4/23/2014. E-Discovery. What is ESI? Discovery. Electronically Stored Information. The downside. Discovery generally. E-Discovery

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1 E-Discovery Emily Keimig Lori Philips What is ESI? Electronically Stored Information The downside Discovery Discovery generally E-Discovery 1

2 Electronic Discovery Reference Model QUESTIONS? Discovery Overview of places to look for discoverable information Networked devices Personal computers at work and home Removable media Disaster recovery backup media Third-party providers Websites Social media Smart phones Where to Look Blurred lines between personal and work life Text messages Instant messages Tablets Facebook pages 2

3 Where to Look BYOD v. COPE BYOD (bring-your-own-device) COPE (corporate-owned, personally-enabled) Litigation Employer s Right to Monitor and Access Information Where to Look Employer s rights to monitor and access information Electronic Communications Privacy Act of 1986 (part of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C et seq.) Business exception Consent to monitoring Employer-owned systems Limitations on employer monitoring Employer-owned phones Employer-owned computers Employee-owned devices Type Requirement Impact Management Identification of unsearched inaccessible sources (R.26(b)(2)(B)) Knowledge of sources; automatic deletion must be capable of suspension Records Retention Backup Tapes Litigation Holds Compliance Production in reasonably usable form (or as maintained) (R. 34(b)) Must sequester if triggered by special needs (Comm. Note, R.37(f)) Discussion of preservation steps undertaken (R.26(f)) Passim (including Rule 37(f) requirements of good faith) Print and File risks loss of metadata but acceptable if ordinary course of business May require more routine knowledge of file contents Implementation decisions must be discussed and may be protected if in good faith Corporate commitment to meeting litigation obligations 3

4 Production costs Zubulake, 217 F.R.D. 309, (S.D.N.Y. 2003) Accessible documents are readily available in a usable format and reasonably indexed Examples of inaccessible documents Documents in storage in a difficult-to-reach place Documents converted to microfiche and not easily readable Documents kept haphazardly, with no indexing system, in quantities that make page-by-page searches impracticable Seven factor test to determine whether cost shifting is appropriate: 1. The extent to which the request is specifically tailored to discover relevant information 2. The availability of such information from other sources 3. The total cost of production, compared to the amount in controversy 4. The total cost of production, compared to the resources available to each party 5. The relative ability of each party to control costs and its incentive to do so 6. The importance of the issues at stake in the litigation 7. The relative benefits to the parties of obtaining the information 4

5 So you know where to look but how do you separate the relevant information from the worthless? Look at everything approach The other extreme by producing everything and relying on claw-back provisions to insulate them Technology-assisted document review Technology-assisted review can and does yield more accurate results than exhaustive manual review, with much less effort Keyword searches Statistical sampling Predictive coding Aversion to Change Myth: Predictive coding is prohibitively expensive Myth: There s no precedent for predictive coding Myth: It s too hard to explain Myth: It s too risky What Not to Produce - Privilege What is privilege? Corporate attorney-client privilege Control group test Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677 (1981) Abrogated control test Subject matter test Need to know those immediately concerned Take away to preserve the privilege, limit communications to those who really need to be involved In-house counsel Duality Privilege 5

6 Spoliation and Consequences Duty to preserve Self-destructing and Ephemeral Messages Zubulake v. UBS Warburg LLC (Zubulake IV ), 220 F.R.D. 212 (S.D.N.Y. 2003) Zubulake v. UBS Warburg (Zubulake V ), 229 F.R.D. 422 (S.D.N.Y. 2004) FRCP 37(e) amendments Curative measures; sanctions Factors to be considered in assessing a party s conduct Managing ESI Policies and procedures emerge through accretion with different departments or functions taking lead at different times for different documenting efforts, sometimes in response to a perceived urgent need Result is a hodgepodge of policies and procedures, which rarely present to the workforce as a coherent whole Information governance 6