How To Write A Court Decision In A Case Involving A Power Of Attorney In The United States

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Key Issues in Electronic Discovery

Key Issues in Electronic Discovery

Richard A. Schneider Dan Hall Willoughby, Jr.

Matthew S. Harman Tuesday, July 19, 2005

12:30 – 1:30 p.m. EDT

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Richard A. Schneider dschneider@kslaw.com

404.572.4889

Doc Schneideris a litigation partner in the Atlanta office of King & Spalding. He joined the firm in 1981 and became a partner in 1988. Mr. Schneider also headed King & Spalding’s General Litigation team from 1993 to 1998. He specializes in class action litigation and internal corporate investigations.

Mr. Schneider has taken a lead role in internal corporate investigation, including investigating and reporting on the events leading up to the Exxon Valdezoil spill in 1989 and the breast implant controversy in the 1990’s.

Mr. Schneider is a frequent lecturer on class action, discovery and evidence issues. He has served as an Adjunct in at Emory University’s School of Law. Mr. Schneider founded an annual seminar in Georgia surveying the United States Supreme Court’s key decisions each year. He has served as Eleventh Circuit Membership Chair and Georgia Membership Chair for the United States Supreme Court Historical Society. Mr. Schneider was recently named as a Georgia Super Lawyer by Atlanta Magazine.

Mr. Schneider attended the United States Naval Academy Preparatory School and the United States Naval Academy from 1974 to 1977. He graduated, magna cum laude, from Auburn University with a B.A. in English in 1978. In 1981, Mr. Schneider graduated, summa cum laude, from Mercer University Walter F. George School of Law.

Mr. Schneider is a former Chairperson of the Board of Directors of UNICEF-Atlanta, and currently is a member of the Board of Directors of the Mercer University Press. He served for six year as a member of the Board of Visitors of Mercer University Walter F. George School of Law. Mr. Schneider is a member of the Board of Directors of CADEF: Childhood Autism Foundation, as well as a member of the Board of Directors of Theatrical Outfit.

Speaker Biographies

Speaker Biographies

Dan H. Willoughby, Jr. dwilloughby@kslaw.com

404.572.3391

Dan Willoughbyjoined the firm in 1986 and was elected partner in 1994. He is part of the litigation practice in the Atlanta office. His practice focuses on commercial litigation.

He is admitted to practice in Georgia; U.S. District Court, Northern District of Georgia; U.S. Court of Appeals, Eleventh Circuit; Georgia Court of Appeals; and Georgia Supreme Court. He is a member of the State Bar of Georgia, Atlanta Bar Association and American Bar Association. Mr. Willoughby received his J.D., magna cum laude, in 1986 from the University of Georgia and earned his B.A. from Duke University in 1982.

Speaker Biographies

Speaker Biographies

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Matt Harmanis an associate with King & Spalding’s Tort Litigation Practice, where he represents foreign and domestic companies in high exposure toxic tort and product liability cases. Mr. Harman’s recent experience includes:

• Part of trial team in Nichols v. General Motors, selected by the National Law Journalas one of the Top Ten Defense Verdicts of 2003.

• Defense of pharmaceutical manufacturer in nationwide litigation alleging link between company’s product and brain damage.

• Defense of respiratory protection equipment manufacturer in various asbestos and silica lawsuits brought in Mississippi, West Virginia, Texas and Illinois.

• Defense of premises owner in nationwide asbestos suits. • Defense of major paper manufacturer in wrongful death claims. • Defense of claims for toxic mold.

• Particular expertise in emerging issues of electronic discovery.

• Presented “Punitive Damages in Light of State Farm v. Campbell” at the October 2003 Mealey’s Conference on Silica Litigation.

Mr. Harman is the Co-Chair of the Website Committee of the ABA's Litigation Section, and he serves on the Professionalism Committee of the Georgia State Bar. He is a member of the Defense Research Institute, the ABA Litigation and TIPS Product Liability Sections, the Lamar Inn of Court and the Georgia Product Liability Committee.

Mr. Harman joined King & Spalding in 1999 after receiving his law degree from Harvard Law School. He graduated, summa cum laude, and Phi Beta Kappa with a B.S. in mathematics from the University of Kentucky.

Speaker Biographies

Speaker Biographies

Matt S. Harman mharman@kslaw.com

404.572.2807

Key Issues in Electronic Discovery

Key Issues in Electronic Discovery

Richard A. Schneider Dan Hall Willoughby, Jr.

Matthew S. Harman Tuesday, July 19, 2005

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A Cautionary Tale…

A Cautionary Tale…

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Importance

Importance

Communications in the last 10 years are predominantly electronic.

Companies and individuals have a duty to preserve relevant communications.

Law is adapting to meet the reality of electronic communication.

Volume of E-materials are enormous and require sound technology management.

Exposure is high and the risks and obligations must be managed.

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Topics

Topics

Current Legal Landscape

Proposed Amendments to Federal Rules

The Mechanics of Collecting and Producing Electronically Stored Information

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The Legal Landscape

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Many

Many

Legal Issues

Legal Issues

Preservation – What – When – How • Production – What – How • Cost Allocation – Who – How 6

How we got here…

How we got here…

National Union Electric Corp. v. Matsushita Electronic Industrial Co., 494 F. Supp. 1257 (E.D. Pa. 1980).

Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993).

Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1997).

Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 1050 (S.D. Cal. 1999).

McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C., 2001).

Rowe Entm't, Inc. v. William Morris Agency, Inc.,205 F.R.D. 421 (S.D.N.Y., 2002).

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Where we are…

Where we are…

Zubulake

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Zubulake v. UBS Warburg LLC

Zubulake v. UBS Warburg LLC

• 217 F.R.D. 309 (S.D.N.Y., 2003) (“Zubulake I”)

• 2003 U.S. Dist. LEXIS 7940 (S.D.N.Y., 2003) (“Zubulake II”)

• 216 F.R.D. 280 (S.D.N.Y., 2003) (“Zubulake III”)

• 220 F.R.D. 212 (S.D.N.Y., 2003) (“Zubulake IV”)

• 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., 2004) (“Zubulake V”)

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Overview

Overview

New test for COST allocation –Zubulake IAPPLICATION of new test –Zubulake IIIDuties of PARTY –Zubulake IV

Duties of COUNSEL –Zubulake V

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Cost Allocation

Cost Allocation

Rowe Entertainment v. Zubulake I and IIIEight v. Seven

Key: How important is the sought-after evidence in comparison to the cost of production?

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Cases citing

Cases citing

Zubulake I

Zubulake I

Ferguson v. Lion Holding, Inc., 2005 U.S. Dist. LEXIS 9789 (D.N.Y., 2005)

Xpedior Credit Trust v. Credit Suisse First Boston (USA), Inc.,

309 F. Supp. 2d 459, 461 (D.N.Y., 2003)

Wiginton v. CB Richard Ellis, Inc., 2004 U.S. Dist. LEXIS 15722 (D. Ill., 2004)

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Cases citing

Cases citing

Zubulake III

Zubulake III

Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 602 (D. Wis., 2004)

Thompson v. United States HUD, 219 F.R.D. 93, 98 (D. Md., 2003)

Brassco, Inc. v. Klipo, 2004 U.S. Dist. LEXIS 11164 (D.N.Y., 2004)

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Cases citing

Cases citing

Rowe Entertainment

Rowe Entertainment

Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 602 (D. Wis., 2004).

Thompson v. United States HUD, 219 F.R.D. 93, 98 (D. Md., 2003).

Medtronic Sofamor Danek, Inc. v. Michelson, 2003 U.S. Dist. LEXIS 14447 (D. Tenn., 2003).

Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 U.S. Dist. LEXIS 3196 (D. La., 2002). 14

Preservation

Preservation

Duties of PARTY

Duties of PARTY

NOT every shred of paper, e-mail and backup tape…

BUT consider information:

– Useful to adversary,

– Relevant,

– Likely to be requested, and/or

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Preservation

Preservation

Duties of PARTY

Duties of PARTY

Identify Key Players

Suspend document destruction

Issue “Litigation Hold”

Continue to recycle backup tapes? MAYBE

Depends on tape use and determination of “Key Player” information

Zubulake IV

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Cases citing

Cases citing

Zubulake IV

Zubulake IV

E*Trade Secs. LLC v. Deutsche Bank AG, 2005 U.S. Dist. LEXIS 3021 (D. Minn., 2005)

Hamre v. Mizra, 2005 U.S. Dist. LEXIS 8460 (D.N.Y., 2005)

Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595 (D.N.J., 2004)

Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (D.N.Y., 2004)

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Preservation

Preservation

Duties of COUNSEL

Duties of COUNSEL

Issue “Litigation Hold”

Communicate with Key Players, with periodic reminders

Instruct employees to produce electronic copies of relevant active files

Ensure retained data is identified and stored in a safe place

Zubulake V

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Cases citing

Cases citing

Zubulake V

Zubulake V

Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 600 (D.N.J., 2004)

United States v. Philip Morris USA Inc., 2005 U.S. Dist. LEXIS 5283 (D.D.C., 2005)

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Consequences:

Consequences: Sanctions

Sanctions

Monetary PenaltiesWitness ExclusionJury InstructionsDefaultCriminal Penalties 20

Resources

Resources

http://www.thesedonaconference.orghttp://www.kenwithers.comhttp://www.eedinc.comhttp://www.lexisnexis.com/applieddiscoveryhttp://www.fiosinc.comhttp://www.discoveryresources.orghttp://www.docuity.comhttp://www.renewdata.com

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Proposed Amendments to

Proposed Amendments to

the Federal Rules of

the Federal Rules of

Civil Procedure

Civil Procedure

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Affected Areas of Discovery

Affected Areas of Discovery

Rules 16 and 26(f) - Preliminary discovery conference

Rule 26(a) - Initial disclosures

Rule 26(b)(2) - Limits on production

Rule 26(b)(5) - Privilege claims on produced information

Rule 33 - Interrogatory responses

Rule 34(b) - Scope and form of production

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Rulemaking Process:

Rulemaking Process:

www.uscourts.gov/rules/

www.uscourts.gov/rules/

August 2004: Proposals released

February 2005: Public comment period closes, public hearings conclude

April 2005: Advisory Committee recommends revised drafts to Standing Committee

June 2005: Approval by Standing Committee

September 2005: Judicial Conference review

May 2006: Supreme Court review

December 1, 2006: New rules could take effect

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Early Attention to E

Early Attention to E-

-Discovery:

Discovery:

Rule 16 (Pretrial Conferences)

Rule 16 (Pretrial Conferences)

Intended to address E-Discovery issues at early stages of litigation

References “electronically stored information”

Scheduling order may include provisions for disclosure and/or discovery of electronically stored information

Scheduling order may include include parties’ agreement regarding assertion of privilege or work product claim after production

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Early Attention to E

Early Attention to E

-

-

Discovery:

Discovery:

Rule 26(a) (Required Disclosures)

Rule 26(a) (Required Disclosures)

References “electronically stored information” as part of 26(a)(1)(B) material that party may use to support its claims or defenses.

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Early Attention to E

Early Attention to E

-

-

Discovery:

Discovery:

Rule 26(f) (Conference of Parties)

Rule 26(f) (Conference of Parties)

Parties’ initial planning conference must include discussion of

Form of productionof electronically stored information

Privilege and work product issues, including post-production claims

Preservationof discoverable material

• Notes: Preservation orders should not be “routinely” entered, but when entered should be “narrowly tailored”

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Two

Two-

-Tiered Discovery:

Tiered Discovery:

Rule 26(b)(2) (Discovery Limits)

Rule 26(b)(2) (Discovery Limits)

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Identification of “not reasonably accessible” materials merely requires identification by category or type, and does not require an actual review of the inaccessible electronically stored information

If requesting party files motion to compel, and producing party shows undue burden or cost, court may only require

production for good cause shown, and court may also specify conditions for that discovery, including cost reallocation

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Two

Two

-

-

Tiered Discovery:

Tiered Discovery:

Rule 26(b)(2) (Discovery Limits)

Rule 26(b)(2) (Discovery Limits)

Court shall limit discovery if:

– Discovery sought is unreasonably duplicative, or is obtainable from more convenient source

– Party has had ample opportunity to obtain the information through other discovery

The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the parties’ resources, the importance of the issues in the case, and the

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Privilege Protection:

Privilege Protection:

Rule 26(b)(5)(Claims of Privilege)

Rule 26(b)(5)(Claims of Privilege)

Adds procedure for post-production privilege and/or work product claim (“clawback”)

If party discovers it has produced privileged materials or work product, it must notify receiving party and set forth in writing the basis for the privilege claim

If receiving party has disclosed the privileged information to third party, receiving party must take “reasonable steps” to retrieve the information

Receiving party must return, sequester or destroy all copies, and cannot use or disseminate the information until the privilege claim is resolved

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Interrogatories and RFPs:

Interrogatories and RFPs:

Rule 33(d) (Business Records)

Rule 33(d) (Business Records)

Includes “electronically stored information” among business records that may be produced in response to interrogatory

Producing party must ensure that requesting party can ascertain the information as readily as it can, and the

producing party may be required to provide technical support to facilitate the review

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Interrogatories and RFPs:

Interrogatories and RFPs:

Rule 34 (Production of Documents)

Rule 34 (Production of Documents)

Requesting party may specify the form of production

If responding party objects to form specified, it must state its grounds and an alternative form

If no form specified, responding party must state form it plans to use; but electronically stored information must be produced in the form in which it is “ordinarily maintained” or in a

“reasonably usable” form

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Safe Harbor from Sanctions:

Safe Harbor from Sanctions:

Rule 37(f) (Sanctions for Electronically

Rule 37(f) (Sanctions for Electronically

Stored Information)

Stored Information)

Recognizes that ordinary business operations may result in loss of information without culpable conduct

Absent “exceptional circumstances,” court may not sanction a party for failing to provide electronically stored information lost as a result of the “routine, good faith operation of an electronic information system.”

Good faith may require party to impose a litigation hold, comply with preservation agreements, and comply with court orders related to preservation

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Rule 45 (Subpoena)

Rule 45 (Subpoena)

Includes “electronically stored information”

Parallels Rules 33 and 34 with respect to form of production, two-tiered scope (“not reasonably accessible”) and procedure for post-production privilege claims

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Proposed Rules and

Proposed Rules and

Advisory Committee Notes

Advisory Committee Notes

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The Mechanics of

The Mechanics of

Electronic Production

Electronic Production

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The Six Stages of Electronic Production

The Six Stages of Electronic Production

1. Identification 2. Preservation 3. Collection 4. Processing 5. Review 6. Production 38

Stage One

Stage One –

Identification

Identification

Key personnel

Reasonably accessible systems/data

Begin with:

– Interviews of individuals

– Examination of client’s electronic systems – Understanding of retention policy

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Stage One

Stage One –

Identification

Identification

Sources of Electronic Data

Messaging Systems

– E-mail – IM

Document Management Systems

Laptops and PDA’s

Internal websites

Group network shares

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Stage One

Stage One –

Identification

Identification

Challenges

Former employees

Legacy systems

Private folders

Multiple locations

Administrative assistants for principals

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Stage Two

Stage Two

Preservation

Preservation

Halt any known process which may be deleting/overwriting identified materials.

Send written legal hold notice with express reference to electronic documents.

Confirm that this is in fact happening with operational level personnel, e.g., tape library operator. Routinely reconfirm.

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Stage Three

Stage Three –

Collection

Collection

Aggregate identified data

Retrieve:

– Forensic capture

– Use of designated mailbox

Deliver:

– Export of e-mail to tape/disk

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Stage Three

Stage Three –

Collection

Collection

Challenges

Lack of a structured collection plan.

Delegation of collection to personnel with inadequate technical expertise.

Collection via personal e-mail is discouraged for all but very specific requests.

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Stage Four

Stage Four –

Processing

Processing

Automate extraction of all field data and body text from identified files.

Placement of elements of files, such as TO, FROM, SENT DATE and the MESSAGE BODY, into a searchable database.

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Stage Four

Stage Four –

Processing

Processing

Deduplication

Removal of “duplicate” files to accelerate the review and eliminate inconsistencies.

Identification of duplicates:

– Non-email files: hash comparison

– Email files: criteria varies, commonly matching TO, FROM, CC, BCC, DATE/TIME_SENT, SUBJECT and number of attachments.

Entire population vs. individual custodian

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Stage Four

Stage Four –

Processing

Processing

Challenges

Password protected files

Corrupted files

Proprietary files

Files with external data sources (commonly Excel spreadsheets)

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Stage Five

Stage Five

Review

Review

Tagging For:

– Responsiveness – Privilege – Confidentiality

Online vs. Paper: An Important Decision

Accuracy/Speed/Cost/Volume/Critical Mass

Depends on document set

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Stage Five

Stage Five

Review

Review

Time-saving options

Filter by:

– Custodian – Date – Key words

Identify presumptively privileged items for immediate screening with name or term search.

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Stage Five

Stage Five

Review

Review

Challenges

Volume

Related documents (e.g., e-mail strings)

Attachments

Multiple databases

Proper multi-tier review for privileged items

Viewing Excel formulas (not available with plain extracted text or visible on a TIFF graphic)

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Stage Six

Stage Six –

Production

Production

Common forms of production

Paper

Native Files: Word documents, Excel files, etc.

TIFF files: Images = Electronic Snapshot

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Stage Six

Stage Six –

Production

Production

Actual handoff of documents

Paper: Primitive, but not always a bad idea.

CD: Common but increasingly obsolete due to size limitations.

DVD: 12x the data of a CD.

Flash Drive: Up to 8 GB or 64 boxes of TIFF paper files.

Hard Drive: Up to 300 GB or 2,400 boxes of TIFF paper files.

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Stage Six

Stage Six –

Production

Production

General Considerations

Cost

Manageability

Client and co-counsel collaboration

Reciprocity

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Stage Six

Stage Six –

Production

Production

Challenges

Redaction

Renumbering

Indices

Metadata

Tracking Production History

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Summary

Summary

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Take Away Points

Take Away Points

Educate Yourself

Educate Client

Be Proactive – Discuss with client at outset of matter and identify existing forms of electronic data

Be Responsive – Implement litigation hold and determine effect on retention of electronically stored information

Address issues with opposing counsel at the planning conference to streamline discovery procedures

Figure

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References

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