Data Preservation Duties and Protocols

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1 Data Preservation Duties and Protocols November 2008 HOU:

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 E. Identify and preserve potentially relevant information 2

3 Discussion Outline (Cont d.) EXHIBITS: A. Litigation Hold Notice B. Discovery Team Contact List C. Discovery Team Activity Sheet D. Electronic Discovery Checklist E. Key Person Information Sheet F. Sample Key Person Interview G. Chain of Custody Log 3

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. 3. Systems become obsolete. 4

5 The Parameters of Electronic Discovery Parties are required to take steps that are reasonable under the circumstances to identify, preserve, and produce electronically stored information ( ESI ). What is reasonable is typically driven by economic and technical factors. 5

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 obligations than one with millions of dollars at stake. 6

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. Cost shifting may be appropriate in some instances. 7

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: Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information, lost as a result of the routine, good-faith operation of an electronic information system. 8

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. The Committee Note description of what constitutes good faith under Rule 37(e) embraces the concept developed in the case law that when a party knows or should know that ESI may be material to an actual or potential legal action there is an affirmative obligation to place it on litigation hold. 9

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. Whether the destroyed material was relevant to a party s claims or defenses. 10

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. The severity of the sanction typically depends on the state of mind involved in the destruction and the relevance of the material in question. 11

12 United Medical Supply Co. v. U.S. 12 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 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 s 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. Explaining why it was not necessary to find bad faith to impose sanctions, the court stated, [I]t makes little sense to talk of the general duty to preserve evidence if, in fact, the breach of that duty carries no real legal ramifications.

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. The court also said that the good faith exception was not available because the defendant had no routine system or consistent policy in place regarding the destruction of ESI. 13

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. Main take-away points: Do not rely on conclusory statements from clients that adequate efforts have been made to search for responsive ESI, especially if the results of the search capture a surprisingly small amount of information. 14

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 Parties are encouraged to reach agreements that outline their obligations regarding the preservation and production of ESI. 15

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. If it turns out that ESI is destroyed during a course of conduct that is authorized under an agreement or court order, then the case against assessing sanctions will be much stronger. 16

17 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 Determinations regarding the likelihood that searches for ESI stored in less accessible locations will yield information that is relevant and not duplicative of discovery already obtained from other sources.

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 5. Identifying and Preserving Potentially Relevant ESI 18

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. If the matter is protracted, it may be advisable to send out follow-up notices reminding the recipients of their continuing obligations to preserve and produce responsive ESI. 19

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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. The team should meet periodically to discuss progress and the results of the meetings should be put in writing. 25

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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: Sending litigation hold notices; Collecting litigation hold certifications; Preparing for the Rule 26(f) conference; Identifying and interviewing key persons, including people with knowledge of underlying facts, record custodians, and IT personnel; Identifying where relevant electronically stored information is located; Compiling a key words and phrases search list; Searching for and preserving potentially relevant material; and Producing responsive material. 28

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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 (6) Whether any relevant electronic data has already been destroyed. 30

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 (5) Time and cost associated with identifying and preserving potentially relevant ESI. 31

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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: Copying files on computers and other devices in control of Key Persons; Performing key word searches of servers, main frames, and other shared storage devices that may contain relevant ESI; Removing responsive material from the routine data destruction process. 33

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