• No results found

Data Preservation Duties and Protocols

N/A
N/A
Protected

Academic year: 2021

Share "Data Preservation Duties and Protocols"

Copied!
36
0
0

Loading.... (view fulltext now)

Full text

(1)

Data Preservation Duties and

Protocols

(2)

Discussion Outline

I. The Differences Between Electronic and Paper Discovery II. The Parameters of Electronic Discovery

III. Rule 37(e) (Sanctions for Destruction of Electronic Data) IV. Some Recent Sanction Cases

V. Preservation Duties May Be Set Via Agreement VI. Document All Efforts to Preserve ESI

VII. Steps to Consider

A. The “litigation hold” notice B. Assemble a discovery team C. Develop a discovery plan

D. Identify and interview key personnel

(3)

Discussion Outline (Cont’d.)

EXHIBITS:

A. Litigation Hold Notice

(4)

Differences Between Electronic Discovery (“ED”)

and Traditional Discovery of Paper Documents

1. There are more electronic documents and they are distributed more widely.

2. Content is not fixed.

(5)

The Parameters of Electronic Discovery

(6)

Economic Factors Shape the Scope of Electronic

Discovery

Rowe Entertainment, Inc. v. William Morris Agency: “Too often

[electronic] discovery is not just about uncovering truth, but also about how much of the truth the parties can afford to disinter.”

• Courts generally are receptive to discovery plans designed to keep costs in line with the nature of the case and the amount in controversy. • A $10,000 action will likely have different electronic discovery

(7)

Technical Factors Shape the Scope of Electronic

Discovery

• In some instances potentially relevant ESI may be located in countless far-flung locations (e.g., laptop and desktop computers, PDAs, removable media, back-up systems, storage systems, obsolete systems, etc.).

• Courts usually do not require a responding party to certify that it has identified every location where relevant ESI may be stored.

• Courts typically do not require a party to bear the burden of searching locations that are not reasonably accessible if the party can show that such a search would likely yield information that is largely duplicative of what already has been produced.

(8)

Rule 37(e) (Sanctions for Destruction of ESI)

Rule 37(e) of the Federal Rules of Civil Procedure addresses when sanctions are appropriate for destruction of ESI:

(9)

Sanctions for Destruction of ESI

The Committee Note to Rule 37(e) states,

Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain

features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation…..The good faith requirement of Rule 37([e]) means that a party is not permitted to

exploit the routine operation of an information system to thwart

discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve….

(10)

Sanctions for Destruction of ESI (Cont’d.)

Although it varies from jurisdiction to jurisdiction, the standard articulated in most of the cases for determining whether to assess sanctions for the destruction of evidence typically involves some form of analysis of three factors:

Whether there was a duty to preserve.

Whether there was breach of the duty to preserve.

(11)

Sanctions for Destruction of ESI (Cont’d.)

The penalties for spoliation include: • Monetary sanctions

• Preclusion of evidence

• Spoliation instructions to the jury • Striking pleadings.

(12)

United Medical Supply Co. v. U.S.

• United Medical sued the U.S. government regarding a supply contract for numerous medical treatment facilities (“MTF’s”) in Texas and Oklahoma.

• A government attorney sent out an e-mail to each MTF asking that all records and correspondence relating to United Medical be preserved.

• The government’s counsel advised plaintiff that extensive efforts had been made to locate responsive ESI and that all responsive e-mails had been produced.

• This turned out not to be the case. Instead, the government continued to destroy relevant, unproduced material after advising plaintiff and the court that all responsive information had been produced.

The court imposed spoliation sanctions despite finding that there was no

evidence of bad faith destruction.

(13)

Doe v. Norwalk Community College

• Plaintiff sued a community college for injuries suffered as a result of a sexual assault by an employee.

• The court found that the defendant failed to preserve ESI on the computers of key witnesses.

The court held that a duty to preserve arose before the action was

filed, when the college received a demand letter announcing plaintiff’s

intention to sue.

The court held that the Rule 37(f) good faith exception was not available because it found that the defendant made no effort to put

relevant information on “litigation hold”.

(14)

Qualcomm v. Broadcom

• Qualcomm ordered to pay more than $8.5 million in sanctions for “monumental and intentional discovery violation.”

• Six attorneys referred to CA State Bar for “intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its was adequate.”

• Attorneys used alleged lack of knowledge to “repeatedly and forcefully make false statements and arguments to the court and jury.”

• Not a cautionary tale because it turns on willful and egregious misconduct rather than negligence.

(15)

Preservation and Production Agreements

Rule 26(f) requires parties to meet and confer to discuss:

• “Any issues relating to preserving discoverable information”

• “Any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced”

(16)

Preservation and Production Agreements (Cont’d.)

The Committee Note to Rule 37(e) states that whether a party has complied with a court order or party agreement relating to the preservation of ESI will bear on the consideration of whether information systems have been operated in good faith.

This shows how important it can be (1) to reach a reasonable data

preservation agreement and (2) to carefully monitor compliance with

the agreement.

(17)

Document Steps Taken to Comply with ED

Obligations

It is important to memorialize all efforts made to locate, collect, and preserve ESI, including, but not limited to, the following:

• Efforts to identify locations in which ESI is stored, including communications with technical staff and any others who may have knowledge of the location of relevant ESI;

• Steps taken to prevent the destruction of relevant ESI, including copying files or otherwise removing them from the routine destruction process;

• Steps taken to locate, preserve, and produce ESI from reasonably accessible locations;

• Assessments of the costs and other burdens associated with retrieving, preserving, and producing ESI stored in locations that are not reasonably accessible; and

(18)

Data Preservation Protocols

1. The “Litigation Hold” Notice 2. Assembling a Discovery Team 3. Developing a Discovery Plan

4. Identifying and Interviewing “Key Persons”

(19)

The “Litigation Hold” Notice

• A “litigation hold” notice should be sent to all persons who may have possession, custody, or control of relevant ESI.

• Typical recipients include anyone with knowledge of the underlying facts who may have sent or received ESI relating to relevant issues, their support staff, records custodians, and technical staff that has responsibility over such material.

• The notice should provide a clear description of the types of relevant information in question and instructions regarding how to preserve it.

• It is often advisable to require notice recipients to return a certification that provides that they have taken the required steps.

(20)
(21)
(22)
(23)
(24)
(25)

Assembling a Discovery Team

• Depending on the size of the matter, it may be advisable to assemble an electronic discovery team.

• Such teams typically include, but are not limited to, outside counsel, in-house counsel, IT personnel, vendors, data custodians, representatives of the responding party’s subsidiaries, parent companies, and affiliates to the extent they may have potentially responsive ESI.

• Each member should have clearly delineated duties.

(26)
(27)
(28)

Developing a Discovery Plan

• An ED plan should be developed as soon as possible.

• The ED plan should describe steps to be taken, assign responsibilities, and set deadlines for various tasks, including:

¾ Sending “litigation hold” notices;

¾ Collecting “litigation hold” certifications; ¾ Preparing for the Rule 26(f) conference;

¾ Identifying and interviewing key persons, including people with knowledge of underlying facts, record custodians, and IT personnel;

¾ Identifying where relevant electronically stored information is located; ¾ Compiling a key words and phrases search list;

(29)
(30)

Identifying and Interviewing “Key Persons”

• A “Key Person” is a person who has primary possession, custody, or control of potentially relevant ESI. Matters that should be discussed with Key Persons include, but are not limited to:

For Non-Technical Personnel:

(1) The need to preserve all electronically stored information that may be relevant to the matter;

(2) The person’s practices with respect to storing and deleting electronic data;

(3) Locations where any relevant electronic data may be stored;

(4) The identity of other key persons who may have possession, custody, or control of relevant material;

(5) Issues relevant to compiling a key words and phrases list; and

(31)

Identifying and Interviewing “Key Persons” (Cont’d.)

For Technical Personnel:

(1) The systems on which relevant ESI may be stored;

(2) The protocols in place, if any, for the destruction of ESI;

(3) The technical requirements for placing relevant information on litigation hold;

(4) The capacity to search systems for relevant information; and

(32)
(33)

Identifying and Preserving ESI

• Procedures for identifying and preserving ESI should be developed as soon as possible in consultation with Key Persons, technical staff, and outside vendors.

• Steps typically involved in data preservation include:

¾ Copying files on computers and other devices in control of Key Persons;

¾ Performing key word searches of servers, main frames, and other shared storage devices that may contain relevant ESI;

(34)
(35)
(36)

References

Related documents

preservation,  collection  and  analysis  of  electronically  stored  information,  even   though  the  consequences  of  failing  to  preserve  ESI  can  be  broader

obligation to preserve, collect, review or produce electronically stored information.. The party in default may avoid sanctions if it demonstrates the failure was not intentional

Under revised FRCP 34, absent a court order, party agreement, or a request for a specific form of production, a party may produce the electronically stored information in the form

However, HSPF’s ability to model P losses in drained fields is limited because it does not model drainage flow and P loss directly nor does it simulate leaching of particulate

The main target of the thesis is crowned with a complete overview of the project European Capitals of Culture and it spreads information about Pilsen as a European

Prior to initiation of the tendering procedure for the supply contract, technical specification of the necessary equipment will be prepared through IPA 2011 project “Strengthening

Purpose: The purpose of this study was to evaluate the prevalence and experience of clinical consequences of untreated dental caries in primary dentition in 5 and 7 year-old