The Essentials of
E-Discovery
Discovery Solutions and Labor and Employment Groups
Webinar May 7, 2009
Today’s attorneys and some notes...
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Jim Anelli
Newark
Bill Belt
Usage
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The Essentials of E-Discovery
Introduction to
Terminology
ESI – Electronically Stored Information
Megabytes – a Paperback
•
Emails, PDF’s
Gigabytes – a Pickup Truck of Paper Backs
•
Email “stores” like PST’s and OST’s
Key Dates
2000 – Judge Scheindlin coins term “ESI” in BC Law Review
Article.
2000 – Chair of the Advisory Committee lays out mission to
create changes in rules for ESI.
October 2002 - Sedona Conference forms.
May 2005 – Advisory Committee submits proposed changes to
Standing Committee on Rules of Practice
November 2005 – Standing Committee approves Advisory
Committee’s proposed changes without amendment.
April 2006 – United States Supreme Court approves changes
without amendment.
December 1, 2006 – Effective Date for New Rules
Why This Matters
Evidence is Electronic
•
95% of documents are electronic
•
Most never get printed
Why Electronic Discovery is Different
Sheer volume
of electronically stored
information (ESI)
•
Newly stored electronic information grew at an
estimated 30% per year from 1999 to 2002 (per
2003 Berkeley study). Still growing.
•
Typical 2 gigabyte (GB) user mailbox = about
17,000 emails & 6,000 attachments = about
50,000 – 100,000 pages
Discovery is Different
ESI from 20 Employees Paper from 20 Employees
Data from back-up tapes (2 million pages)
Paper from “Cold Storage”
75 boxes (about 175,000 pages)
Data from servers (databases, shared drives)(1 million pages)
Paper from each department: average about 10 boxes X 5 departments
(about 125,000 pages)
2 gigs of emails from each hard drive plus electronic documents
(1 - 2 million pages) Paper from each individual: average
about 2 boxes per witness (about 100,000 pages)
It’s Qualitatively Different
Informal
– email partial substitute for meetings &
telephone. Can contain off-hand comments,
half-jokes, and other statements lacking reflection
Dynamic
– changes/deletes, often automatically
•
Email retention policies on Inbox: auto-delete after 90
days
•
VM auto-delete
•
Browser history
Difficult to “Find”
Many copies
, which are
scattered
(and
across different kinds of storage)
Related:
hard to truly “delete
”
Related: often
disorganized
; ESI often in
myriad subjects in same “container”; often
not in particular subject-based files, like
paper
Finding Email is Difficult
“Enterprise” E-Mail Solutions
•
Microsoft Outlook (Exchange Server)
•
Novell Groupwise;
•
Lotus Notes (IBM) (Domino Server)
•
Archiving systems (e.g. Enterprise Vault “KVS”,
EmailXTender, Zantaz, UMB)
Other Locations:
•
Hard Drives: Archives, Personal Folders, OST’s;
•
BlackBerries – devices and BlackBerry Enterprise
Server
Electronic Documents Matter
•
Microsoft Word, Excel, PowerPoint; PDFs
•
Stored locally or on network’s individual share;
&/or on network shared drive.
•
Some people organize their documents; others
don’t
•
SharePoint
•
E-Rooms
Other Types of Electronic Information
Databases
Document management and imaging systems
• E.g. Documentum (in pharmas.)
• E.g. IBM’s FileNet (imaged contracts or human services case management system)
Some tendency for construction contractors to image their
materials on large projects
• E.g. Microsoft SharePoint
Browser history, cookies, cache
• Employment cases (allegedly hostile work environment)
VM
• Sometimes in email (.wav files, “unified messaging”)
Instant messaging
ESI Special Cases
Backup tapes
•
Usually, not always, for disaster recovery (instead of
archival)
•
Often run nightly, usually overwritten on a schedule
•
Generally not searchable by text
•
Index Engines
•
May have to restore entire email database to restore a
single email
More ESI Special Cases
Forensic Deep Dives
•
Deleted/fragmentary files
–
Recovery bin
–
File allocation table entry deleted but file still whole
–
Partially overwritten (fragments)
The Rules
FRCP E-Discovery Practice
Rules 16 and 26(f)
•
Meet and Confer at least 21 days before Rule
16(b) scheduling conf. Rule 26(f)
Initial Disclosures & Early Meeting of
Parties
•
Preservation
•
Production format
Preservation
“
Preservation
”: duty to preserve relevant evidence
arises when a party should have known that the
evidence may be relevant to future litigation. Fujitsu
Ltd. v. Federal Express Corp., 247 F.3d 423, 435 (2d
Cir. 2001).
– Defendant has notice of foreseeable litigation at time of complaint and sometimes earlier
– Plaintiff foresees litigation well before service of complaint – Preservation (“litigation hold”) notice
• To whom (besides IT)? Who are custodians?
Initial Status Report to the Court
• ESI added to list of initial disclosures that parties must provide to other party w/o waiting for discovery request, under Rule 26(a)(1)(B) “a copy of, or description by category and location of … ESI …that the disclosing party may use to support its claims or defenses”
• Pretrial scheduling order may include “provisions for disclosure or discovery of [ESI]” and may include any
agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production” (Rule 16(b))
– W/i 90 days after defendant’s appearance & w/i 120 days after service of complaint
Extent of Production – Undue Burden
• “Undue burden”: “A party need not provide discovery of [ESI] from
sources that the party identifies as not reasonably accessible because of undue burden or cost….If [such] showing is made, the court may
nonetheless order discovery from such sources if the requesting party shows good cause … The court may specify conditions for the
discovery.’ Rule 26(b)(2)(B)
– “Good cause” to order production of inaccessible information: Advisory
Committee factors: “(1) the specificity of the discovery request; (2) the quantity of information available for other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and
usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.”
Cost Shifting
Extent of Production – Rules 26(b)(2)(B) and 45(d)(1)(D)
• Cost shifting: case law factors: extent to which request is specifically tailored to discover relevant information; the availability of such info from other sources; the total cost of production, compared to the amount in controversy; total cost of production, compared to the resources available to each party; relative ability of party to control costs and its incentive to do so; importance of the issues at stake in the litigation; relative benefits to the parties of obtaining the information. Zubulake v. UBS Warburg, 217 F.R.D. 309 (SDNY 2003) (Zubulake I).
– Plaintiff (individual) pays 25% of $166K tape restoring cost. Zubulake, 216 FRD 280 (SDNY 2003)(Zubulake II)
Production Format - Critical
Form of Production –Rules 33, 34, & 45
• “Form of production” Rule 34(b).. “The [document] request may specify the form or forms in which [ESI] is to be
produced. …[Objections shall] include [any] objection to the requested form or forms … If objection is made … -- or if no form was specified in the [document request – the responding party must state the form or forms it intends to use. … Unless the parties otherwise agree, or the court otherwise orders: … (ii) if a [document] request does not specify the form or
forms…, a responding party must produce … in a form or forms in which it is ordinarily maintained or … that are reasonably usable; and (ii) a party need not produce the
Legal Standard for Productions
“Reasonably useable” means can’t be more
difficult or burdensome for requesting party.
Committee Note.
TIFF’s, Text and Designated Fields
• Image file format commonly used in major lit support software (Concordance, Summation)
• Searchable Text
• Designated metadata fields
Natives
OR: Leave in “Native” format
– File format as producing party used it, e.g. Word (.doc), Excel (.xls), Exchange email (basically .msg), etc.
– Usually searchable
– Includes all/most metadata; though query what % is important – Easier to alter w/o detection, absent hashing. Workarounds for
Bates stamping; really none yet for redacting;
Suggested compromise:
– TIFF plus text of emails and other searchable documents)
– Natives of spreadsheets, Word, PowerPoints, Wav, Video (on request)
“Protection” of Privileged Information
“Clawback” agreement: stip that production doesn’t mean privilege waiver; and if producing party identifies documents inadvertently produced, responding party should return them.
“Quick peek”: stip that receiving party gets to look at documents
before privilege review and production, and to designate documents believed responsive.
Problems:
• Opposing counsel learns what they shouldn’t; can’t unring this bell
• Third parties (e.g. in related cases) will be able to use material, despite clawback
• Doesn’t modify underlying privilege law of how long producing party has to realize error, how wide waiver is.
• Ethical duty to preserve client secrets
Similar “protections” for subpoenaed third parties under Rule 45(d)(2)(B)
FRCP: Sanctions
•
Sanctions can be severe; e.g adverse inference
jury instruction; i.e. that the jury may infer that
the lost ESI would have been unfavorable to
the sanctioned party. (Zubulake)
•
Sanctions can be on counsel: failure to oversee
client, who (even as an apparent power user)
did not realize there were parts of the file server
other than his network share. (Phoenix Four v.
Strategic Resources Corp., 2006 U.S. Dist.
FRCP: Sanctions
Rule 37(f)’s shallow “safe harbor”: “Absent
exceptional circumstances, a court may not
impose sanctions under these rules on a
party for failing to provide [ESI] lost as a
result of the routine, good faith operation of
an electronic information system.”
FRCP: Sanctions
“absent exceptional circumstances”
•
unclear; extreme prejudice?
“sanctions under these rules”
•
court could still order additional depositions, other
discovery to make up for lost ESI; not “sanctions”
“on a party”
FRCP: Sanctions
“[ESI] lost as a result of the routine, good-faith operation”
• Committee Notes cite as factors: Steps taken to implement litigation hold; accessibility of system; whether party should have known of loss; and whether unavailable from any other source.
• High-value case: set aside backup tape, forensic copy, etc.?
– Set aside all backup tapes??
• “Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether
FRCP: I just got a new case: Collection
Self-collection vs. by client IT vs. by lit support
vendor
•
Users didn’t know of server partition to which they didn’t
have access; drive mapping on that PC not configured
to map to partition. 25GB of data discovered late. $10K
sanctions against them and counsel. Phoenix Four v.
Strategic Resources Corp., 2006 U.S. Dist. Lexis 32211
(SDNY 2006)
•
IT: how will they come across as witnesses?
FRCP: I just got a new case (con’t):
Collection
Forensic collection
Costly. Consider it when important files may
be at least partially overwritten or where
tampering with evidence a possibility
Can help show good faith if concerned
FRCP: I just got a new case:
Production
Examples of native file formats (and metadata)
•
Word
– Last “author”, last saved, create date, template, etc. Not usually very probative.
– Tracked changes, comments
•
Excel
– Word kinds of metadata, plus …
– Formulas, hidden rows/columns
•
Good case for native production or review: Lotus Notes
used as document management system
– In re Telxon Corp. Sec. Litig., 2004 U.S. Dist. LEXIS
27296 (N.D. Ohio 7/16/2004). Tracked real author, date modified, types of documents; links to other documents.
Team Coordination
Client – General Counsel and IT
Electronic Discovery Vendors Outside Trial and Electronic
Make Use of
Excellent
E-Discovery Tools
ILTA 2008 Technology
Example of native review tool:
kCura Relativity
E-Discovery Readiness
Goals
•
Prevent judgments and settlements that are higher than
necessary because of the misunderstanding of
electronic evidence
•
Control spending on e-discovery costs (service bureaus;
contract attorneys and outside counsel reviewing
hundreds of thousands of pages of email)
E-Discovery Readiness:
Medium Run
Catalog and understand IT systems from
which most common e-discovery ESI
comes. Helps when you’re short of time
•
E.g. leading up to FRCP 26(f)
meet-and-confers
•
E.g. new document request received
•
E.g. preparing to defend Rule 30(b)(6) IT
witness
E-Discovery Readiness:
Medium Run
Lawyers should make friends with IT well in advance
• Very different cultures
• Both concerned with fire-fighting, but very different kinds of fires
• Many litigators don’t understand difficulty of running an enterprise
• IT doesn’t always understand need to support litigation; still new
• Lawyers should ask (nicely) to see network diagrams, data centers, understand architecture
E-Discovery Readiness:
Long Run
Topics to focus on include …
Retention policies
– Go-forward email
– How to apply retention on 100+ emails a day on different subjects?
• journal email?
• What to do with existing e-mail
– What is typical amount of existing email people have?
– Litigation holds: How much anticipated litigation? Specific to particular business units?
– Manual review of existing email vs. Auto-categorization??
Backup tapes
• Just for disaster recovery, not archiving
• Index Engines for review of old tapes Problems of VM, video.
E-Discovery Readiness:
Long Run
Possible partial solution: Increasing centralization
of email & documents
•
Buy enough server storage that you can eliminate
PSTs and also force saves to a network drive (not to
local C: drive). Saves money on collection costs.
•
Systems to do Lexis-like searches across multiple
mailboxes
– E.g. Clearwell Intelligence?
•
System to put litigation holds on individual emails and
documents
E-Discovery Readiness:
Long Run
Consider requiring users to have email and document
structure that follows standardized structure by subject. Note
big cultural change.
Possible partial solution: Document management systems
• Documentum, IBM/FileNet, Interwoven
• Enterprise-wide organization, by matter/project; granular security; searchable
• Advantage: One source for documents
• Advantage: fewer documents to process; saves $
• Advantage: Can put individual emails in; though not a substitute for email server or enterprise email archive
• Advantage: can be attached to RM system to delete documents after retention period has run
