1 ELECTRONICALLY STORED INFORMATION e-docs and Forensics in the New e-discovery Era
2 FRAMEWORK Overview of the Rule Changes Pre-Litigation Planning IT Audit Document Retention Policies Planning Discovery Conducting Discovery Costs Privilege
3 OVERVIEW Changes go into effect December 1, 2006 Rules changes deal with a new category of information: electronically stored information (ESI) ESI is distinct from documents or things Focus is on accessible ESI Attempt to balance need for information versus cost and time of discovery Safe harbor provisions for inadvertent production of privilege
4 HAS ANYTHING REALLY CHANGED? ESI has been the focus of much discovery in previous years Numerous state and federal jurisdictions already have specific rules in place to address e-discovery or have begun to work on such rules BUT, official recognition of both importance of ESI and difficulties in dealing with it
7 RULE 16(b) CASE MANAGEMENT (b).the scheduling order also may include (5) provisions for disclosure or discovery of electronically stored information; (6) any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production; Form 35 also provides specific provisions for addressing ESI
8 RULE 26(a)(1)(B) DISCOVERY IN GENERAL (a) Required Disclosures; Methods to Discover Additional Matter. (1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:. (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
9 RULE 26(b)(2)(B) LIMITATIONS (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:. (2) Limitations.. (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.
10 RULE 26(b)(5)(B) - PRIVILEGE (5) Claims of Privilege or Protection of Trial-Preparation Materials.. (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.
11 RULE 26(f) CASE MANAGEMENT (f) Conference of Parties; Planning for Discovery. [T] he parties must confer to develop a proposed discovery plan that indicates the parties views and proposals concerning:. (3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (4) any issues relating to claims of privilege or of 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;.
12 RULE 33(d) - INTERROGATORIES (d) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
13 RULE 34(a) ESI PRODUCTION (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information 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 translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
14 RULE 34(b) FORM OF ESI PRODUCTION (b) (i) (ii) (iii) Procedure..The request may specify the form or forms in which electronically stored information is to be produced.the response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection.if objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request the responding party must state the form or forms it intends to use. Unless the parties otherwise agree, or the court otherwise orders: a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and a party need not produce the same electronically stored information in more than one form.
15 RULE 37(f) - SANCTIONS (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.
16 DO THE NEW RULES CLARIFY MY OBLIGATIONS? Reasonably accessible Undue burden or cost Good cause Routine operation Good faith
17 WHAT IS ESI?
18 WHY DISTINGUISH ESI? Exponentially greater volume Do you know your terabytes?
19 SHOULD IT BE CALLED A TERROR-BYTE? Varies by type of document, but if , then roughly 40,000 boxes
20 WHY DISTINGUISH ESI? Exponentially greater volume Do you know your terabytes? Dynamic nature of ESI Are you improperly altering metadata? ESI may be incomprehensible when separated from the system that created it Native format or hard copy? - Advisory Committee Report at 18
21 ADDITIONAL CONSIDERATIONS WITH ESI Need to collect from more numerous locations Redundancy/Duplicability Disposal Obsolescence Cost Privilege
22 FRAMEWORK Overview of the Rule Changes Pre-Litigation Planning IT Audit Document Retention Policies Planning Discovery Conducting Discovery Costs Privilege
23 PRE-LITIGATION PLANNING In-house counsel: Conduct an IT Autopsy NOW Why now instead of when litigation is imminent? Outside counsel: Learn your clients systems NOW How do I justify this to the client? Document retention/destruction policy NOW Create or revise
24 WHY SHOULD I GO TO ALL THIS TROUBLE? Severity of misconduct SANCTIONS Severity of sanction Monetary sanctions Exclusion of evidence Adverse instruction Dismissal
25 CONGRATULATIONS YOU RE NOW AN IT PROFESSIONAL Backups Legacy Data Automatic Programs Why? Who? What? When? How? Where? Do I have it? Why? Archival Defragmenting Temp clean
26 CONGRATULATIONS YOU RE NOW AN IT PROFESSIONAL How many? Procedures for storage on personal hard drives? How many? Procedures for storage on personal hard drives? Any policies governing use? Portable hard drives USB keys CD/DVD Backups? Backups?
27 DOCUMENT RETENTION/ DESTRUCTION POLICY Destruction of documents does not equate to spoliation Do I really have to have one? YES! Having one may be evidence of good faith, so long as it is entered for the right reasons and is reasonable Can t you just give me a form policy? NO! No such thing as one size fits all Individual industries and regulations have a significant impact
28 DOCUMENT RETENTION/ DESTRUCTION POLICY Considerations What should be covered? How long? Who is in charge? Policing? Suspend for litigation hold?
29 WHAT DO I DO ABOUT TAPE BACKUPS? Remember, key is routine good faith operation of the system Consider good faith alternatives E.g., If you keep a copy of the backups existing at the time the litigation hold commences, can you then continue the recycling program afterwards and still assure that not relevant documents will be lost? The only completely safe solution is to end recycling when litigation hold commences
30 WHY IS THIS QUESTION SO DIFFICULT? The case law, committee notes and commentaries are singularly unhelpful It can be difficult to interrupt the routine There is CONSIDERABLE operation It of is computer unrealistic UNCERTAINTY systems to expect to parties as isolate and to to stop whether such routine a The party proposed preserve particularly rule Must a discrete also operation a recognizes party that corporation, parts of their that upon of the computer produces recognizing information systems large the they amounts as soon as of they threat of suspending information overwrite, interrupting [automatic deletion] litigation, NONETHELESS delete, anticipate preserve or update litigation. every shred HAS an It is of ongoing TO also paper, INTERRUPT undesirable; basis, the every THE result features can without be prohibitively expensive and OPERATION or creating would electronic OF THE problems be even document, ELECTRONIC greater for and the accumulation every larger backup INFORMATION system of duplicative and tape? burdensome, again in ways irrelevant that have data no that must be reviewed, making The answer is clearly no. Such a rule would counterpart SYSTEMS to managing it is using hard to discovery copy avoid information. any loss of information because -more Advisory expensive Committee Report and at time 83 consuming of the possibility cripple that large it corporations that might be sought are in almost discovery, always OR RISK involved in litigation. SEVERE SANCTIONS - Advisory Committee Report at 83 - Advisory Committee Report at 83 -Zubulake v.ubs Warburg LLC Advisory F.R.D. 212, Committee 217 (S.D.N.Y. 2003) Report at 83
31 FRAMEWORK Overview of the Rule Changes Pre-Litigation Planning IT Audit Document Retention Policies Planning Discovery Conducting Discovery Costs Privilege
32 RULE 26(F) CONFERENCE Must balance need for information against need to minimize disruption of routine operations critical to ongoing activities. - Advisory Committee Report at 34 Seek agreement regarding: Form of Production of Documents Native format? Duty of preservation Accessible and inaccessible information Search Terms Privilege Issues Cost sharing
33 THE RULE 16 CONFERENCE A complete and thorough Rule 26(f) conference is key The easier you make it for the court, the more likely the court is to adopt your plan Consider previewing the likely points of dispute Definitely address limitations, especially with respect to inaccessible data
34 FRAMEWORK Overview of the Rule Changes Pre-Litigation Planning IT Audit Document Retention Policies Planning Discovery Conducting Discovery Costs Privilege
35 CONDUCTING DISCOVERY UNDER REVISED RULES Preservation of Information Requesting & Responding to Discovery Form of Production Cost Shifting Privilege Issues Sanctions/Safe Harbor
36 DUTY TO PRESERVE Duty to preserve documents arises as soon as party knows or should know about litigation, or if litigation is reasonably anticipated in the future. Duty varies district-by-district
37 HOW DO I COMPLY WITH MY DUTY TO PRESERVE? Counsel should issue Litigation Hold to employees as soon as litigation begins-- ASAP Only those with litigation holds will likely be able to seek protection from sanctions under Rule 37(f) s new safe harbor provisions more later Periodically reissue Litigation Hold to all employees so that new employees are also aware of it
38 ASSESS THE SCOPE OF THE DUTY Make direct contact with key players Interview Importance of preservation Consider imaging hard drives Contact IT personnel Importance of preservation IT infrastructure Accessibility of Information Can it be found elsewhere? May need to preserve inaccessible, potentially relevant information Organize team of point persons in each department
39 COMMUNICATION IS KEY Contact opposing counsel immediately Scope of preservation Form of production Preservation letter? Seek guidance from Court
40 INITIAL DISCLOSURES Rule 26(a)(1)(B) substitutes Electronically Stored Information ( ESI ) for data compilations Must disclose description by category and location of documents & ESI relevant to claim or defense Should search available electronic systems for relevant information Disclose existence of documents in paper & electronic form Consider disclosing IT personnel or 30(b)(6) witness
41 DRAFTING/RESPONDING TO DISCOVERY REQUESTS New Rule 26(b)(2)(B): Limitations. A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. Responding party bears burden of showing ESI is not reasonably accessible because of undue burden or cost Information may still be ordered produced if Requesting Party shows good cause - Committee Notes to Proposed Amendments at 14
42 DRAFTING/RESPONDING TO DISCOVERY REQUESTS New Rule 26(b)(2)(B): Limitations. Court may set conditions (cost-shifting) Committee Notes: The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. Detailed enough so that others can evaluate burdens, costs, likelihood of relevance May still need to preserve inaccessible ESI - Committee Notes to Proposed Amendments at 14
43 ACCESSIBILITY OF DATA Examples of data identified in the Committee Report as present[ing] particular problems in terms of accessibility: Back up tapes intended for disaster recovery purposes that are often not indexed, organized or susceptible to electronic searching Legacy data remaining from obsolete systems, which is unintelligible to current systems Deleted data (including fragmentary data) that requires forensics for recovery Databases designed to create information in certain ways that cannot readily create that information in other ways - Advisory Committee Report at 42
44 ACCESSIBILITY OF INFORMATION Active, online data (hard drives) Near-Line data (computer accessible optical drives) Offline storage/archives (indexed by custodian name organized back up tapes) Offline storage/archives (disaster recovery tapes) Erased or fragmented data (not intended to be saved, capable of restoration) Legacy data/back up tapes for systems no longer supported More accessible Less accessible
45 REVISED RULES FOR DISCOVERY REQUESTS Rule 34 Document Requests Adds Electronically Stored Information ( ESI ) as category of information may be produced Rule 33(d) Interrogatories Relying on Business Records Adds ESI (replaced data compilation) ESI is proper type of information to rely upon in interrogatory answers May have to provide additional information to make equally accessible to requesting party Rule 45 (Subpoenas) revised to include ESI as appropriate information to seek
46 FORM OF PRODUCTION Entitled to specify form of production (paper vs. pdf, etc.) If not specified, responding party may produce in any form that is reasonably usable OR in that which ESI is ordinarily maintained ; Rule 34(b)(ii) If form specified, responding party must state whether they object to that form & what form they intend to produce Also must disclose if other forms available, even if requester only asks for one form. In re Bristol- Myers Squibb Sec. Litig., 2005 F.R.D. 437 (D. N.J. 2002); Storch v. IPCO Safety Products, Inc., 1997 U.S. Dist. LEXIS (E.D. Pa. Jul. 16, 1997). Only need produce one form for documents Rule 34(b)(iii)
47 DOCUMENT REQUEST DRAFTING/RESPONDING Broad requests in = Broad production out Consider narrowing to specific person s files and date ranges More productive, more likely to stand up If object to searching or producing ESI because unduly burdensome, must disclose what is not being searched and where it is Communicate with counsel Metadata? Quick Peek /Clawback
48 HOW DO I RESOLVE DISPUTES ABOUT THE SCOPE OF MY SEARCH? Requesting party should evaluate information from accessible sources before asking responding party to search and produce information from not reasonably accessible sources. If they still want you to search, parties should confer regarding burdens and costs of accessing/retrieving information, needs to support good cause showing, and limitations that should be imposed. If still in dispute Motion to Compel Motion for Protective Order - Committee Notes to Proposed Amendments at
49 HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH? Court balances burden and costs against particular circumstances in case. Committee notes cite these considerations: 1. Specificity of discovery request 2. Quantity of information available from other and more easily accessed sources 3. Failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources 4. Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources 5. Predictions as to the importance and usefulness of information 6. Importance of issues at stake in litigation 7. Parties resources - Committee Notes to Proposed Amendments at 17
50 HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH? If dispute regarding accessibility, Court may order sampling of offline data to determine relevance Zubulake I, 217 F.R.D. 309, 324 (S.D.N.Y. 2003) (ordered defendant to search and produce five backup tapes out of ninety-four backup tapes to determine whether relevant information existed on the backup tapes that was not present elsewhere) Delta Financial Corp. v. Morrison, 2006 N.Y. Misc. LEXIS 2232 (S. Ct. N.Y. August 17, 2006) (ordered plaintiff to do sample searches to determine whether relevant information existed on backup tapes; costshifted entire test run, including review, to defendant)
51 COST SHIFTING Traditional approach Responding party pays for response Limited by 26(c): Unduly burdensome, labor intensive, significant financial burden. New Rules 26(b)(2)(B) A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. If court finds something not reasonably accessible may still get it if prove good cause, but may have to share in costs. Cost of compliance may or may not include attorney review time Committee Notes to Proposed Amendments at 17: Suggests that cost of restoration can be cost shifted, unclear on attorney review time (although does note that the producing party s burden in reviewing information for relevance and privilege may be weighed by the Court when determining good cause) Zubulake: Court excluded attorney time
52 COST SHIFTING Zubulake factors Hierarchy of importance: 1. Extent to which request specifically tailored to discover relevant information 2. Availability of such information from other sources 3. Total cost of production, compared to the amount in controversy 4. Total cost of production, compared to the resources available to each party 5. Relative ability of each party to control costs and incentives to do so 6. Importance of the issues at stake in the litigation 7. Relative benefits to the parties of obtaining the information - Zubulake v. UBS, 217 F.R.D. 309, 322 (S.D.N.Y. 2003)
53 COST SHIFTING Zubulake factors followed by: ND Illinois (Wigington, additional factor importance of the requested discovery in resolving the issues in the litigation ) ED Wisconsin (Hagemeyer) ND California (OpenTV) Zubulake not followed in these jurisdictions: ND Texas Supreme Court of NY, Nassau County
54 ACCESS TO DOCUMENTS Rule 34(a) includes inspection, copying, testing Rule 33(d) Could permit court to allow direct access to ESI In practice, access only permitted if bad faith (noncompliance with discovery) Direct access only if that is necessary to afford requesting party an adequate opportunity to derive or ascertain an answer to the interrogatory ; Committee Notes to Proposed Amendments at 28.
55 PRIVILEGE ISSUES New Rules 26(b)(5) & 45(d)(2)(B) establish procedure only for addressing inadvertent disclosure of privileged materials Does not change substantive privilege law (i.e. whether production results in waiver)
56 PRIVILEGE ISSUES New Procedure (Rule 26(b)(5)) for retrieving inadvertently-produced material protected by privilege or work product Privilege holder notifies receiving party immediately upon becoming aware of disclosure After being notified, receiving party must return, sequester, or destroy Receiving party cannot use or disclose information (if already used or disclosed, must take reasonable steps to retrieve) Receiving party may promptly present information to court under seal for determination of claim Whether material privileged still substantive law issue
57 PRIVILEGE ISSUES Proposed FRE 502 Formalize subject matter waiver of AC/WP privilege for voluntary disclosure, exception: inadvertent disclosure 502(a): Subject Matter Waiver Requires production of similar information 502(b): Exception: Inadvertent disclosure if holder of privilege/wp took reasonable precautions to prevent disclosure, AND took reasonably prompt measures to rectify the error (pursuant to F.R.C.P. 25(b)(5)(B). Comment period ending Feb
58 SANCTIONS RULE 37 Situations that may warrant sanctions: 1. willful destruction of evidence 2. failure to preserve information on backup tapes 3. unreasonably or inconsistently enforced document retention policy 4. negligence in production 5. purposeful sluggishness in production 6. incomplete & inaccurate Rule 26 disclosures
59 SANCTIONS RULE 37 Modified to add safe harbor provision 37(f): Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system. Good faith requires litigation hold. If no hold, probably no safe harbor for inadvertent deletion. Intervention with deletion may be required; consider availability elsewhere, potential relevance Committee Notes: ordinary computer use results in routine alteration & deletion of information for reasons unrelated to litigation
60 WHAT DOES IT ALL MEAN? Learn what systems and types of information you will be dealing with as soon as possible Put guidelines in place now to streamline production issues in the future a little extra work on the front end may significantly reduce costs later Be prepared to address all e-discovery issues very early in the litigation process; have plans for your preferred methods of dealing with production issues Until further case law develops, err on the side of retention Always remember that demonstrable good faith is extremely important
61 SELECTED RESOURCES Amendments to the Federal Rules of Civil Procedure, available at Report of the Advisory Committee on the Federal Rules of Civil Procedure to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (May 2005), available at
63 THANK YOU
64 S. Richard Carden Jennifer M. Kurcz MBHB 300 South Wacker Drive Chicago, Illinois phone fax
65 INTERESTING NEW CASES In re NTL, Inc. Securities Litigation, 2007 WL (S.D.N.Y. 2007) (granting adverse instruction, costs and fees for failure to properly implement litigation hold) Hutchens v. Hutchens-Collins, 2007 WL (D.Or. 2007) (cost shifting does not apply to accessible ESI) Miller v. Holzman, 2007 U.S. Dist. LEXIS 2987 (D.D.C. 2007) (applying Sedona Conference principles in addressing litigation hold) In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D.N.Y. 2007) (requiring production of metadata for future productions in existing case) Quinby v. WestLB AG, 2007 U.S. Dist. LEXIS 2955 (S.D.N.Y. 2007) (addressing cost shifting in restoration of backup tapes) February 8, 2007
66 INTERESTING NEW CASES Ameriwood Indus., Inc. v. Liberman, 2006 U.S. Dist LEXIS (E.D. Mo. 2006) (conducting good cause analysis in granting request for imaging of hard drives) Zurich American Insurance Co. v. ACE American Reinsurance Co., 2006 U.S. Dist. LEXIS (S.D.N.Y. 2006) (granting sampling of opaque data storage system intentionally used by sophisticated company) Kentucky Speedway, LLC, v. Nat l Ass n of Stock Car Auto Racing, 2006 U.S. Dist. LEXIS (E.D. Ky. 2006) (citing Sedona Conference and commentator in endorsing a presumption against the production of metadata) Williams v. Sprint/United Management Co., 2006 WL (D. Kan. 2006) (denying production of s in native format where parties had previously agreed to production in other format) Flexsys Americas LP v. Kumho Tire U.S.A., 2006 U.S. Dist. LEXIS (N.D. Ohio 2006) (creating e-discovery plan for parties when they had not reached agreement on one) February 8, 2007
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