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1 Electronically Stored Information Robert Avery Chief, Laboratory Services MI Dept. Natural Resources and Environment

2 E S Electronically I Stored Information On December 1, 2006, new amendments to the Federal Rules of Civil Procedure, concerning the discovery of electronically stored information (ESI) in civil litigation at federal courts, took effect. Amendments and additions were made to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The state recently adopted these rules for litigation. These new rules on electronic discovery for ESI were based on principles, known as the Sedona Principles. E S I

3 THE PRINCIPLES Principle 1: Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation. Principle 2: When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.

4 Principle 3: Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party s rights and responsibilities. Principle 4: Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production. Principle 5: The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information. Principle 6: Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

5 Principle 7: The requesting party has the burden on a motion to compel to show that the responding party s steps to preserve and produce relevant electronically stored information were inadequate. Principle 8: The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities. Principle 9: Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

6 Principle 10: A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information. Principle 11: A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information. Principle 12: Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.

7 Principle 13: Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party. Principle 14: Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.

8 The amendments and principles provide a framework for conducting electronic discovery, obliging litigants to identify, preserve, and collect ESI very early in a case. The amendments affect all electronic data that may become involved in litigation. The potential impact for preserving ESI on public agencies is significant. The impact on private laboratories is unknown UNLESS the private laboratory is performing work under contract of a public agency.

9 WHAT IS ESI? ESI can be found in s, voic s, instant messages, text messages, documents, spreadsheets, databases, file fragments, metadata, digital images, and digital diagrams. It can be stored in every type of electronic media including hard drives, thumb drives, computers, handheld devices, backup tapes, and optical disks. For the laboratory community, it can be found in the instrument data files, LIMS, spreadsheets, etc.

10 I PRINT MY DOCUMENTS, WHY DO I NEED TO STORE THE ELECTRONIC FILE?

11 WHAT THE HARD COPY DOES NOT SHOW Microsoft Mail Internet Headers Version 2.0 Received: from coreexsmtp1.som.ad.state.mi.us ([ ]) by HCS084EXCHPE006.som.ad.state.mi.us with Microsoft SMTPSVC( ); Thu, 1 Apr :08: Received: from coreismtp3.state.mi.us ([ ]) by coreexsmtp1.som.ad.state.mi.us with Microsoft SMTPSVC( ); Thu, 1 Apr :08: Received: from corespam3.som.ad.state.mi.us ([ ]) by coreismtp3.state.mi.us with Microsoft SMTPSVC( ); Thu, 1 Apr :08: Received: from coreav1.michigan.gov ([ ]) by corespam3.som.ad.state.mi.us with InterScan Message Security Suite; Thu, 01 Apr :08: Received: from msginet01.grand-rapids.mi.us ([ ]) by coreav2 with InterScan Message Security Suite; Thu, 01 Apr :08: X-ASG-Debug-ID: f01ca0007-o5MPbP X-Barracuda-URL: Received: from MSGVMI06.grand-rapids.mi.us (localhost [ ])by msginet01.grand-rapids.mi.us (Spam & Virus Firewall) with ESMTPid 9E80D61C79D; Thu, 1 Apr :38: (EDT) Received: from MSGVMI06.grand-rapids.mi.us ([ ]) by msginet01.grand-rapids.mi.us with ESMTP id xndyar8wo9tax2kq (version=tlsv1 cipher=aes128-sha bits=128 verify=no); Thu, 01 Apr :38: (EDT)

12 METADATA CONTINUED X-Barracuda-Envelope-From: Received: from MSGPD401.grand-rapids.mi.us ([fe80::2d39:68f8:b070:3e17]) bymsgvmi06.grand-rapids.mi.us ([::1]) with mapi; Thu, 1 Apr :05: From: "Buchner, Sandy" To: Amy Vail Angella Anita Charles Dave Mary Steve Bylsma

13 METADATA CONTINUED Date: Thu, 1 Apr :05: X-ASG-Orig-Subj: FW: Lab Brochure Subject: FW: Lab Brochure Thread-Topic: Lab Brochure Thread-Index: AcrRpzzuT4DkLZdwSlmSagrcu9QXfwAFeEew Message-ID: Accept-Language: en-us Content-Language: en-us X-MS-Has-Attach: yes X-MS-TNEF-Correlator: acceptlanguage: en-us Content-Type: multipart/mixed; boundary=_004_000319aef b3a64be07601a55921f9m SGPD401grand_ MIME-Version: 1.0 X-Barracuda-Connect: UNKNOWN[ ] X-Barracuda-Start-Time: X-Barracuda-Encrypted: AES128-SHA

14 METADATA CONTINUED X-Barracuda-Virus-Scanned: by City of Grand Rapids Spam Firewall at grand-rapids.mi.us X-Barracuda-Spam-Score: X-Barracuda-Spam-Status: No, SCORE= using global scores of TAG_LEVEL=3.5 QUARANTINE_LEVEL= KILL_LEVEL=4.0 X-imss-version: X-imss-result: Passed X-imss-scanInfo: M:B L:E SM:3 X-imss-tmaseResult: TT:1 TS: TC:1F TRN:65 TV: ( ) X-imss-scores: Clean: C:2 M:3 S:5 R:5 X-imss-settings: Baseline:4 C:4 M:4 S:4 R:4 ( ) Return-Path: X-OriginalArrivalTime: 01 Apr :08: (UTC) FILETIME=[E666A070:01CAD1BD] --_004_000319AEF B3A64BE07601A55921F9MSGPD401grand_ Content-Type: multipart/alternative; boundary="_000_000319aef b3a64be07601a55921f9m SGPD401grand_"

15 METADATA CONTINUED --_000_000319AEF B3A64BE07601A55921F9MSGPD401grand_ Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable --_000_000319AEF B3A64BE07601A55921F9MSGPD401grand_ Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable --_000_000319AEF B3A64BE07601A55921F9MSGPD401grand_- - --_004_000319AEF B3A64BE07601A55921F9MSGPD401grand_ Content-Type: application/pdf; name="lab Seminar Brochure.pdf" Content-Description: LAB Seminar Brochure.pdf Content-Disposition: attachment; filename="lab Seminar Brochure.pdf"; size=558148; creation-date="thu, 01 Apr :26:09 GMT"; modification-date="thu, 01 Apr :26:09 GMT" Content-Transfer-Encoding: base64 --_004_000319AEF B3A64BE07601A55921F9MSGPD401grand_-

16 INSTRUMENT DATA SYSTEMS ARE SIMILAR IN MAINTAINING METADATA THAT IS NOT VISIBLE OR PRINTED HARD COPIES DO NOT CONTAIN ALL THE METADATA AVAILABLE HARD COPIES CAN BE MANIPULATED PRIOR TO GENERATION ORIGINAL ELECTRONIC DATA FILES MUST SUPPORT THE HARD COPIES

17 MUST PLAN FOR RECORD STORAGE DEVELOP A RECORDS RETENTION SCHEDULE Identify the record categories Identify the time to be stored on-site Identify the time to be stored off-site Identify records disposal mechanism STICK TO THE RETENTION SCHEDULE!!!!!

18 Category EXAMPLE STORAGE Item # Title Laboratory Analyses Records-Bench Sheets On-site CR+1 Off-site CR+7 This record includes all computer generated bench sheets: raw data sheets, chromatography charts and quality control data Laboratory Analyses Records-Electronic Data Files CR+1 CR+7 - This record includes all computer generated files: raw data files, chromatography charts calibration curves, and other files required for processing instrument data.

19 IDENTIFY RECORDS DISPOSAL MECHANISM DESTRUCTION OF MATERIAL DUMPSTER SHREDDING BURNING LANDFILL ERASE & REUSE (Flash Memory, HD, tape)

20 Amended Rule 37 provides that, absent exceptional circumstances, a court may not impose sanctions under the rules on a party for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system. The Amended Federal Rules do not define good faith or routine, but litigants should not expect broad protection in this provision, given the generally accepted requirement for document preservation once litigation is imminent. Additionally, a company likely will not receive the benefit of the doubt if its records are disposed of without showing that it followed a valid records retention policy.

21 STICK TO THE RETENTION SCHEDULE!!!!! MOST PROBLEMATIC MUST BE ROUTINE PRACTICE CANNOT BE SPORADIC LOOK WHAT I FOUND NOT!

22 Failure to follow the Records Retention Schedule will show as inconsistency and may be viewed as the potential hiding of information. Past penalty awards have been as high as millions of dollar$

23 REVIEW IDENTIFY THE RECORDS HARDCOPY/ESI DEVELOP A RECORDS RETENTION SCHEDULE ROUTINELY DESTROY RECORDS AT END OF RETENTION PERIOD SAVE ALL DATA ON LITGATION HOLD STICK TO THE RETENTION SCHEDULE!!!!!

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