty to keep or
retain every document in its possession, even
in advance of litigation it is under a duty to
preserve what it knows, or reasonably should
know, will likely be requested in reasonably
foreseeable litigation.”
• What should you consider?
– How is their electronic data maintained & retained?
– Are there procedures in place that create a danger of
evidence destruction,
• Automatic email deletion • Rewriting on backup tapes
– Regularly evaluate your document retention policies –
opportunity to assess in advance of litigation if there are
shortcomings that require retooling the fix them
– FRCP, Rule 37(e), absent exceptional circumstances, a court
may not impose sanctions for failing to provide
• Interview your information technology
personnel to determine:
– Document retention policies being applied, if any
– Nature of the company’s technological
infrastructure
– Feasibility of suspending practices that might
• Distributed to those who may be “potentially”
relevant to the anticipated litigation
• Meaning those:
– Who generated relevant documents
– Who received the relevant documents
– Who maintain the information
• Description of the case
• Identification of what documents should be preserved and
how
• Instruction that any automatic email deletion setting should
be turned off
• Instruction to search for documents or information relevant to
the litigation, while erring on the side of preservation
• Identification of the consequences to the company and its
employees for failure to heed the litigation hold directives
• Contact information for the person(s) overseeing data
preservation or electronic efforts
• Apple v. Samsung
– $2.5 Billion at stake
– Samsung issued a litigation hold to identified employees acknowledging the “reasonable likelihood of future patent litigation” with Apple
– Failed to suspend its automatic 14-day email destruction policy a
– Failed to send hold notices to other key custodians when litigation was reasonably foreseeable
– Failed to verify or monitor it was being followed
– Samsung’s lead product designer’s failed to produce a single email and others only a handful
– Judge’s statements
• “duty to preserve isn’t satisfied by just sending out the hold notice” • “both sides had obligations to preserve their documents”
• “Apple must have known it was a two-way street. Apple was a victim of its own success”
– Samsung’s practices resulted in prior sanctions – Apple wasn’t playing fair either
• Imprisonment
– 2 year jail sentence for the president of the company intentional spoliation of relevant documentation (Victor Stanley, Inc. v. Creative Pipe, Inc)
• Criminal Prosecution – BP Oil Spill
– USA v Kurt Mix – destroyed pertinent information despite repeated requests directly to him to preserve. The problem: it was all recoverable by some very smart people
• Jury Instruction
– Mandatory presumption
– Certain facts be deemed admitted & accepted as true – CA Civil Instruction 204
“You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party”
• State Bar & Sanctions (Qualcomm v Broadcom 2009)
– Qualcomm’s counsel alleged to have destroyed and or concealed documents
– Counsel for Qualcomm referred to the State Bar for ethics violations and were cleared – Qualcomm paid $9.26 million to Broadcom for “aggravated litigation misconduct”
• Case or Issue Determining Motion or Ruling
ABA Proposed Revision – Competency of Counsel
• To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, including the benefits and risks associated to relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
• ABA Commission explained that this phrase pertains also to "how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved . . .
'notable developments' in technology that have impacted the practice of law to include electronic communication; mobile electronic storage;
CA Rule of Court 3.724 – Duty to Meet & Confer
• Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following:
• (1) Resolving any discovery disputes and setting a discovery schedule;
• (8) Any issues relating to the discovery of electronically stored information, including:
– (A) Issues relating to the preservation of discoverable electronically stored information; – (B) The form or forms in which information will be produced;
– (C) The time within which the information will be produced; – (D) The scope of discovery of the information;
– (E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;
– (F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;
– (G) How the cost of production of electronically stored information is to be allocated among the parties; – (H) Any other issues relating to the discovery of electronically stored information, including developing a
proposed plan relating to the discovery of the information; and
Code of Civil Procedure 2031.060 (a) & (f) (California Electronic Discovery Act)
(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(f) The court shall limit the frequency or extent of discovery of electronically stored
information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exist:
(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.
(2) The discovery sought is unreasonably cumulative or duplicative.
(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.
Rule 3-110 - Failing to Act Competently
• (A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
• (B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.
• (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such
Rule 3-210 Advising the Violation of Law
• A member shall not advise the violation of any law, rule, or
ruling of a tribunal unless the member believes in good faith
that such law, rule, or ruling is invalid. A member may take
appropriate steps in good faith to test the validity of any law,
rule, or ruling of a tribunal.
Rule 5-220 Suppression of Evidence
93% of all business records are stored electronically, and of that amount, less than 30% are ever printed to paper.
The average worker receives
approximately 55 e-mails every day.
Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.
Cooperation does not conflict with the advancement of their clients’ interests - it enhances it. Only when lawyers confuse advocacy with adversarial
• Utilizing internal ESI discovery “point persons” to assist;
• Exchanging information on relevant data sources,
including those not being searched, or scheduling early
disclosures on the topic of Electronically Stored
Information;
• Jointly developing automated search and retrieval
methodologies to cull relevant information;
• Promoting early identification of form or forms of
production;
• Developing case-long discovery budgets based on
proportionality principles
Biggest Risks: Sanctions
As recently as 2003, there
were only seven
Defendants were sanctioned
three times more often than
plaintiffs
The most common
Preservation and
collection of the
data in the most
forensically
sound way is a
How the ESI was gathered. Where the ESI was stored.
Who had access to it. Establish the chain-of-custody Whether other ESI was also located. Whether a thorough search was conducted.
Rule 26 (f) ESI Protocol
An ESI Protocol is designed to minimize waste in the review process
Nail Down Technical Specs
In order for document
productions to be as
reasonably complete as
possible, parties should
begin first and foremost by
drawing and defining all
sources of potentially
IT Custodian
Individual Custodian
The purpose of the “IT
Custodian” interview
is to identify all
computer and archive
systems that could
It is important to be aware of common IT Custodian pitfalls and dangers prior to the interview:
Assume that the IT Custodian will be “hostile” to the interviewer
There is no “win” in this situation for them
IT Custodians may fear reprisals from management because: backups may not have been correctly carried out even though regulations require them.
IT Custodians may act territorially in protecting ESI from leaving the corporation due to security concerns.
• Laptop and desktop computers
• External hard drives, CDs, DVDs and USB thumb drives • Blackberries, iPhones, smart phones
• Network shared folders
• Web based email accounts, social media profiles
Individual Custodians should ideally be interviewed following the
IT Custodian interview to identify and memorialize
all potentially relevant sources of ESI such as:
Make sure to compare the computer sources identified by Individuals to those identified by the IT Custodian(s) to identify
A source custodian is defined as a computer storage device, such
as a departmental shared folder that is believed to contain ESI
saved, used or accessed by more than one Individual Custodian
and is therefore impossible to identify by one Individual
Custodian’s name.
• Example: The Directors and
Officers of a company who
created a policy that may have
contributed to an action.
“Priority Custodians” are defined as custodians reasonably believed to be more relevant to this
action than other identified custodians, or “Secondary Custodians”. “Secondary Custodians” would be the subordinates of the “Priority Custodians”
A method to limit scope of ESI that will be
Each review platform
requires different
“load files” and costly
technical time will
result if this key piece
of information is not
disclosed upfront.
Excel Spreadsheets shall be
produced both in native
format and as converted to
single page Group IV,
300DPI Black & White TIFF
images. The native format
production Excel files will be
named according to a
control number placed
before the original file
name: E.g.
Email may be easily de-duplicated so
that litigants do not need to pay outside
Discovery will be limited in scope to ESI
in the parties’ custody, possession or
control beginning on Month Date, Year
The production in this action of any
electronically stored information or
other information that is subject to a
claim of privilege shall be deemed to
be inadvertent and to be without
Early Case Assessment
Technology
Native File Review/TIFF
responsive only
Services
Quantity
Price
3rd Party
Total
Full TIFF Processing 50GB $800/GB $40,000.00 Hosting for 1 Year 50GB x 12 Mos. $30/GB $18,000.00
Services
Quantity
Price
3rd Party
Total
Processing Native Review 50GB $400/GB $20,000.00
Production Set Creation 1GB / 7,000 docs $800/GB $800.00
Hosting for 1 Year 50GB x 12 mos. $18,000.00
