California Electronic Discovery Rules. William W. Belt, Jr.

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1 California Electronic Discovery Rules William W. Belt, Jr. July 16, 2009

2 Today s speaker and some notes... Bill Belt Welcome. With the high number of attendees, please note all lines have been muted for the event. Q&A can be posted at the right of your screen, but any questions (time permitting) will be addressed at the end of the event. If using Q&A please send to both the host and the presenter. You can send direct questions (including request for copy of slides) to with California E- Discovery Rules Webinar in the subject for reply after the event. 2

3 California MCLE & Virginia Credit Prior to the event, the appropriate documents were distributed for CLE, which has been applied for in Virginia. On approval, the Virginia course number will be distributed. For California attendees, please sign the document with the attendance roster, the survey and scan/ the form to or fax it to

4 Why This Matters June 29, 2009 Adoption of Rules Explicitly Permitting Discovery of ESI Modeled on Federal Rules Not all the Federal rules were adopted Existing California case law and statutory background very different than Federal courts 4

5 What made it into the rules ESI Form of Production Inaccessibility Objection Privilege Process Safe Harbor Language Third Party Subpoenas 5

6 What did not Pre-Trial Conferences (Rules 16 and 26) Evidence Rules (FRE 502 The other electronic discovery rules ) Inadvertent Production Rules Clawbacks Subject Matter Waiver 6

7 What we will cover ESI Basics Defining ESI Objecting to Inaccessible ESI and Motions Practice Production Format Privilege Sanctions / Safe Harbor / Preservation Third Party Subpoenas 7

8 ESI Basics 8

9 Why the Rules Changed Evidence is Electronic 95% of evidence is electronic Most litigants documents never get printed Federal Rules already address ESI Many states already address ESI ESI is persistent 9

10 ESI is Qualitatively Different Informal partial substitute for meetings & telephone. Can contain off-hand comments, halfjokes, and other statements lacking reflection Dynamic changes/deletes, often automatically retention policies on Inbox: auto-delete after 90 days VM auto-delete Browser history Backup tapes routinely recycled 10

11 Stored in Many Places Databases Document management and imaging systems E.g. Documentum (in pharmas.) E.g. IBM s FileNet (imaged contracts or human services case management system) Some tendency for construction contractors to image their materials on large projects E.g. Microsoft SharePoint Browser history, cookies, cache Employment cases (allegedly hostile work environment) VM Sometimes in (.wav files, unified messaging ) Instant messaging Video (YouTube) Social networking sites 11

12 ESI is Voluminous Kilobytes a letter; s, e-docs Megabytes a paperback; with pdf attachments Gigabytes a pickup truck of paperbacks; stores like pst s, edb s, ost s and nsf s Terabytes a library floor; servers and backup tapes 12

13 13

14 Discovery is Different Paper from 20 Employees ESI from 20 Employees Paper from each individual: average about 2 boxes per witness (about 100,000 pages) Paper from each department: average about 10 boxes X 5 departments (about 125,000 pages) Paper from Cold Storage 75 boxes (about 175,000 pages) Total 400,000 pages 2 gigs of s and e-docs from each custodian (1-2 million pages) Data from servers (databases, shared drives)(1 million pages) Data from back-up tapes (2 million pages) Total 5 million pages 14

15 ESI Buzzwords Processing De-Duping and Near Duping De-Nisting and file type filtering Hashing Tiff ing OCR ing Date Filtering Keyword or Concept Searching Clustering 15

16 ESI Resources 16

17 17

18 Defining ESI 18

19 Old Definition "Document" - a writing as defined in Section 250 of the Evidence Code, which states: "Writing" - any form of communication, and any record thereby created, regardless of the manner in which the record has been stored. 19

20 New ESI Definition "Electronically stored information" means information that is stored in an electronic medium (e) 20

21 Electronic Defined "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities (d) 21

22 FRCP 34 Comment: information that is stored in a medium from which it can be retrieved and examined. 22

23 How Expansive? RAM case Existing optical technology New Technologies Social Networking 23

24 Demanding ESI 24

25 Demanding ESI Section (e) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made. 25

26 Production Format 26

27 In The Demand - Section (2) A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced. 27

28 In the Response (c) If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information. 28

29 Standard Section (d) (d) Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable. 29

30 Legal Standard for Productions Reasonably useable is case specific Tiff s only? Tiff s and Text? Tiff s, Text and some Metadata? Tiff s, Text, some Metadata, and some Natives? Load Files with all of the above? Hosted? s in reconsitituted PST s or.msg s? 30

31 Native Production Challenges Easy to alter Difficult to bates and confidentiality stamp Difficult to redact Difficult to implement authentication procedures May require special software to read 31

32 Inaccessible 32

33 Inaccessibility Objection Section (d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information 33

34 Objection followed by Motion to Compel Section Producing Party objects within 30 days Section Requesting party must then move to compel within 45 days Must show specific facts showing good cause Must include meet and confer declaration Producing Party still has burden to show inaccessibility 34

35 Motion for Protective Order Section Producing Party must file promptly Producing Party must file meet and confer declaration Producing Party shoulders burden of proof that ESI is inaccessible Court may nonetheless order production or limited production 35

36 Cost Shifting Section (f) On ordering production, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery. 36

37 Protection under Existing Rules Section (a) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. 37

38 Cost Shifting under Existing Rules Old Sections (e) and (g) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form. 38

39 39

40 Cost Shifting Cases Toshiba American Elec. Components v. Superior Court (Lexar Media), 124 Cal. App. 4 th 762 (2004) (Costs shifted to restore backup tapes under Section ) Zubulake (Basis for FRCP 7-factor test) (1) request is specifically tailored; (2) availability from other sources; (3) total cost of production vs. amount in controversy; (4) the total cost of production vs. parties resources (5) ability and incentive of each party to control costs (6) the importance of the issue at stake in the litigation and; (7) the relative benefits to the parties of obtaining the information. 40

41 Privilege 41

42 Evidence Code 912 (a) Except as otherwise provided in this section, the right of any person to claim a privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. 42

43 CA Waiver Rule O'Mary v. Mitsubishi Electronics America, Inc., 59 Cal.App.4th 563, 577 (1997). "Plaintiff invites us to adopt a 'gotcha' theory of waiver, in which an underling's slip-up in a document production becomes the equivalent of actual consent. We decline." (Emphasis added.). 43

44 CA Waiver Rule Multi-factor test: 1. Intent of holder 2. Procedures to prevent inadvertent production 3. Promptness of notice State Compensation Ins. Fund v. Telanoff, 70 Cal. App. 4 th 644 (Cal. Ct. App. 1999) 44

45 The New Rule is Procedural Section Party making privilege claim notifies opponent Receiving party sequesters and returns; or sequesters and presents to court Parties are precluded from use pending resolution Receiving party must take reasonable steps to retrieve what it disclosed 45

46 Unaddressed Protections Clawback agreement: stip that production doesn t mean privilege waiver; and if producing party identifies documents inadvertently produced, responding party should return them. Quick peek : stip that receiving party gets to look at documents before privilege review and production, and to designate documents believed responsive. Problems: Can t un-ring this bell Third parties (e.g. in related cases) will be able to use material, despite clawback Doesn t modify underlying privilege law of how long producing party has to realize error, how wide waiver is. Ethical duty to preserve client secret 46

47 Safe Harbor 47

48 The Rule - Section (d) Absent exceptional circumstances no sanctions for ESI lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. This subdivision shall not be construed to alter any obligation to preserve discoverable information. 48

49 Sanctions Sanctions can be severe; e.g. adverse inference jury instruction; i.e. that the jury may infer that the lost ESI would have been unfavorable to the sanctioned party. (Zubulake) Sanctions can be on counsel: failure to oversee client, who (even as an apparent power user) did not realize there were parts of the file server other than his network share. (Phoenix Four v. Strategic Resources Corp., 2006 U.S. Dist. Lexis (SDNY 2006)) 49

50 Sanctions absent exceptional circumstances unclear; extreme prejudice? sanctions under these rules court could still order additional depositions, other discovery to make up for lost ESI; not sanctions 50

51 Guidance from FRCP Committee Note Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources. Committee Note on Rule 37(f). FRCP Factors Steps taken to implement litigation hold; accessibility of ESI; whether party should have known of loss; and whether unavailable from any other source. 51

52 Preservation Preservation : duty to preserve relevant evidence arises when a party should have known that the evidence may be relevant to future litigation. Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 435 (2d Cir. 2001). Defendant has notice of foreseeable litigation at time of complaint and sometimes earlier Plaintiff foresees litigation well before service of complaint Preservation ( litigation hold ) notice To whom (besides IT)? Who are custodians? Preserve what? Stop overwriting backup tapes? Any particularly ephemeral ESI? VM?? Employee deleting /files of work computer? 52

53 Third Party Subpoenas 53

54 Protection for Third Parties Duty to limit burden placed on subpoenaed parties Cost Shifting Provision (g) Cases do not support independent tort for spoliation by third parties. 54

55 Resources The Sedona Conference working papers; see BNA s Electronic Discovery Practice Under the Federal Rules Michael Arkfeld, Electronic Discovery and Evidence eryroadmap.jsp 55

56 Conclusion Key to Electronic Discovery will continue to be: Reasonableness Standard Balancing test: Cost benefit Analysis Case specific adjudication waiver cost shifting Need to be Prepared 56

57 Usage This webinar slide show provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this show. This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation, and the recipient. Copyright 2009 LeClairRyan, A Professional Corporation. All rights reserved. 57

58 Thank You 58

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