How To Write A Court Decision In A Case Involving A Power Of Attorney In The United States

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1 Key Issues in Electronic Discovery Richard A. Schneider Dan Hall Willoughby, Jr. Matthew S. Harman Tuesday, July 19, :30 1:30 p.m. EDT If you have not downloaded the program materials, please do so now at learn/handout To connect to the audio part of the program, please call: A customer service representative will connect you to the seminar. For technical assistance at any time during the presentation, please call:

2 Speaker Biographies Doc Schneider is a litigation partner in the Atlanta office of King & Spalding. He joined the firm in 1981 and became a partner in Mr. Schneider also headed King & Spalding s General Litigation team from 1993 to He specializes in class action litigation and internal corporate investigations. Mr. Schneider has taken a lead role in internal corporate investigation, including investigating and reporting on the events leading up to the Exxon Valdez oil spill in 1989 and the breast implant controversy in the 1990 s. Richard A. Schneider dschneider@kslaw.com Mr. Schneider is a frequent lecturer on class action, discovery and evidence issues. He has served as an Adjunct in at Emory University s School of Law. Mr. Schneider founded an annual seminar in Georgia surveying the United States Supreme Court s key decisions each year. He has served as Eleventh Circuit Membership Chair and Georgia Membership Chair for the United States Supreme Court Historical Society. Mr. Schneider was recently named as a Georgia Super Lawyer by Atlanta Magazine. Mr. Schneider attended the United States Naval Academy Preparatory School and the United States Naval Academy from 1974 to He graduated, magna cum laude, from Auburn University with a B.A. in English in In 1981, Mr. Schneider graduated, summa cum laude, from Mercer University Walter F. George School of Law. Mr. Schneider is a former Chairperson of the Board of Directors of UNICEF-Atlanta, and currently is a member of the Board of Directors of the Mercer University Press. He served for six year as a member of the Board of Visitors of Mercer University Walter F. George School of Law. Mr. Schneider is a member of the Board of Directors of CADEF: Childhood Autism Foundation, as well as a member of the Board of Directors of Theatrical Outfit. Speaker Biographies Dan Willoughby joined the firm in 1986 and was elected partner in He is part of the litigation practice in the Atlanta office. His practice focuses on commercial litigation. He is admitted to practice in Georgia; U.S. District Court, Northern District of Georgia; U.S. Court of Appeals, Eleventh Circuit; Georgia Court of Appeals; and Georgia Supreme Court. He is a member of the State Bar of Georgia, Atlanta Bar Association and American Bar Association. Mr. Willoughby received his J.D., magna cum laude, in 1986 from the University of Georgia and earned his B.A. from Duke University in Dan H. Willoughby, Jr. dwilloughby@kslaw.com

3 Speaker Biographies Matt Harman is an associate with King & Spalding s Tort Litigation Practice, where he represents foreign and domestic companies in high exposure toxic tort and product liability cases. Mr. Harman s recent experience includes: Matt S. Harman mharman@kslaw.com Part of trial team in Nichols v. General Motors, selected by the National Law Journal as one of the Top Ten Defense Verdicts of Defense of pharmaceutical manufacturer in nationwide litigation alleging link between company s product and brain damage. Defense of respiratory protection equipment manufacturer in various asbestos and silica lawsuits brought in Mississippi, West Virginia, Texas and Illinois. Defense of premises owner in nationwide asbestos suits. Defense of major paper manufacturer in wrongful death claims. Defense of claims for toxic mold. Particular expertise in emerging issues of electronic discovery. Presented Punitive Damages in Light of State Farm v. Campbell at the October 2003 Mealey s Conference on Silica Litigation. Mr. Harman is the Co-Chair of the Website Committee of the ABA's Litigation Section, and he serves on the Professionalism Committee of the Georgia State Bar. He is a member of the Defense Research Institute, the ABA Litigation and TIPS Product Liability Sections, the Lamar Inn of Court and the Georgia Product Liability Committee. Mr. Harman joined King & Spalding in 1999 after receiving his law degree from Harvard Law School. He graduated, summa cum laude, and Phi Beta Kappa with a B.S. in mathematics from the University of Kentucky. Key Issues in Electronic Discovery Richard A. Schneider Dan Hall Willoughby, Jr. Matthew S. Harman Tuesday, July 19, :30 1:30 p.m. EDT 1

4 A Cautionary Tale 2 Importance Communications in the last 10 years are predominantly electronic. Companies and individuals have a duty to preserve relevant communications. Law is adapting to meet the reality of electronic communication. Volume of E-materials are enormous and require sound technology management. Exposure is high and the risks and obligations must be managed. 3

5 Current Legal Landscape Topics Proposed Amendments to Federal Rules The Mechanics of Collecting and Producing Electronically Stored Information 4 The Legal Landscape 5

6 Many Legal Issues Preservation What When How Production What How Cost Allocation Who How 6 How we got here National Union Electric Corp. v. Matsushita Electronic Industrial Co., 494 F. Supp (E.D. Pa. 1980). Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993). Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1997). Playboy Enterprises, Inc. v. Welles, 60 F. Supp (S.D. Cal. 1999). McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C., 2001). Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y., 2002). 7

7 Where we are Zubulake 8 Zubulake v. UBS Warburg LLC 217 F.R.D. 309 (S.D.N.Y., 2003) ( Zubulake I ) 2003 U.S. Dist. LEXIS 7940 (S.D.N.Y., 2003) ( Zubulake II ) 216 F.R.D. 280 (S.D.N.Y., 2003) ( Zubulake III ) 220 F.R.D. 212 (S.D.N.Y., 2003) ( Zubulake IV ) 2004 U.S. Dist. LEXIS (S.D.N.Y., 2004) ( Zubulake V ) 2005 U.S. Dist. LEXIS 4085 (S.D.N.Y. Mar. 16, 2005) ( Zubulake VI ) 9

8 Overview New test for COST allocation Zubulake I APPLICATION of new test Zubulake III Duties of PARTY Zubulake IV Duties of COUNSEL Zubulake V 10 Cost Allocation Rowe Entertainment v. Zubulake I and III Eight v. Seven Key: How important is the sought-after evidence in comparison to the cost of production? 11

9 Cases citing Zubulake I Ferguson v. Lion Holding, Inc., 2005 U.S. Dist. LEXIS 9789 (D.N.Y., 2005) Xpedior Credit Trust v. Credit Suisse First Boston (USA), Inc., 309 F. Supp. 2d 459, 461 (D.N.Y., 2003) Wiginton v. CB Richard Ellis, Inc., 2004 U.S. Dist. LEXIS (D. Ill., 2004) 12 Cases citing Zubulake III Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 602 (D. Wis., 2004) Thompson v. United States HUD, 219 F.R.D. 93, 98 (D. Md., 2003) Brassco, Inc. v. Klipo, 2004 U.S. Dist. LEXIS (D.N.Y., 2004) OpenTV v. Liberate Techs., 219 F.R.D. 474 (D. Cal., 2003) 13

10 Cases citing Rowe Entertainment Hagemeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 602 (D. Wis., 2004). Thompson v. United States HUD, 219 F.R.D. 93, 98 (D. Md., 2003). Medtronic Sofamor Danek, Inc. v. Michelson, 2003 U.S. Dist. LEXIS (D. Tenn., 2003). Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 2002 U.S. Dist. LEXIS 3196 (D. La., 2002). 14 Preservation Duties of PARTY NOT every shred of paper, and backup tape BUT consider information: Useful to adversary, Relevant, Likely to be requested, and/or Reasonably calculated 15

11 Preservation Duties of PARTY Identify Key Players Suspend document destruction Issue Litigation Hold Continue to recycle backup tapes? MAYBE Depends on tape use and determination of Key Player information Zubulake IV 16 Cases citing Zubulake IV E*Trade Secs. LLC v. Deutsche Bank AG, 2005 U.S. Dist. LEXIS 3021 (D. Minn., 2005) Hamre v. Mizra, 2005 U.S. Dist. LEXIS 8460 (D.N.Y., 2005) Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595 (D.N.J., 2004) Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (D.N.Y., 2004) 17

12 Preservation Duties of COUNSEL Issue Litigation Hold Communicate with Key Players, with periodic reminders Instruct employees to produce electronic copies of relevant active files Ensure retained data is identified and stored in a safe place Zubulake V 18 Cases citing Zubulake V Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 600 (D.N.J., 2004) United States v. Philip Morris USA Inc., 2005 U.S. Dist. LEXIS 5283 (D.D.C., 2005) 19

13 Consequences: Sanctions Monetary Penalties Witness Exclusion Jury Instructions Default Criminal Penalties 20 Resources

14 Proposed Amendments to the Federal Rules of Civil Procedure 22 Affected Areas of Discovery Rules 16 and 26(f) - Preliminary discovery conference Rule 26(a) - Initial disclosures Rule 26(b)(2) - Limits on production Rule 26(b)(5) - Privilege claims on produced information Rule 33 - Interrogatory responses Rule 34(b) - Scope and form of production Rule 37(f) - Sanctions limitations 23

15 Rulemaking Process: August 2004: Proposals released February 2005: Public comment period closes, public hearings conclude April 2005: Advisory Committee recommends revised drafts to Standing Committee June 2005: Approval by Standing Committee September 2005: Judicial Conference review May 2006: Supreme Court review December 1, 2006: New rules could take effect 24 Early Attention to E-Discovery: E Rule 16 (Pretrial Conferences) Intended to address E-Discovery issues at early stages of litigation References electronically stored information Scheduling order may include provisions for disclosure and/or discovery of electronically stored information Scheduling order may include include parties agreement regarding assertion of privilege or work product claim after production 25

16 Early Attention to E-Discovery: E Rule 26(a) (Required Disclosures) References electronically stored information as part of 26(a)(1)(B) material that party may use to support its claims or defenses. 26 Early Attention to E-Discovery: E Rule 26(f) (Conference of Parties) Parties initial planning conference must include discussion of Form of production of electronically stored information Privilege and work product issues, including post-production claims Preservation of discoverable material Notes: Preservation orders should not be routinely entered, but when entered should be narrowly tailored 27

17 Two-Tiered Tiered Discovery: Rule 26(b)(2) (Discovery Limits) 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. Identification of not reasonably accessible materials merely requires identification by category or type, and does not require an actual review of the inaccessible electronically stored information If requesting party files motion to compel, and producing party shows undue burden or cost, court may only require production for good cause shown, and court may also specify conditions for that discovery, including cost reallocation 28 Two-Tiered Tiered Discovery: Rule 26(b)(2) (Discovery Limits) Court shall limit discovery if: Discovery sought is unreasonably duplicative, or is obtainable from more convenient source Party has had ample opportunity to obtain the information through other discovery The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the parties resources, the importance of the issues in the case, and the significance of the discovery in resolving the issues 29

18 Privilege Protection: Rule 26(b)(5)(Claims of Privilege) Adds procedure for post-production privilege and/or work product claim ( clawback ) If party discovers it has produced privileged materials or work product, it must notify receiving party and set forth in writing the basis for the privilege claim If receiving party has disclosed the privileged information to third party, receiving party must take reasonable steps to retrieve the information Receiving party must return, sequester or destroy all copies, and cannot use or disseminate the information until the privilege claim is resolved 30 Interrogatories and RFPs: Rule 33(d) (Business Records) Includes electronically stored information among business records that may be produced in response to interrogatory Producing party must ensure that requesting party can ascertain the information as readily as it can, and the producing party may be required to provide technical support to facilitate the review 31

19 Interrogatories and RFPs: Rule 34 (Production of Documents) Requesting party may specify the form of production If responding party objects to form specified, it must state its grounds and an alternative form If no form specified, responding party must state form it plans to use; but electronically stored information must be produced in the form in which it is ordinarily maintained or in a reasonably usable form 32 Safe Harbor from Sanctions: Rule 37(f) (Sanctions for Electronically Stored Information) Recognizes that ordinary business operations may result in loss of information without culpable conduct Absent exceptional circumstances, court may not sanction a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. Good faith may require party to impose a litigation hold, comply with preservation agreements, and comply with court orders related to preservation 33

20 Rule 45 (Subpoena) Includes electronically stored information Parallels Rules 33 and 34 with respect to form of production, two-tiered scope ( not reasonably accessible ) and procedure for post-production privilege claims 34 Proposed Rules and Advisory Committee Notes 35

21 The Mechanics of Electronic Production 36 37

22 The Six Stages of Electronic Production 1. Identification 2. Preservation 3. Collection 4. Processing 5. Review 6. Production 38 Stage One Identification Key personnel Reasonably accessible systems/data Begin with: Interviews of individuals Examination of client s electronic systems Understanding of retention policy Involve knowledgeable consultants (internal or external) 39

23 Stage One Identification Sources of Electronic Data Messaging Systems IM Document Management Systems Laptops and PDA s Internal websites Group network shares 40 Stage One Identification Challenges Former employees Legacy systems Private folders Multiple locations Administrative assistants for principals Mobile storage devices (e.g., personal hard drives) Emerging technologies (e.g., voic transcription) 41

24 Stage Two Preservation Halt any known process which may be deleting/overwriting identified materials. Send written legal hold notice with express reference to electronic documents. Confirm that this is in fact happening with operational level personnel, e.g., tape library operator. Routinely reconfirm. 42 Stage Three Collection Aggregate identified data Retrieve: Forensic capture Use of designated mailbox Deliver: Export of to tape/disk Transfer via hard drive, flash drive, DVD, CD, , or FTP 43

25 Stage Three Collection Challenges Lack of a structured collection plan. Delegation of collection to personnel with inadequate technical expertise. Collection via personal is discouraged for all but very specific requests. 44 Stage Four Processing Automate extraction of all field data and body text from identified files. Placement of elements of files, such as TO, FROM, SENT DATE and the MESSAGE BODY, into a searchable database. Allows for faster and more specific retrieval. 45

26 Stage Four Processing Deduplication Removal of duplicate files to accelerate the review and eliminate inconsistencies. Identification of duplicates: Non- files: hash comparison files: criteria varies, commonly matching TO, FROM, CC, BCC, DATE/TIME_SENT, SUBJECT and number of attachments. Entire population vs. individual custodian 46 Stage Four Processing Challenges Password protected files Corrupted files Proprietary files Files with external data sources (commonly Excel spreadsheets) Related documents (e.g., mail message and attachments) 47

27 Stage Five Review Tagging For: Responsiveness Privilege Confidentiality Online vs. Paper: An Important Decision Accuracy/Speed/Cost/Volume/Critical Mass Depends on document set 48 Stage Five Review Time-saving options Filter by: Custodian Date Key words Identify presumptively privileged items for immediate screening with name or term search. Concept searching for significant documents. 49

28 Stage Five Review Challenges Volume Related documents (e.g., strings) Attachments Multiple databases Proper multi-tier review for privileged items Viewing Excel formulas (not available with plain extracted text or visible on a TIFF graphic) 50 Stage Six Production Common forms of production Paper Native Files: Word documents, Excel files, etc. TIFF files: Images = Electronic Snapshot TIFF files + Data: Images with Database 51

29 Stage Six Production Actual handoff of documents Paper: Primitive, but not always a bad idea. CD: Common but increasingly obsolete due to size limitations. DVD: 12x the data of a CD. Flash Drive: Up to 8 GB or 64 boxes of TIFF paper files. Hard Drive: Up to 300 GB or 2,400 boxes of TIFF paper files. 52 Stage Six Production General Considerations Cost Manageability Client and co-counsel collaboration Reciprocity Integrity of documents 53

30 Stage Six Production Challenges Redaction Renumbering Indices Metadata Tracking Production History 54 55

31 Summary 56 Educate Yourself Educate Client Take Away Points Be Proactive Discuss with client at outset of matter and identify existing forms of electronic data Be Responsive Implement litigation hold and determine effect on retention of electronically stored information Address issues with opposing counsel at the planning conference to streamline discovery procedures Do not go it alone 57