Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013

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1 MDLA TTS August 23, 2013 ediscovery for DUMMIES LAWYERS Kate Burke Mortensen, Esq. Scott Polus, Director of Forensic Services 1

2 Where Do I Start?? You Don t have to be an Expert Must know when you need one For what? Where do I start? What s ESI?? Starts with knowing your case and the information Goal: Proportionality and Communication i.e. amendments to MRCP and FRCP Reduce cost and increase efficiency and cooperation An Attorney s Ethical Duty ABA Model Rule 1.1 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 education requirements in which the lawyer is subject Rule Requirements Rule 1 Proportionality It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties resources, and complexity and importance of the issues at stake in the litigation. 2

3 Rule Requirements Rule 26.02(b) Limitation on Discovery Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Electronically Stored Information Network Servers s Microsoft Outlook Lotus Notes Microsoft Office Documents Word PowerPoint Excel The Basics: What is ESI? More ESI.. Electronically Stored Information Back-up Tapes Laptops External Drives/Thumb Drives Social Media Cellular Devices 3

4 The Start Line: What is the EDRM? EDRM develops guidelines, sets standards and delivers resources to help e-discovery consumers and providers improve quality and reduce costs associated with ediscovery Participant members include law firms, corporations, service providers and software providers Establish best practices for processing ESI referred to as the EDRM VOLUME RELEVANCE 4

5 Information Management/Records Management Get your ESI house in order to mitigate risk Should be your and your client s goal - COMMUNICATE Know your client s systems do they have a policy in place? Does your client have an Information Management Professional? Identify & retain outside experts/vendors get team in place IT & Records to perform inventory IT architecture and inventory Prepare computer network and data location map Can you search your records for easy retrieval? Your Responsibility: Litigation Hold Procedures Identification Evaluate scope of electronic and paper data that fall within discovery Identify key witnesses and location of discoverable information Custodian Interviews, checklists Obvious players and not-so-obvious players Categorize data (live, ready-archival, back-up) 5

6 Identification - continued More Responsibilities: Initial Disclosures Rule 26 MRCP and Rule 26 FRCP Required Disclosures: Requires a copy or description of all documents and ESI New state rule mirrors federal rule Promotes Early Case Assessment/Early Data Assessment Cooperation Important to agree upon processing and production procedures including format (Native or TIFF) Valeo Electrical Systems v. Cleveland Die & Mfg, 2009 WL (E.D.Mich. June 17, 2009). Production of 270,000 pages of searchable PDFs. Identification - continued Tips and Tools: TIP: Whether state or Federal Court, discuss ESI issues early and often! Federal Rules have required it since 2006 and now Minnesota Rules require it Federal Rule of Evidence 502(d) A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court in which even the disclosure is also not a waiver in any other Federal of State proceeding. Court may issue 502(d) order upon motion of one or more parties No requirement for pre-production privilege review, but should be agreed upon and the review process detailed in the 502(d) order Order should contain Clawback Agreements to protect against accidental waiver of privilege MRCP (2007 amendments) provisions for disclosure or discovery of electronically stored information; any agreements the parties reach for asserting claims of privilege or of protection as trialpreparation materials after production; Identification 6

7 T Preservation It starts with Zubulake Zubulake I Addressed standards for evaluation cost-shifting of electronic discovery Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) Zubulake III Applied Zubulake I cost-shifting analysis to inaccessible electronic data Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) Zubulake IV Established standards for litigation holds and the consequences for non-compliance Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) Zubulake V Established an attorney s obligations to monitor litigation holds Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) What is e-discovery Home Preservation Your Obligation The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. Zubulake IV; see also Apple Inc. v. Samsung Electronics Co., LTD., 881 F.Supp.2d 1132 (N.D.Cal. 2012) Once ESI at issue identified, preserve and protect against destruction Talk to your client counsel, employees, IT, Information Management ID key players and evidence sources Advise on duty to preserve Suspend Janitor Programs that automatically delete ESI that may be relevant Preserve and protect against alteration Determine if Forensic Data Capture is necessary Preserve Metadata (What s Metadata??) Ensure proper collection tools are utilized Remember: Attorneys have an affirmative duty to understand their client s computer systems sufficiently to know where all of the potential evidence is stored. Attorneys cannot rely upon assurances from their clients, they are supposed to personally verify that all discoverable ESI has been identified, preserved, gathered, and produced you are the one signing the pleadings. 7

8 What is e-discovery Home The Litigation Hold Must issues when a party reasonably anticipates litigation (Zubulake V) Suspend routine document retention/destruction policy Put in place litigation hold Identify what electronic storage media may contain relevant information Clearly articulate the materials that are to be preserved and communicate hold to any employees that could be involved Communicate litigation hold to third parties or outside vendors Make sure all backup media that the party is required to retain is identified and stored in a safe place The point is to separate relevant backup tapes from others Should be made in writing What is e-discovery Home The Litigation Hold Your Duty Applies to both outside and in-house counsel Must oversee compliance with the litigation hold, monitor your client s efforts to retain and produce the relevant docs/data It is not sufficient to notify all employees of the litigation hold MUST identify key players, sources, etc. Litigation hold should be periodically re-issued Should communicate directly with key-players Key players should be periodically reminded that the preservation duty is still in place Should instruct all key employees to produce electronic copies of their relevant active files What is e-discovery Home The Litigation Hold Your Duty Applies to both outside and in-house counsel Must oversee compliance with the litigation hold, monitor your client s efforts to retain and produce the relevant docs/data It is not sufficient to notify all employees of the litigation hold MUST identify key players, sources, etc. Litigation hold should be periodically re-issued Should communicate directly with key-players Key players should be periodically reminded that the preservation duty is still in place Should instruct all key employees to produce electronic copies of their relevant active files 8

9 Collection Collect what is most likely relevant or responsive ESI is narrowed for many reasons, all of which must be documented and considered for reasonability Note: there may be ESI preserved but not further searched or collected because of inaccessibility (unreasonable or disproportionate cost and effort) Forensic Collection v IT Collection Interview key witnesses to prepare keyword searches, date ranges, identities of witnesses, file type inclusions, etc. In Rule 26(f) conference reach agreement on applicable search terms and deduplication parameters. Implement plan and collect data from all applicable sources (tapes, drives, portable storage devices, networks, etc.) Ensure use of chain of custody and authenticity protocols: preserve metadata; MD5 or SHA-1 Hash authentication, labeling, and identification Meticulous record keeping and documentation of procedures and sources are required throughout the collection process. Questions to Ask. What is your Document Retention Policy? Policy? Internet Usage Policy? Litigation Hold Policy? Describe computer system (hardware, primary operating systems, major software systems, customized software) How are the computers networked and connected to other systems outside the company? How do employees access the network from remote locations? What devices do they use? (laptops, PDAs, smartphones) What type of Backup Software do you use? What type of Backup Scheme do you use? Tapes (what format: SDLT, DLT, DAT, AIT, Ultrium) Backup to disk? What type of System do you use? What Client do you use? i.e. Outlook Do you use.pst files? Archive ? How long? Do you monitor or log employees computer usage? If so, how? If 3 rd parties have access to the company s data, who are they and how do I contact them? 9

10 Processing Remove system files De-Duplication Date filter File type Keyword Searching Conceptual Searching Process to Native or Tiff for Legal Team review Majority of data to be produced? Review Native/Tiff later? ESI Culling, De-Dupe File type Date Filter Keyword Search Subset to Process Review Review for relevance and privilege, and related activity such as redaction Over 50% expenses in e-discovery process are in this phase Review in house (Summation, Concordance) or in a hosted application (Relativity, iconectnxt, FYI) Review - continued Review platform ESI alone? How will paper be handled? Search, review and Production Considerations Platform that handles both Volume capability of in-house platform Support 10

11 Analysis Identify which documents are responsive to opposing counsel s Request for Production Analytics within Review Platform Identify documents in support of your claim Prepare privilege log Production Load File, PDF Label all ESI to be produced Deliver on media (CD, DVD, tape, hard drive, portable storage devise, other) Before production, ensure that you have properly executed clawback agreements 11

12 Presentation Displaying ESI (at depositions, hearings, trials, etc.) Near-native forms to elicit further information, validate existing facts or positions, or persuade an audience Electronic Presentations Sanction/Trial Director People Technology Communication make discovery projects happen XACT DATA DISCOVERY Because you need to know 12