E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011

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1 E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE Ana Maria Martinez April 14, 2011

2 This presentation does not present the views of the U.S. Department of Justice. This presentation is not legal advice. Your counsel should always be consulted. 2

3 Possible consequences of failure to preserve electronic evidence. Civil litigation: Court ordered sanctions from hundreds to millions of dollars. Court instruction to the jury that the lost evidence would have hurt your case possibly resulting in a multi-million dollar jury verdict against your company. Criminal prosecution: Obstruction of justice. 3

4 Increased importance Electronic evidence & obligation to preserve are not new Increased attention in recent years: Statutes & regulations Court sanctions December 2006 Amendments to Federal Rules of Civil Procedure explicitly addressing Electronically Stored Information 4

5 Legal Background Federal vs. State Government Federal vs. State Courts Civil vs. Criminal Cases Statutes vs. Regulations 5

6 Statutes & Regulations They may require retention or disposition of records for certain businesses. They may be different for different businesses. They may be state or federal. They may change. Consult a lawyer. 6

7 Obligation to preserve evidence relevant to anticipated or ongoing litigation Criminal Civil 7

8 Criminal Alleged wrongdoer Obstruction of justice Victim or third party Authenticity Access trail Computer forensics Law enforcement 8

9 Civil Party to a lawsuit Discovery Requests for Production of Documents/ESI Depositions IT personnel Third party Subpoenas 9

10 Civil: State or Federal State Discovery requests for ESI Court orders Preservation Sanctions Lawsuits against non-parties for not preserving evidence. 10

11 Civil: State or Federal Federal As of December 2006 Rules of Procedure explicitly address Electronically Stored Information (ESI). E-Discovery requests & disputes are common. Many courts have ordered sanctions for failure to preserve. 11

12 2006 Federal Changes Before December 2006: Rules previously said parties had to disclose documents to each other Documents often were defined by parties as including electronic documents After December 2006: Rules explicitly require production of Electronically Stored Information (ESI) Referred to as E-Discovery 12

13 Highlights of the New Rules From the start of a case, the parties are required to meet & discuss: the discovery of electronically stored information, including the form or forms in which it should be produced. A party need not provide discovery of electronically stored information from sources that the party identifies are not reasonably accessible because of undue burden or cost. 13

14 Safe harbor Highlights 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. 14

15 Highlights Routine operation means the ways in which information systems are generally designed, programmed, and implemented to meet the party s technical and business needs. This may include alteration and overwriting. Business needs may include complying with any applicable statutes and regulations regarding records retention and IT security. 15

16 Highlights Good faith A party needs to modify or suspend certain features of that routine operation to prevent a loss of information, if that information is subject to a preservation obligation. 16

17 Practice When litigation is reasonably anticipated or has started, businesses and their IT personnel need to give their lawyer a good overview of: where all the relevant ESI may be volume current disposition policies & practices what ESI is not reasonably accessible 17

18 Practice ESI locations: All system drives Shared drives Laptops Other devices s and archives Logs Back up tapes Storage media Contractors 18

19 Preservation: Practice Triggers before litigation Consult with lawyers Issue Litigation Holds Notice requiring preservation Include IT Include a company employee who keeps all litigation holds -- past & present. Provide adequate guidance regarding preservation requirements What to look for & where to look 19

20 Preservation: Practice Critical step: Review records retention policies & routine destruction practices. Critical Step: STOP routine disposition of possibly relevant ESI & hard copy. Back up tapes Video tapes Critical Step: Identify key departments & key employees who may have relevant records. 20

21 Preservation: Practice Assign contact persons Ensure all distribution lists are accurate Require reports of action taken Assemble & secure evidence for lawyers Issue litigation holds reminders periodically Departing employees: Supervisory review of ESI Drives, laptops, devices, 21

22 Practice Searching for information: Map it Locations & volume estimates Identify inaccessible ESI & estimate cost of making it accessible Narrow it Guide it Do it efficiently Key word searches & other methods 22

23 Production: Practice Native format may be requested May include metadata Have to provide in a form reasonably usable by opposing side May have to provide technical assistance Volume Privileges Claw back agreements 23

24 Sanctions U.S. v. Philip Morris (2004) $2.75 million Zubulake v. UBS (2005) Jury instruction that lost evidence would have hurt employer Jury gave $29 million award to employee Qualcomm v. Broadcom (2008) $8.5 million 24

25 Resources Duke Law Journal 2010 Symposium Issue Sanctions for E-Discovery Violations Publications 2010 Year End Electronic Discovery Update Publications U.S. Attorney s Bulletin, May

26 Resources Non-profit think-tank that develops guidance for complex litigation, including e-discovery Electronic Discovery Reference Model 26