1 Electronic Discovery Presented by: Jonathan Adams
2 Our Goal Explain E-Discovery in layman s terms Equip you to be able to add value to your organization
3 SALIX is the region s leading E-Discovery Provider and Litigation Support Company 3 Locations 30 employees 2,500 customers All the local Fortune 500 companies 23 out of the largest 25 law firms in Cinti 9 out of the largest 10 law firms in Dayton Over 100 cases involving E-Discovery last year SERVICE-ACHIEVEMENT-LEADERSHIP-I I NTEGRITY-EXPERTISEEXPERTISE
4 What is E-Discovery? Paper-Based Discovery- Which file cabinets contain information pertaining to Jon Adams human resource file? What custodians have information in their possession that may pertain to Jon Adams human resource file? Electronic Discovery- What computer systems contain information pertaining to Jon Adams human resource file? What custodians may have information on their computer, laptop, cell phone, , file server, Facebook page, etc. that pertains to Jon Adams human resource file?
5 Why Amend the Federal & Ohio Rules of Civil Procure? It was amended to provide a framework for handling electronically stored information as evidence.
6 What is ESI? ELECTRONICALLY STORED INFORMATION , word documents, excel spreadsheets, PDAs, Blackberrys, text messaging, blogs, twitter, web surfing histories, Facebook, MySpace, instant messages, pictures, videos, printer memory, video files, audio files, server data, log files, back-up tapes, PDF images, TIFF, JPEG, BITMAP ANY ELECTRONIC INFORMATION
7 Paper-Based Discovery Model Paper-Based Discovery Identify ypotentially relevant information Copy the files Review the boxes of paper Determine confidentiality and privilege Copy, bates label, copy Produce to the other side Prepare for and present in trial
8 Electronic information is growing exponentially if if you have not dealt with E-discovery- you will.
9 New Role: Legal Technologist It is necessary to thoroughly understand the responding party s computer systems both with respect to active and inactive data (Zubulake) I can t imagine how counsel who is responsible cannot seek relevant electronic information (Judge Preska, author of Metropolitain Opera) Counsel must understand the clients Data Retention Architecture (Zubulake)
10 4000 Boxes 13,5000,000 pgs 2000 Boxes 6,750,000 pgs 1000 Boxes 3,375, pgs 1 Box 3,375 pgs 4 Boxes 13,500 pgs 16 Boxes 54,000 pgs
11 Types of Data Active Data (App files and ) Inactive Data (back-ups) Deleted eeted Files Metadata
12 Types of Data Metadata
13 Types of Data Active Data (App files and ) Inactive Data (back-ups) Deleted eeted Files Metadata
14 What is the big deal? NEWORK DIAG
15 Paper-Based Discovery Model Electronic Discovery Model
16 What is the benefit of EDRM? Electronic Discovery Reference Model provides a framework of processes and educational materials to help you address the challenges of ELECTRONIC DISCOVERY.
17 Stages of EDRM
18 Information (Records) Management Review Policies (Retention, Legal Hold, , etc.) Most policies are inadequate Creates risk Sarbanes-Oxley Act, FACTA, HIPAA, GLB, and other regulations cover corporate data responsibility. "Document retention ti policies, lii which hihare created tdin part tto keep certain ti information if from getting into the hands of others, including the Government, are common in business... It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances." Arthur Andersen v. U.S., 125 S.Ct. 2129, 2135 (U.S. May 31, 2005). Legal Hold policy needs to be clear, implemented quickly, regular communicationdefensible Amended ORCP 37 (f)- No sanctions for ESI lost as a result of the routine, good-faith operation of an electronic information system.
19 ORCP 37 (f)- Safe Harbor 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. The court may consider the following factors in determining whether to impose sanctions under this division: 1. Whether and when any obligation to preserve the information was triggered; 2. Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; 3. Whether the party intervened in a timely fashion to prevent the loss of information; 4. Any steps taken to comply with any court order or party agreement requiring preservation of specific information; 5. Any other facts relevant to its determination i under this division. i i
20 Good Compliance Cuts Legal Costs, Information Management, Jan/Feb 2009
21 Stages of EDRM
22 High Level overview of E-Discovery Identify Preserve & Capture Search & Cull Review Produce
23 Identification The process of learning the location of all data which you or your client may have a duty to preserve and potentially disclose in a pending or prospective legal proceeding. Steps in Determining Scope of Responsive Data Likely custodians of relevant information Where and how is data stored? Backed-up? Differences between actual practice and written procedures Casting a Broad Net Amended ORCP 26(B) (4)- The party is not required to provide ESI if production is too burdensome or expensive compared to the potential value of the discovery. Potentially limits i scope
24 ORCP 26 (B) (4) Electronically stored information. A party need not provide discovery of electronically stored information when the production imposes undue burden or expense. On motion to compel discovery or for a protective order, the part from whom electronically stored information is sought must show that the information is not reasonably accessible because of undue burden or expense. If a showing of undue burden or expense is made, the court may nonetheless order production of electronically ll stored information if the requesting party shows good cause. The court shall consider the following factors when determining if good cause exists:
25 ORCP 26 (B) (4) cont. (a) (b) (c) (d) Whether the discovery sought is unreasonably cumulative or duplicative; Whether the information sought can be obtained from some other source that is less burdensome, or less expensive; Whether the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; and Whether the burden or expense of the proposed discovery outweighs the likely benefit, taking into account the relative importance in the case of the issues on which electronic discovery is sought, the amount in controversy, the parties d th i t f th d di i l i th i resources, and the importance of the proposed discovery in resolving the issues. In ordering production of electronically stored information, the court may specify the format, extent, timing, allocation of expenses and other conditions for the discovery of the electronically stored information.
26 Preservation Enormous challenge for organizations Must begin as soon as litigation is reasonably anticipated ORCP 37 (F)(1) & (3) The importance of the Meet and Confer FRCP- required; ORCP- discretionary Manage the Legal Hold Process Written instructions to possible custodians and stakeholders not to delete relevant information Issue communication early and reminders often Case law Amended ORCP 37 (f)- No sanctions for ESI lost as a result of the routine, good-faith operation of an electronic information system.
27 What is the big deal? NEWORK DIAG
28 Collection The acquisition of electronic information marked as potentially relevant in a pending litigation. It should be collected in a manner that is comprehensive, maintains it content integrity and preserves its form. Metadata If it needs to be produced, do not alter (open, copy, etc.) Options for Collections Forensic Collection Live Collection Chain of Custody Document collection activity, document access, document personnel Hashing ESI- creating a fingerprint to confirm that data has not be altered
29 High Level overview of E-Discovery Identify Preserve & Collect Search & Cull Review Produce
30 Processing Culling- the process of programmatically removing content that is irrelevant Deduplication System Files/Known File Types National Institute of Standards and Technologies Searching- the process of identifying content that is most likely relevant and will require review Keyword Search Custodian List Timeframe/Date Range File Type More than 90% of collected electronic content can be non-responsive
31 High Level overview of E-Discovery Identify Preserve & Capture Search & Cull Review Produce
32 Review Technology that enhances the process Online Review Tools In-House Review Tools Native v. TIFF/PDF Review Native : (Excel), cost, original state TIFF/PDF Review: Redaction
33 Analysis The process of evaluating a collection of electronic discovery materials to determine relevant summary information, i such as key topics of the case important people specific vocabulary and jargon important individual document Brief overview of analytic tools that are available
34 Analytic Tools Analytic tools helps clients pare down review sets, find key documents, identify confidential or privileged documents, remove spam and analyze large document populations. p Cut Review Costs with Key Document Clustering. Identify key documents and use them to find similar documents from the larger population. Cluster documents based on concepts. Segregate spam and other irrelevant content to reduce review populations. Target Review through Predictive Ranking. Use initial tagging as a base to find other potentially responsive documents for more efficient review. Rank by likely l relevance. Drill into Results Sets by Key Concepts. Analyze search results by concepts and drill down dynamically into your document population. Review Threads and Near Dupes. Cut through redundant data and group similar documents.
35 Produce Paper- ESI is printed to paper and paper is produced to the other side Images- ESI is produced as.tif or.pdf files, along with the associated metadata and full text Quasi-native- For example, an IBM AS400 database would be produced as an ASCII, comma-delimited file with associated file and field structural information Native- ESI is produced as it is maintained and used Amended ORCP Rule 34(B) and 34(B)(3) ) Request may specify the form or forms in which ESI is to be produced. Best Practice: Attempt to agree in advance on production formats Qualcomm, Inc v. Broadcom Corp. (S.D. Cal. January 7, 2008) Amended ORCP Rule 26(B) (6)(b) Clawback provision
36 Qualcomm, Inc v. Broadcom Corp. (S.D. Cal. January 7, 2008) 21 s found Over 200,000 more pages of s eventually located--- AFTER the trial Counsel failed to follow-up on indications that additional responsive ESI existed. Over $8 million in sanctions Responsibility to produce responsive ESI is a continuing one.
37 ORCP 34 (B) Procedure. Without leave of court, the request may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon the part. The request shall set forth the items to be inspected either by individual item or by category and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced, but may not require the production of the same information in more than one form.
38 ORCP 34 (B) (3) If a request does not specify the form or forms for producing electronically stored information, a responding party may produce the information in a form of forms in which the information is ordinarily maintained if that form is reasonably useable, or in any form that is reasonably useable. Unless ordered by the court or agreed to by the parties, a party need not produce the same electronically ll stored information in more than one form.
39 ORCP 26 (B) (6) (b)- Clawback Provision 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 receiving party must promptly return, sequester, or destroy the specified information and any copies within the party s possession, custody or control. A party may not use or disclose the information until the claim is resolved. A receiving gparty may ypromptly p ypresent the information to the court under seal for a determination of the claim of privilege or of protection as trial preparation material. 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.
40 High Level overview of E-Discovery Identify Preserve & Capture Search & Cull Review Produce
41 Stages of EDRM
42 Presentation Using ESI in Depositions, Hearings & Trial Printed copy Electronic presentation PowerPoint, Trial Director, Sanction
43 Key Takeaways The EDRM starts with good records management Studies show that real dollars can be saved Get you arms around the legal hold process Most attorneys are not legal technologists Don t be intimidated Importance of Meet & Confer- How can you help? # of relevant custodians File types & locations Accessible vs. inaccessible ESI Format of production Reasonable timeframe
44 SALIX The Content Company