Legal Arguments & Response Strategies for E-Discovery

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1 Legal Arguments & Response Strategies for E-Discovery The tools to craft strategic discovery requests & mitigate the risks and burdens of production.

2 Discussion Outline Part I Strategies for Requesting Electronic Documents Leveraging initial disclosure requirements and ensuring they are followed Seizing discovery conferences as an opportunity to formulate discovery parameters Framing interrogatories and arranging depositions Issuing Rule 34 document requests and onsite inspections Getting the court involved circumstances necessitating judicial intervention 2

3 Leveraging initial disclosure requirements and ensuring they are followed FRCP 26(a) Required Initial Disclosures (1) a party must, without awaiting a discovery request, provide to other parties: (B) a copy of, or a description by category and location of, data compilations that the disclosing party may use to support its claims or defenses identifying the subjects of the information. Proposed FRCP Amendments will clarify this language by requiring parties to provide for initial disclosure of all electronically stored information that the disclosing party may use to support its claims or defenses. FRCP 26(a)(1)(B). Ensure your opponent meets their initial disclosure requirements & use the information you obtain to your client s advantage. 3

4 Seizing discovery conferences as an opportunity to formulate discovery parameters Even if initial disclosure rules are generally followed, they should not be relied upon as an assurance that no electronic evidence exists. The opposing party may not be aware that some of their data is recoverable or discoverable. Discovery conferences provide a chance to ensure the producing party will consider all relevant files and search the storage locations that contain them. New FRCP rules require, inter alia, parties to discuss issues pertaining to: Disclosure of discovery of electronically-stored information How such information will be produced Preservation of privilege Steps to avoid spoliation 4

5 Seizing discovery conferences as an opportunity to formulate discovery parameters Negotiate: Pre-production culling and search terms Preservation of evidence Review formats Cost allocation How you will handle anticipated evidentiary disputes 5

6 Seizing discovery conferences as an opportunity to formulate discovery parameters Rule 26(f) conference: Parties shall attempt to agree on -Disclosure and production of electronic evidence Points to consider: Necessity of restoration of deleted digital information If scope should include backup or historic legacy data Media, format, and procedures for production 6

7 Seizing discovery conferences as an opportunity to formulate discovery parameters Rule 16 Conference Agenda Proposed Rule 16 gives the court leave to address disclosure of electronic evidence in the Rule 16 scheduling order. Use the Rule 16 Conference as an opportunity to: Take control of e-discovery early Educate the court and opposing counsel Define scope/methods of review & production Reach agreements stipulating that inadvertent disclosure of privileged info does not waive privilege Stipulate to appointment of a Third Party Neutral Expert 7

8 Framing interrogatories and arranging depositions Objectives Obtain clear understanding of: Back-up procedures Computer system configuration Data-retention policies and procedures 8

9 Framing interrogatories and arranging depositions Rule 30(b)(6) Depositions Number, types, and locations of computers currently in use/no longer in use; Past and present operating system and application software; File-naming and location-saving conventions; Disk or tape labeling conventions; Backup and archival disk or tape inventories or schedules; Most likely locations of records relevant to the subject matter of the action; Backup rotation schedules and archiving procedures, including any backup programs in use at any relevant time; Source: Adapted from Computer-Based Discovery in Federal Civil Litigation By Kenneth J. Withers,

10 Framing interrogatories and arranging depositions Rule 30(b)(6) Depositions (cont.) Electronic records management policies and procedures; Corporate policies regarding employee use of company computers; Identities of all current and former personnel who had access to network administration, backup, archiving, or other system operations; Backup rotation schedules and archiving procedures, including any backup programs in use at any relevant time; Electronic records management policies and procedures; Corporate policies regarding employee use of company computers; Identities of all current and former personnel who had access to network administration, backup, archiving, or other system operations. Source: Adapted from Computer-Based Discovery in Federal Civil Litigation By Kenneth J. Withers

11 Issuing Rule 34 document requests and onsite inspections Proposed Fed. R. Civ. P. 34: Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes The amendment leaves no doubt that electronic evidence is subject to production. Scope: Before framing your request, consider post-production review burdens of requesting too much data against the limitations of missing potentially relevant data Framing your request: Craft your request such that it demonstrates the necessity of obtaining the documents you are requesting while avoiding shifting costs of such production back to your client 11

12 Issuing Rule 34 document requests and onsite inspections Define "Document" as: All materials within the full scope of Rule 34 of the FRCP Including, but not limited to: Originals and all non-identical copies Computer files and programs (i.e. and attachments, Word documents, Excel spreadsheets, PowerPoints, etc.) Also, include metadata in definition of document Caveat: be careful what you ask for opposing counsel may return the favor. 12

13 Issuing Rule 34 document requests and onsite inspections Consider the Potential Value of Forensic Evidence. Forensic analysis can establish critical evidence not ascertainable/evident in typical post-production review. Computer forensics experts can be used to extract that information and even retrieve deleted documents while taking necessary to preserve evidentiary integrity. Broad language pertaining to discovery of electronically stored information in draft Fed. R. Civ. P. 34 & state equivalents can be leveraged to compel forensics investigations. 13

14 Issuing Rule 34 document requests and onsite inspections Timing, ordinarily: Discovery of evidence not subject to initial disclosure requirements may not ordinarily be sought before parties have met and conferred as per Rule 26(f). - Fed. R. Civ. P. 26(d), 34(b). Expedited Discovery: In some instances the court may permit expedited discovery before the Rule 26 conference by order or agreement of the parties. - Fed. R. Civ. P. 26(d). Antioch Co. v. Scrapbook Borders, Inc. 210 F.R.D. 645 (D.Minn. 2002). QZO, Inc. v. Moyer 594 S.E.2d 541, 544 (S.C.App. 2004). Yanaki v. Iomed, Inc. 319 F.Supp.2d 1261 (D.Utah 2004), aff d, 415 F.3d 1204 ((10th Cir. 2005). Consider seeking an order for expedited discovery where critical evidence may be at risk for loss or destruction. 14

15 Issuing Rule 34 document requests and onsite inspections What to do with the documents and data you obtain to preserve integrity for trial: Maintain a solid chain of evidence to ensure data is not altered during inspection Verify that copies are complete 15

16 Getting the court involved -- circumstances necessitating judicial intervention Court intervention may be sought to: Enforce preliminary disclosure requirements Gain access to the opposing party s computer systems Appoint a computer forensic expert to retrieve data and review it Direct the opposing party to conduct self-search of back-up tapes Seek adverse inference instructions and sanctions when the other party fails to preserve or produce. Example: Morgan Stanley Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct. Mar. 1, 2005). 16

17 Part II: Strategies for Responding to Electronic Document Requests Responding to "any and all" electronic discovery requests Demonstrating proportionality how to show benefit and burden Production considerations when to consider mirror imaging, negotiating keyword searches and production format options Using data sampling to avoid fishing expeditions Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege 17

18 Strategies for Responding to Electronic Document Requests: Responding to "any and all" electronic discovery requests As with any evidence, e-evidence is subject to all the typical privilege protection and discovery objections. Before responding or objecting to any request or order, assess whether handing over certain information or producing data in certain formats may lead to inadvertent exposure of privileged and confidential data. Seek to limit the scope of document requests by negotiation or objection. If the parameters of the discovery requests unclear, seek a court order defining your production obligations. 18

19 Strategies for Responding to Electronic Document Requests: Demonstrating proportionality how to show benefit and burden Defeating discovery requests usually requires particularized showing of excessive burden and cost. Zubulake s Revised Cost Allocation Test Extent to which the request is specifically tailored Availability of information from other sources Total cost of production compared to amount in controversy Total cost of production compared to resources available to each party Relative ability of each party to control costs and incentive of each party to do so Importance of the issue at stake in the litigation Relative benefits to the parties in obtaining the information Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003); See also, Rowe Entertainment, Inc. v. The William Morris Agency, 2002 WL (S.D.N.Y. May 9, 2002). 19

20 Strategies for Responding to Electronic Document Requests: Production considerations -- when to consider mirror imaging, negotiating keyword searches, production format options While proposed Fed. R. Civ. P. 34(b) allows requesting parties to specify production format, producing parties may seek judicial intervention or negotiate for alternate format options. Considerations for producing parties include: How redacted files will be produced to avoid handing over confidential information How groups of related files such as familial strings and attachments containing relevant documents will be treated in the event that some of the related documents contain privileged information or work product. Format of original documents Cost Mirror Imaging A complete mirror image may not be necessary; harvesting may suffice. Keyword Searches & Initial File Culling Technology can greatly reduce your production burden. 20

21 Strategies for Responding to Electronic Document Requests: Using data sampling to avoid fishing expeditions Data Sampling What: searching a small number of hard drives, servers or backup tapes as a method of determining whether relevant evidence exists. Why: use to show lack of probable responsiveness of opposing parties search parameters Data sampling can be a useful tool to refute the necessity and appropriateness of the requesting party s discovery request. 21

22 Strategies for Responding to Electronic Document Requests: Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege Spoliation Initial Considerations: Suspend Client s Automated Document Destruction See, e.g., Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL (Fla. Cir. Ct. Mar. 1, 2005). Notify Third Parties of Preservation Duty Discussions with Client IT Manager and E-Discovery Expert Secondary Considerations: Preservation Orders Stipulations with Opponent & Protective Orders Addressing Scope Appointment of Neutral Expert See, e.g., Medtronic Sofamor Danek, Inc. v. Michelson, 2003 WL (W.D.Tenn. May 13, 2003). 22

23 Strategies for Responding to Electronic Document Requests: Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege The voluminous amounts of information exchanged between parties can lead to inadvertent disclosure of privileged information. There are, however, some things you can do to mitigate that risk: 1. Prior to production, seek to come to an agreement with opposing counsel that privileged documents will be returned to you, that any copies of or notes pertaining to those documents will be destroyed, and that an inadvertent disclosure will not constitute waiver of privilege 2. Negotiate how documents within families of privileged documents will be handled. 3. Use key word searches to segregate potentially privileged files and alert reviewers that some documents may be privileged. 4. Create an action plan outlining the steps you will take in the event a privileged document is unintentionally produced. 23

24 Strategies for Responding to Electronic Document Requests: Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege The voluminous amounts of information exchanged between parties can lead to inadvertent disclosure of privileged information. There are, however, some things you can do to mitigate that risk: 1. Prior to production, seek to come to an agreement with opposing counsel that privileged documents will be returned to you, that any copies of or notes pertaining to those documents will be destroyed, and that an inadvertent disclosure will not constitute waiver of privilege 2. Negotiate how documents within families of privileged documents will be handled. 3. Use key word searches to segregate potentially privileged files and alert reviewers that some documents may be privileged. 4. Create an action plan outlining the steps you will take in the event a privileged document is unintentionally produced. 24

25 Strategies for Responding to Electronic Document Requests: Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege The voluminous amounts of information exchanged between parties can lead to inadvertent disclosure of privileged information. There are, however, some things you can do to mitigate that risk: 1. Prior to production, seek to come to an agreement with opposing counsel that privileged documents will be returned to you, that any copies of or notes pertaining to those documents will be destroyed, and that an inadvertent disclosure will not constitute waiver of privilege 2. Negotiate how documents within families of privileged documents will be handled. 3. Use key word searches to segregate potentially privileged files and alert reviewers that some documents may be privileged. 4. Create an action plan outlining the steps you will take in the event a privileged document is unintentionally produced. 25

26 Strategies for Responding to Electronic Document Requests: Avoiding e-discovery landmines: spoliation and inadvertent waiver of privilege The voluminous amounts of information exchanged between parties can lead to inadvertent disclosure of privileged information. There are, however, some things you can do to mitigate that risk: 1. Prior to production, seek to come to an agreement with opposing counsel that privileged documents will be returned to you, that any copies of or notes pertaining to those documents will be destroyed, and that an inadvertent disclosure will not constitute waiver of privilege 2. Negotiate how documents within families of privileged documents will be handled. 3. Use key word searches to segregate potentially privileged files and alert reviewers that some documents may be privileged. 4. Create an action plan outlining the steps you will take in the event a privileged document is unintentionally produced. 26

27 Legal Arguments & Response Strategies for E-Discovery Questions? Rhea Frederick Kroll Ontrack (952) (800) Christopher Wall Kroll Ontrack (703) (800)