By Faith M. Heikkila

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1 Shedding Light on the New E-Discovery Rules and the Role of IT April 20, 2007 By Faith M. Heikkila Ph.D. Candidate in Information Systems Regional Security Services Manager - Great Lakes April GR ISSA Meeting 1

2 Disclaimer Previously worked as a complex litigation paralegal for 18 years: Varnum, Riddering, Schmidt & Howlett Miller, Canfield, Paddock & Stone I am not a lawyer and I do not even play one on TV. This presentation is: merely my opinion does not constitute legal advice Please contact your attorney for legal advice relevant to your e-discovery e needs. April GR ISSA Meeting 2

3 Introduction 1. What are the new Federal Rules of Civil Procedure e-discovery e rules? 2. What are the steps to prepare for litigation holds and production of ESI? 3. What is IT s s role in e-discovery e cases? 4. How does IT prepare for the Meet & Confer meeting? 5. How have the local courts ruled? 6. Useful E-Discovery E Sites April GR ISSA Meeting 3

4 What Are the New Rules? New rules for electronic discovery adopted as part of the Federal Rules of Civil Procedure (FRCP) went into effect on: December 1, 2006 The purpose of these rules is to streamline e-discovery e requests. April GR ISSA Meeting 4

5 What Are the New Rules? The new rules stem from recent opinions: Laura Zubulake s gender discrimination and retaliation case against her former bank employer (Zubulake v. UBS Warburg, LLC). In one of five decisions: The court shifted the cost of discovery to Zubulake for retrieval of the data from backup tapes (ZUBULAKE I) The judge later opined that: 1. the bank had failed to preserve electronic evidence 2. instructed the jury to assume the lost messages would be unfavorable to the bank 3. the cost for this production was charged back to the bank (ZUBULAKE V). In April 2005, the jury found for Zubulake, and she was awarded $29.3 million in damages primarily because the bank had failed to adequately preserve evidence. April GR ISSA Meeting 5

6 E-Discovery Sanctions Coleman v. Morgan Stanley (2005 WL ) caught the attention of law firms. In this case, the jury awarded $1.5 billion to the plaintiff. Could not pass on to any indemnifier or insurance. OUCH! Based on the mishandling of backup tapes by Morgan Stanley and their counsel. The court held that Morgan Stanley had been stonewalling and attempting to hide their , thereby violating numerous discovery orders (March 1, 2005 Order). This decision was reversed on March 21, 2007 on other grounds. April GR ISSA Meeting 6

7 What Are the New Rules? In an attempt to minimize the number of motions to compel discovery the federal courts have mandated discussions within first 100 days of case prior to issuance of its scheduling order parties must agree on: how document production will proceed what form the responses will take Parties to a case now in anticipation of any discovery requests have an obligation to find out where data resides on their own systems Must be able to discuss their retention practices April GR ISSA Meeting 7

8 What Are the New Rules? The new e-discovery e rule changes are included in FRCP 16, 26, 33, 34, 37, and 45. The Amendments to FRCP 33, 34, and 45, provision the addition of Electronically Stored Information (ESI) to the rule. The more extensive Civil Rule changes pertain to FRCP 16(b), 26(b), 26(f), and 37(f). April GR ISSA Meeting 8

9 Rule 16(b) Amendments Rule 16 (b)(5): The scheduling order may also include provisions for disclosure or discovery of electronically stored information; Rule 16(b)(6): The scheduling order may also include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production; In the past, paper productions during the discovery phase included a privilege review of the documents prior to production. With the abundance of metadata and other versions of the data included in native file formats, data will be produced that is not visible and may include privileged information. April GR ISSA Meeting 9

10 Rule 26(b) Amendments Rule 26(b)(2)(B): 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. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. April GR ISSA Meeting 10

11 Rule 26(b) Amendments Rule 26(b)(5)(B): Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. April GR ISSA Meeting 11

12 Rule 26(b) Amendments The attorneys need to know: the location(s) of their clients responsive ESI what the economic impact of paying for the production of inaccessible documents will be for their client. The court is forcing: a proactive review by determining upfront whether the case merits the expense of retrieving inaccessible ESI. April GR ISSA Meeting 12

13 Rule 26(b) Amendments The anticipated result: a more narrowly defined set of document production requests Clients will have to: decide at the start of a case whether they are willing to pay for the restoration of inaccessible ESI April GR ISSA Meeting 13

14 Rule 26(f) Amendments Rule 26(f):... the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses... Rule 26(f)(3): any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; Rule 26(f)(4): any issues relating to claims of privilege or protection as trial-preparation material, including if the parties agree on a procedure to assert such claims after production whether to ask the court to include their agreement in an order. April GR ISSA Meeting 14

15 Rule 26(f) Amendments The opposing parties must now: meet and confer at least 21 days prior to the Rule 16(b) scheduling hearing outline the ESI production form(s) Pursuant to Rule 34(b)(3), a a party need not produce the same electronically stored information in more than one form. During this meet and confer conference: the parties must also resolve how inadvertent disclosure of privileged information will be handled a much earlier deadline for identifying responsive documents than how discovery was handled in the past must be approached as soon as the dispute arises April GR ISSA Meeting 15

16 Rule 37(f) Amendments Rule 37(f): Electronically Stored Information. 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. April GR ISSA Meeting 16

17 Rule 37(f) Amendments The Advisory Committee on Civil Rules acknowledges that: ESI is dynamic and if separated from its system may be incomprehensible recognizes that computing is dynamic there may be inadvertent rather than intentional modification or deletion of responsive files However, the ESI lost must be based on: good-faith routine practices not due to lack of placing a litigation hold on the responsive ESI collection. April GR ISSA Meeting 17

18 Rule 37(f) Amendments Still a statutory duty to preserve evidence Rule 37(f) provides a safe harbor against spoliation In the event that data is deleted or written over in accordance with a routine business practice such as: archiving/deleting messages after a set amount of days the overwriting of previously deleted files. April GR ISSA Meeting 18

19 Hon. Shira A. Scheindlin United States District Judge, Southern District of New York, New York, NY Author of the highly- regarded Zubulake decisions regarding cost- shifting in e-discoverye Keynote speaker at the ABA TechShow in March 2007 Validated sampling evidence as a viable option to determine whether relevant evidence exists Rule 26(f) Meet & Confer most important! Must begin discovery from accessible sources before rushing into inaccessible sources However, identify the inaccessible sources not being produced Rule 37(f) Safe Harbor It is really a very narrow, shallow harbor. April GR ISSA Meeting 19

20 Attorneys Need Your Help The following slide depicts how some attorneys understand computers: April GR ISSA Meeting 20

21 How Lawyers Think Computers Work Per Browning Marean, DLA Piper April GR ISSA Meeting 21

22 Electronic Discovery Reference Model See April GR ISSA Meeting 22

23 Production Process 1. Identification 2. Preservation 3. Harvest Collection Courts have confidence in Boolean keyword test searches Difficult in discovery because of misspelling, zipped files, etc. 4. Population 5. De-Duplication Duplication 6. Review 7. Repopulate with redactions April GR ISSA Meeting 23

24 Preservation & Retention Preservation When an objective decision-maker thinks litigation is deemed to be credible,, a litigation hold must go into effect. VoIP It is discoverable! California lawyer, Browning Marean, had 100 people listening to voic messages Instant Messages Also discoverable RETENTION: If you do not need it for preservation, get rid of it! If you no longer have the hardware or software to access old legacy systems dispose of them! Get all data stored on the servers, not just on local machines. Document management is multi-disciplinary approach human reviews & search engine tools. April GR ISSA Meeting 24

25 Gathering Electronic Data Digital Printers Third Parties who hold information Backup Tapes Home computers (big issue only want responsive data not whole home machine) Items pictured on this slide (not exhaustive!) April GR ISSA Meeting 25

26 Culling & Filtering Filtering significantly reduces costs and review time 1. Hash matching Digital fingerprinting to filter known files Remove MP3 files 2. Extensions & Signature filtering for file types 3. File path filtering for application specific files 4. Entropy testing for encrypted and compressed files 5. Keyword & Concept filtering for privileged documents 6. Date interval and file size April GR ISSA Meeting 26

27 Role of IT Preservation of evidence Develop a core IT E-Discovery E Team similar to an Incident Response Management Team plan for and implement a command and control architecture through an E-Discovery Policy train staff on how to respond to a litigation hold notify data owners take backup tapes out of rotation have attorney call forensic experts (preserve attorney-client and work product doctrine privileges) a forensic image of hard drives data collection Halt deletions or overwriting any ESI responsive to the case Designate an IT point person to implement the litigation hold all forms of ESI notify appropriate IT personnel of the litigation hold supervise whether the litigation hold has occurred April GR ISSA Meeting 27

28 IT E-Discovery E Response Team General Counsel/ Outside Counsel IT E-Discovery Project Manager Declares a Litigation Hold CSO/ISO CIO Forensic Consultants Vendor Support Network Administrators Application Data Owners April GR ISSA Meeting 28

29 Another Example Faith M. Heikkila April GR ISSA Meeting 29

30 Role of IT Meet & Confer Items to Discuss Provide evidence of documented retention policies and practices for all types of ESI: including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. Rule 34(a) E-discovery Policy is advisable Identify active vs. inactive data April GR ISSA Meeting 30

31 Role of IT Meet & Confer Items to Discuss Identify where responsive ESI resides may include hidden data messages AND attachments Temporary files Cache files Log files Swap space Embedded metadata Deleted files Inactive data that is inaccessible Unsupported old legacy systems Backup tapes Deleted data and residual hidden data April GR ISSA Meeting 31

32 Role of IT Meet & Confer Items to Discuss Form(s) in which information will be produced Stored on specific servers Backup tapes DVDs Native format (i.e., Excel) VoIP and Instant Message files Proprietary software files may have to provide IT resources for review of such files Distinguish between inactive and active data April GR ISSA Meeting 32

33 Technological Attributes SOFTWARE MS Outlook and Outlook Express MS Word MS Access MS Excel MS FrontPage MS PowerPoint MS Visio Novell GroupWise Netscape Mail Photoshop Audio software FILE FORMAT.pst,.dbx,.mbx,.idx,.nch.doc.mdb.xls.html,.htm.ppt.vsd.mlm.na2,.smn.jpg,.tif,.bmp,.psd.mpeg,.wav,.asf,.wma,.avi,.midi,.aiff,.au,.aac April GR ISSA Meeting 33

34 Possible /Probable = responsive ESI on Orange Laptop, Desktop Hard Drives, and Servers or Red Servers April GR ISSA Meeting 34

35 Things Lawyers Will Wish They Had Done Before Meet & Confer 1. Identify client s s e system and servers 2. Learn vocabulary of client s s IT personnel 3. Backup procedures and rotations 4. Contacts of IT Staff 5. ERM, retention policies & Acceptable Use Policy 6. Purge policies of client Craig Ball, Lawyer & Technologist Chicago ABA TechShow 3/22/07 April GR ISSA Meeting 35

36 Early Meet and Confer From Browning Marean s March 5, 2007 iconect Presentation April GR ISSA Meeting 36

37 Will the States Adopt Similar Rules? March 2007 Chicago ABA TechShow Prediction from practicing attorneys: in a year or two, the States will use the FRCP new e-discovery e rules % 99% of evidence is in electronic form Smoking gun is usually found on the workstations Set of Guidelines for State Trial Courts Regarding Discovery of ESI August cccjguidelinesfinal.pdf April GR ISSA Meeting 37

38 Local Judges in W.D. of Michigan Decisions Thielen v Buongiorno USA, Inc. Lexis 8998 (W.D. Mich., Feb. 8, 2007) (Mag. Judge Brenneman) Ordered Plaintiff s s computer be produced for inspection by third party expert without parties or attorneys present. Imaged the hard drive to see if Plaintiff had opted-in for a subscription to entertainment content. Allowed Plaintiff s s counsel to review expert s s findings prior to giving to Defendants with ten (10) days to object or request a Protective Order for any findings April GR ISSA Meeting 38

39 Local Judges in W.D. of Michigan Decisions Powers v Thomas M. Cooley Law School, Lexis (W.D. Mich., Sept. 21, 2006) (Mag. Joseph G. Scoville) Denied Motion: Defendant s s Help Desk computerized work system could not be imaged or reviewed Plaintiff was visually impaired and claims her ADA computer malfunctioned during her final examinations. Defendant upgraded from the Track It system to the HelpStar system during the discovery time period. Defendant s s IT Dept. produced paper tickets during the overlapping two month period to the satisfaction of the Court. Plaintiff s s counsel failed to request an order compelling the review of Defendant s s computers in writing Judges are relying on the Civil Rules Advisory Committee Notes in i their decisions April GR ISSA Meeting 39

40 Useful E-Discovery E Sites Applied Discovery Law Library Berkman Center for Internet & Society at Harvard Law School CaseData Dolphin Search - Electronic Evidence Discovery (EDD) Electronic Discovery Reference Model (ERM ) Ken Withers Senior Federal Judicial Education Specialist Kroll Ontrack Team Megee solution/e-discovery/ AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE with Committee Notes National Conference Of Commissioners On Uniform State Laws DRAFT of Proposed State Court Rules vember.htm The Sedona Conference The Sedona Conference Glossary es/tsglossarymay05.pdf The Sedona Guidelines for Managing Information and Records in the Electronic Age (Sept Version) es/tsg9_05.pdf Pivot Group Whitepapers: The New E-Discovery E Rules: Take the Lead in Ensuring Compliance April GR ISSA Meeting 40

41 Contact Information Thank You! Questions? Faith M. Heikkila Regional Security Service Manager Great Lakes PIVOTGROUP look, plan, act,, repeat O: C: E: April GR ISSA Meeting 41

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