CMA Shipping Ethics and E-Discovery in Shipping Disputes

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1 CMA Shipping 2015 Ethics and E-Discovery in Shipping Disputes March 25, 2015 Vincent J. Foley, Holland & Knight LLP (212)

2 CMA Shipping 2015 Ethics and E-Discovery for Shipping Disputes What makes E-Discovery different? Ethics Rules and Duties Related to E-Discovery Special Considerations for Shipping Companies 2

3 E-Discovery The dramatic inflation in the amount of information stored by companies and individuals today, along with the intangible and disorganized nature of this information, is having profound effects on litigation processes. Ralf C. Losey, Lawyers Behaving Badly, 60 Mercer Law Rev. 983, 985 (2009) 3

4 E-Discovery Everyone is a file keeper Metadata What Makes it Different ESI is Hard to Get Rid of Multiple Sources and Locations for Potentially Relevant ESI Many Options for Preservation and Production 4

5 E-Discovery What Makes it Different Everyone is a file keeper In a shipping company, there can potentially be many custodians each with large amounts of relevant ESI. There are often multiple copies and multiple versions of the same document. (de-duplication, threading) Every custodian makes decisions as to where to store ESI (i.e. on the company server, local drives, home computers, smart phone, social media). 5

6 E-Discovery What Makes it Different Metadata Metadata, which most computer users never see, provide information about an electronic file, such as the date it was created, its author, when and by whom it was edited, what edits were made, and, in the case of , the history of its transmission. Managing Discovery of Electronic Information: A Pocket Guide for Judges, 3 (2007) 6

7 E-Discovery What Makes it Different ESI is Hard to Get Rid of Deleted data may remain on storage media in whole or in part until they are overwritten or wiped. Even after the data itself has been wiped, directory entries, pointers, or other information relating to the deleted data may remain on the computer. Soft-deletions are data marked as deleted, but not yet physically removed or overwritten. Soft-deletions can be fully restored. Data may be stored in multiple locations. An may be deleted from a work station but still remain on the server. 7

8 E-Discovery What Makes it Different Multiple Sources and Locations for Potentially Relevant ESI Each custodian of ESI has many different locations where potentially relevant ESI may be stored: Office Server Office Computer Server Back-up Locations DVDs, CDs, thumb drives Home Computers / laptops Personal accounts Smart phones, ipads Web-based storage (i.e. icloud) Social media 8

9 E-Discovery What Makes it Different Multiple Sources and Locations for Potentially Relevant ESI ESI is Not Just ! Text Messages Instant Messages Photos Web-browsing history Device location history Posts on social media Digital calendars and planers 9

10 E-Discovery Not Thinking about Social Media Think Again! Although the law regarding the scope of discovery of [ESI] is still unsettled, there is not dispute that social media information may be a source of relevant information that is discoverable Reid v. Ingerman Smith LLP, 2012 WL (E.D.N.Y. Dec. 21,

11 E-Discovery What Makes it Different Many options for Preservation and Production Preserving only a print out of an is not sufficient. The native file and metadata must also be preserved. Print outs are of significantly less evidentiary value given that the metadata is not longer available. Sekisui American Corp. v. Hart, No. 12 Civ (S.D.N.Y. Aug. 15, 2013) 11

12 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.1 Competency Rule 1.3 Rule 1.6 Rule 3.2 Rule 3.3 Rule 3.4 Rule 5.3 Diligence Confidentiality Expediting Litigation Candor Toward the Tribunal Fairness to Opposing Party and Counsel Responsibilities Regarding Non-lawyer Assistance 12

13 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.1 Competency A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment 8: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirement to which the lawyer is subject. (Underline Added in 2012 Amendment Revision) 13

14 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.1 Competency Do you have the requisite knowledge and skill to conduct E- Discovery? Do you know the benefits and risks associated with the relevant E-Discovery technology? - Preservation, collection, and production of ESI - Predictive coding and other forms of technology assisted review - Metadata analysis 14

15 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.6 Confidentiality (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Comment 18: The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. 15

16 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.6 Confidentiality Comment 18: Factors to be considered in determining the reasonableness of the lawyer s efforts include, but are not limited to: - The sensitivity of the information - The likelihood of disclosure if additional safeguards are not employed - The cost of employing additional safeguards - The difficulty of implementing the safeguards - The extent to which the safeguards adversely affect the lawyer s ability to represent the client (e.g., by making software excessively difficult to use) 16

17 Ethics and E-Discovery The Model Rules of Professional Conduct (2014) Rule 1.6 Confidentiality Communication with the client is key. Before you import your client s ESI on your system, discuss with your client: - How confidential is the ESI? - The safeguards you will implement to protect the disclosure or unauthorized access to the ESI (Vendor Confidentiality Agreement, Password Protection, Encryption Software) - Whether your client wants additional safeguards, and the cost associate with implementing those safeguards - Obtain your client s informed consent 17

18 Ethics and E-Discovery The Overlapping Causes of Misconduct Lack of Technological Understanding or Awareness - Don t have to be an IT expert, but you do have to understand and be aware of the technological issues associated with E-Discovery. Counsel s Duty to Locate Relevant Information - Understand Counsel s professional duties to actively oversee compliance with litigation hold for potentially relevant ESI. ( Zubulake V ) - Understand your and your client s document retention policies and data retention architecture for storage of ESI. - Potential for Sanctions for the Lawyer and the Client Over Zealousness - Do not make your client s problems your problems. 18

19 Ethics and E-Discovery Special Consideration for Shipping Disputes Where is your client s potentially relevant ESI? Vessel Sourced ESI - Onboard computers Bridge, Cargo Control, Engine Room, C/E or C/Mate or 1st Ass t Engineer. - Vessel account Vessel Specific User Profiles - Navigation SoftwareGPS and AIS units (Electronic Chart) - Individual Crew Member s Laptops or Smart phones - Vessel Data Management e.g. Equipment Maintenance 19

20 Ethics and E-Discovery Special Consideration for Shipping Disputes Who manages your client s ESI? - Shipping companies tend to be highly segregated, far-flung enterprises with remote locations for different functions. - Does your client manage its own IT system, or is it managed by a corporate parent or affiliate? - Does your client back-up remote sourced (i.e. vessel or Singapore bunker desk) with archived storage? - Does your client use cloud-based storage or third party storage? 20

21 Avoiding E-Discovery Misconduct Learn and understand where all of your client s relevant data sources may be and how they operate - Understand the relevant technology or get help from an IT specialist! Identify key players or custodians - may include former employees or contracted third parties Preserve early and preserve broadly - implement a broad litigation hold immediately, then narrow if appropriate, and follow-up with IT personnel. 21

22 Avoiding E-Discovery Misconduct Document preservation steps and decisions Update litigation holds frequently Actively oversee your client s compliance with the litigation hold - Counsel must oversee compliance with the litigation hold, monitoring the party s efforts to retain and produce the relevant documents. Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) 22

23 Questions? 23

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