Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age

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1 Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age

2 Panel Members Judge Ronald L. Buch, Moderator Panelists The Honorable Paul W. Grimm U.S. District Court for the District of Maryland Tara S. Emory Driven, Inc. Mark L. Hulse IRS Office of Chief Counsel Julia M. Kazaks Skadden, Arps, Slate, Meagher & Flom LLP 2

3 Overview A word about Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (2014). Growth of Electronically Stored Information or ESI The number of custodians holding ESI Categories of ESI 3

4 Relevant Cases Zubulake v. UBS Warburg opinions by SDNY Judge ShiraScheindlin setting forth ground rules for preserving, searching, and producing ESI Whether and when to shift costs of production to the requesting party Duty to preserve data arises on a reasonable expectation of litigation Scope of information to be preserved When is information accessible such that it should be produced? Lawyers not just the parties have an obligation to oversee the compliance process: not enough to advise that a hold be put in place 4

5 New Developments Post-Zubulake developments Bar associations are developing best practices and standards for counsel s handling of ESI discovery Courts are creating model e-discovery orders Principles are being applied to social media and FOIA actions Standard for showing prejudice is being fleshed out Confidentiality of third parties is surfacing More questions about the admissibility of ESI are arising Predictive coding being considered for privilege review Clients are bringing malpractice actions The proportionality principle reigns 5

6 Managing ESI ESI holds and preventing lost or deleted ESI Who searches for ESI? Once found, how is ESI searched? Keyword or Boolean method Predictive Coding 6

7 Predictive Coding What is Predictive Coding? How does Predictive Coding work? What are the traits of Predictive Coding? 7

8 Predictive Coding Workflow 8

9 Predictive Coding - Precision and Recall 9

10 Acceptance of Predictive Coding Is Predictive Coding approved by courts? Another word about Dynamo Holdings LP v. Commissioner. Does using Predictive Coding satisfy the obligation to conduct a reasonable search for documents? What are some of the advantages and disadvantages of Predictive Coding? Retrieving ESI, what is the cost? 10

11 Proportional Discovery What is Proportional Discovery? Proposed Amendment to FRCP Rule 26(b) establishes that discovery must be: proportional to the needs of the case considering the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. 11

12 Proposed Amendments Proposed Amendment to Rule 16 provides that a scheduling order may also address the preservation of ESI Proposed Amendment to Rule 26 states that the discovery plan must include the parties views and proposals on the preservation of ESI 12

13 Proposed Amendments Proposed Amendment to Rule 33 would change the limit of interrogatories from 25 to 15 Proposed Amendment to Rule 36 would cap admissions to 25 There is no cap on the production of documents, but Proposed Amendment to Rule 34 will provide that grounds for objections must be specifically stated 13

14 Proposed Amendments Proposed Amendment to Rule 37(e) (safe harbor) Ensures litigants who make reasonable efforts to preserve ESI will not be sanctioned Proposed Amendment to Rule 37(e)(1) and failure to preserve Discoverable Information Allows additional discovery and possible sanctions for failing to preserve ESI 14

15 Tax Court Rules Tax Court Rules and Proportional Discovery Pursuant to Tax Court Rule 1(d): The Court s Rules shall be construed to secure the just, speedy, and inexpensive determination of every case. 15

16 Tax Court Rules Under TC Rule 33(b) the signing of a pleading constitutes that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Likewise, under TC Rule 50(b) the signing of a Motion has the same effect as a signature under TC Rule 33(b) This includes discovery motions 16

17 Tax Court Rules The requirement to use informal discovery and comply with Branertonprior to using formal discovery (TC Rule 70(a)(1)) How should a party address ESI? TC Rule 70(c) allows the Court to limit discovery if the discovery is unreasonable cumulative or is available form another source that is more convenient or less expensive, or if the discovery is unduly burdensome taking into account the needs of the case and the parties resources 17

18 Tax Court Rules TC Rule 71 limits interrogatories to 25 TC Rule 72 (Production of Documents) applies to ESI: Permits a party to request ESI in a specific form If the request does not specify the form for producing ESI, it should be produced in the form it is usually maintained ESI need not be produced in more than one form 18

19 Other Considerations Other Considerations Structured data; fielded data Potentially more efficient source of evidence than unstructured data Accessible Layered and dynamic Challenges Implications for proportionality, transparency and cooperation 19

20 Other Considerations Other Considerations Court Involvement When should the Court be asked to intervene in disagreements concerning ESI requests? Should the parties participate in process of selecting Keyword, Boolean or Predictive Coding? 20