Vermont Bar Association. E-Discovery, Part 4. March 21, 2014 Hilton Burlington, VT

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1 Vermont Bar Association Seminar Materials 57 th Mid-Year Meeting E-Discovery, Part 4 March 21, 2014 Hilton Burlington, VT Faculty: Matthew B. Byrne, Esq. James Knapp, Esq. Greg Weimer, Esq.

2 Vermont Bar Association 57 th Mid-Year Meeting March 20 & 21, 2014 E-Discovery, Part 4 Speaker Information: Matthew B. Byrne, Esq. Gravel & Shea Burlington, VT James E. Knapp, Esq. Vermont Department of Taxes Division of Property Valuation & Review Montpelier, VT Greg Weimer, Esq. Lynn, Lynn & Blackman, PC Burlington, VT

3 Discovery of Electronically Stored Information Matthew B. Byrne Gravel and Shea (802)

4 2009 Amendments Vermont Rules of Civil Procedure Affected: 16.2 Pre-trial Conference 26 Discovery Scope 33(c) Interrogatories 34 Request to Produce 37(f) Sanctions 45 Subpoenas

5 The Rules Vermont Rule of Civil Procedure 26(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. Likely to Be a Fact Specific Inquiry Another Step Removed From the Merits

6 The Rules Vermont Rule of Civil Procedure 26(f): Following the discovery conference, the court shall enter an order...identifying... any issues about discovery of electronically stored information...

7 The Rules Vermont Rule of Civil Procedure 34: Documents and electronically stored information stand on equal footing Scope of ESI is broad can be found in any medium Requesting party can specify the form of production

8 The Rules Commentary is helpful to interpretation Lists a number of third party sources to assist people in understanding the amendments

9 Electronic Evidence: Still Have to Try The Case

10 General Evidentiary Guidelines 1) Know the Rules 2) Who will make the decision? A) Admissibility B) Weight 3) What evidence do I need to convince the trier of fact about admissibility and the weight to be given the evidence?

11 The Rules of Evidence Relevant (401 and 402) Authentic (900 s) Hearsay (800 s) Best Evidence (1000 s) Unfair Prejudice (403)

12 Who Makes the Decision? Judge makes Preliminary Ruling on Admissibility Not Bound by Rules of Evidence Except when Relevancy Conditioned on Fact Jury May Have Much Larger Role In Determining Authenticity for Electronically Stored Evidence As a Result, More of Admissibility Evidence May Need to Be Independently Admissible.

13 Example #1: Car Crash Smart Phone Driver, Passenger, Third Party Not in Car Activity Information What were they doing? Location Information Can you determine speed? Smart Cars Satellite Radio, 911 Location Tracker, Navigation Programs, Integrated Computer Systems Third Parties Witness Tech., Traffic Cameras

14 Example #2: Posting Comments On Web Page Who posted it? IP Address Third Party Provider

15 Sanctions Pension Comm. v. Banc of Am. Sec., 685 F. Supp. 2d 456 (2010). Failure to issue a written litigation hold is gross negligence Failure to collect from key players constitutes gross negligence Failure to collect records from all employees constitutes negligence Failure to take all appropriate measures to preserve ESI likely falls into the negligence category

16 Avoiding Sanctions Have Conversation Early About Preserving Evidence Follow Up In Writing Engagement Letter Litigation Hold Memorandum Check-In With Client To Make Sure Complying Talk with IT Personnel

17 Avoiding Sanctions Have Early Conversation With Opposing Counsel Outline What You Want/Define Preservation Duties Word Search Parameters

18 Problem of Incentives Litigation Holds, Preserving Evidence, etc. impose costs of litigation almost immediately without any regard for the merits of the dispute Despite some strongly worded opinions, obtaining sanctions is exceptionally difficult Strong incentive to do nothing

19 Case Law Well Developed Can Find Cases on a Variety of Subjects Technological Issues Preservation Issues Search Terms Production Issues

20 Case Law Form of Production Form of Production Specify at the Outset In re Porsche Cars N. Am., Inc., 279 F.R.D. 447 (2012). Metadata easier to get if specify from the Outset

21 Case Law Search Terms McNulty v. Reddy Ice Holdings, Inc., 271 F.R.D. 569 (E.D. Mich. 2011) Ordering meet and confer about search terms for 4 terabytes of data (roughly 880 million pages) Mikron Indus. V. Hurd Windows & Doors, Inc., 2008 U.S. Dist. LEXIS (W.D. Wash. 2008). Requires a significant level of evidence to demonstrate

22 Case Law Cost Shift Ind. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. 2012) Cost shift if Not reasonably accessible because of undue cost or burden Inaccessible data is generally stored on backup tapes and erased, as well as fragmented or damaged data, all of which required significant manipulation and reconstruction...

23 Additional Evidentiary Slides Unlikely to Use Follow

24 Authentication Is What It Claims To Be. Testimony of Witness With Knowledge. 901(b)(1) Author, Recipient IT Person with Prior Familiarity With System Testimony of An Expert. 901(b)(3) Computer Forensic Person Has to Have Specimen for Comparison

25 Authentication Distinctive Characteristics. 901(b)(4) addresses, signature blocks at bottom of e- mails, testimony surrounding content of message Hash Numbers Unique identifier applied by Computer Examine Metadata of Document Process or System. 901(b)(9)

26 Authentication Particularized Content to Authenticate Information Only the Purported Author Would Know Serial Numbers Credit Card Numbers Account Information

27 Information on Web Pages That Someone Said Something Must Be Prepared to Prove that the Words Are There Because the Owner Put Them There A predicate for business records if there is a lack of trustworthiness as to the source. OR That the Statement is True. United Tied Rangers 0-0 On September 14, Wikipedia?? Judge with Bear Heads

28 Proposed Federal Rules Updates GREGORY A. WEIMER LYNN, LYNN & BLACKMAN, P.C.

29 Fed. R. Civ. P. 1 Fed. R. Civ. P. 16 Fed. R. Civ. P. 26 Fed. R. Civ. P. 30 Fed. R. Civ. P. 33 Fed. R. Civ. P. 36 Fed. R. Civ. P. 37 OVER VIEW

30 Web Link

31 [T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Committee views this as modest addition Attempt to increase cooperation among litigants and counsel. Fed. R. Civ. P. 1

32 Sedona Conference Cooperation Proclamation Growing concern that excessive adversarial behavior ratchets up litigation costs in electronic discovery Origins

33 Reduce the time by which the judge must issue a scheduling order. requires that scheduling conference be held face-to-face, no longer permits them to be held by telephone, mail, or other means allows scheduling order / discovery plan to provide for the preservation of ESI and to include clawback agreements reached under FRE 502 Fed. R. Civ. P. 16

34 Proportionality x 3 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1)

35 26(b)(2)(C)(iii) always had that language Proposed rule merges it into the scope of discovery Pros/Cons Who determines, requesting party, receiving party, court? Overly restrictive? Prevents overbroad/expensive discovery, forced settlement to avoid costs The good and bad

36 Downsizing is coming Would limit depositions from 10 to 5, with more per leave of court Seven hours in a day down to six Interrogatories from 25 down to 15 Requests to admit limited to 25 Rule 34(b)(2)(C) would require an objection state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 30, 33 and 36

37 The purpose as explained by the Advisory Committee- proposed amendment is designed to provide more significant protection against inappropriate sanctions, and also to reassure those who might in its absence be inclined to over-preserve to guard against the risk that they would confront serious sanctions. Fed. R. Civ. P. 37

38 court may impose any of the sanctions listed in Rule 37(b)(2)(A) or give an adverse-inference jury instruction only if the court finds: (A) that the failure was willful or in bad faith, and caused substantial prejudice in the litigation; or(b) that the failure irreparably deprived a party of any meaningful opportunity to present a claim or defense. Fed. R. Civ. P. 37

39 E-Discovery Working with Consultants James Knapp

40 EDRM e-discovery

41 EDRM explained Information Management What you hope your client was doing before the litigation started Identification What kind of information Where is it How is it accessed

42 More EDRM Preservation Saving the relevant information and preventing loss of ESI Collection Getting the ESI all in one place for processing Part of preservation obligation Processing Reduce volume, remove duplicates, Translate into better formats for review

43 EDRM almost done Review Assess relevance and privilege claims Analysis Content and context of the ESI Who, What, Where, When, How Production Sharing the relevant and not-privileged material Presentation Just what it says

44 Where Do the Players Fit Information management client Identification - client with attorney s and consultant s assistance You need to know enough about ESI and storage options to help client identify relevant material Preservation client with help from attorney or consultant Collection collaborative effort client and consultant or outsource

45 Continuing with the Players Processing, review and analysis Attorney how much attorney time is practical Consultant operating under instructions from attorney Outsource to e-discovery firm Production consultant working under supervision or attorney Again, it s the cost Presentation - Attorney

46 Reminder E-discovery and forensics are not the same An un-named source e-discovery is forensics without the rules E-discovery EDRM generally for live data Forensics recovery of ESI in a controlled and documented system May include deleted files, hidden materials, analysis of who did what, when and how

47 The Consultant Retained for technical not legal skills Careful not to assume too much knowledge outside of technical area E-discovery consultant does not have to have background in forensics May need two consultants Finding a consultant Can be challenging limited options

48 The Contract Prepare a good contract Key Define scope of work No gaps All aspects of work covered Open to expansion Stop limits May discover new work to be done Warning as work approaches $$$ limits Probably can t stop in the middle of a project But helps to know when budget busted

49 Be Prepared E-discovery and Forensics are not quick No magic bullet Sometimes the answer is there, sometimes not Good planning reduces risk Fortuitous discovery Qualcomm the answer to a simple question discloses significant cache of information

50 DIY or Consultant DIY Your time and your client s time Money billing at lawyer rate probably too high Need some skills Careful, you might morph from attorney to witness OK for ediscovery probably not for forensics Consultant Efficient use of time Possibly more cost effective Skilled in process No risk of attorney becomes witness May be hard to find

51 Tools for E-discovery Identification Manuals and diagrams Network footprint tools Search tools Windows search tool X1 Blunt instrument Viewing tools Refined search, requires installation Quickview Works on many formats Collection Key preserve native format and metadata Collect specific information SafeCopy Harvester Encase Image the hard drive Capture it all FTK Imager Encase Raptor

52 Tools for E-discovery Collections and analysis Digital War Room Pro Single user; relatively cost effective Dump collected information into program Creates index and provides search tools

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