COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT ( ) Fall 2014

Transcription

1 COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT ( ) Professors:Mark Austrian Christopher Racich Fall 2014 Introduction The ubiquitous use of computers, the Internet and Internet-related technology has dramatically changed the litigation landscape. Sophisticated information storage locations and retrieval systems are created as the technology improves and business needs change. Information sources are likewise growing rapidly, including social media, voic , instant messaging, removable media, blogs, smart phones, etc. The courts have focused responsibility for solving the problems, and complying with the requirements for information exchange ( ediscovery ), squarely upon the shoulders of litigation and regulatory counsel. This has transformed the focus of law firm response to information requests in ways that would have been unimaginable a decade ago. This course provides new lawyers entering this increasingly competitive world with a basic understanding of the legal and practical parameters of ediscovery and electronic case management. This skills-based course examines the legal and technological issues surrounding the use of electronically stored information ( ESI ). Students will conduct mock interviews of company CIOs and brief and argue motions involving ediscovery issues. Students will also review and evaluate efforts made by professional groups (the Sedona Conference ) and the courts to create reasonable parameters allowing parties to comply with their discovery obligations and ethical responsibilities, while implementing a fundamental change in the adversary system from one of confrontation to one of cooperation. They recognize that the only way the litigation process will work is through knowledgeable counsel, management and IT personnel working together and making informed, practical decisions. Course Overview: The course will rely heavily upon the principles and commentary issued by the Sedona Conference and, where appropriate, related cases. Sedona has been the primary institute concerning ediscovery and its commentaries have been cited extensively by the courts. The commentaries are based on current problems in the litigation process and provide excellent DC01\AUSTMA\

2 background for a skills-based course. A significant amount of course time will be spent by students preparing for conferences, drafting documents and preparing and arguing motions. There will be three essential parts to each seminar class: Student Preparation: Background reading will be assigned for each class. This reading will relate to the subject matter of the lecture. : This will set the context, explain the history and application of the rules, and present for discussion key evidentiary, philosophical and fairness questions with respect to the topic for the day. Student Exercise: Students will participate in mock sessions such as interviewing the company IT professionals to learn how the information is stored, participate in meet and confer conferences and argue motions directed to specific disputes. The factual basis for these exercises will be based on a detailed hypothetical. The students will be divided into four teams for purposes of these exercises. The classes, which are described more fully on the attached syllabus, can be summarized as follows: Classes 1-3 are primarily background in nature and will examine the practical and legal parameters and the technological process of ediscovery as it has been developed through the Federal Rules and associated judicial decisions. Classes 4-6 will explore the technical and practical problems presented to clients and counsel as they prepare for and respond to ediscovery and negotiate a defensible process with opposing counsel and, if necessary, the court. These sessions will be based upon the detailed hypothetical. This will include mock sessions incorporating client interviews; identification, collection and preservation of documents; and preparation of protective orders. Classes 7-9 address specific procedures involving methods by which parties learn about the opposing party s technical infrastructure and negotiations with opposing counsel on various ediscovery issues. Classes concern problems of ediscovery following inability of counsel and the client to reach agreement including motions to compel, spoliation and sanctions, the entry of a scheduling order, including the production of ESI and risk of spoliation. Classes will focus on ethical issues and privilege. Course Materials This is a constantly changing and dynamic legal and technological arena. The basic course materials are divided into 5 parts: 1. The Syllabus and Hypothetical are contained on the WCL course website. DC01\AUSTMA\

3 2. The basic materials from Sedona and referenced cases and publications ( Pre-Class Reading ) are contained in the Course Materials section of the WCL course website 3. There are additional references in the syllabus to Resource (for the entire course or Optional Resource which refer to additional publications from Sedona. These are available at 4. If PowerPoint presentations are used during the course, they will be posted to the WCL course website. 5. There may be additional materials sent to the WCL course website if significant developments occur during the course. Student Evaluations: Students will be evaluated on several criteria and a letter grade will be assigned. Mid-Term Examination: 25% Student Exercises and Discussion: 25% The Final Examination: 50% DC01\AUSTMA\

4 Syllabus Class 1. Introduction: ESI at the Outset Course Outline Introduction to Technology for Lawyers The EDRM Model and Process The Sedona Principles Addressing Electronic Document Production, pp Review Electronic Discovery Reference Model ( EDRM ). Available at Resource (For entire Course) The Sedona Conference Glossary: Commonly Used Terms for E-Discovery and Digital Information Management. Resources on Reserve Michael R. Arkfeld, "The Law Student's Guide to Electronic Discovery and Evidence" ( ). Class 2. The Rules of the Road Sedona Principe #1 Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to the litigation Review of the Federal Rules and the Litigation Process Involving ESI Introduction to the Class Hypothetical The Sedona Principles Addressing Electronic Document Production, pp Allman, The Civil Rules Package Federal Rules of Civil Procedure 11, 16, 26, 34, 37 and 45 Class 3. ESI from the Client to the Courtroom Managing and Processing Information Predictive Coding DC01\AUSTMA\

5 Basic Processing Steps (5 pages) Austrian and Krolewski, Basic Steps in E-Discovery Preparation: Creating the Team and Knowing When to Pull the Trigger ; (2 pages) Austrian and Krolewski, Knowing Where Stuff is and Planning to Retain it ; (2 pages) Austrian and Krolewski, Legal Hold Policies Where Information is Within the Company, in a Cloud or On a Social Media Site. (2 pages) Da Silva Moore v. Publicis Group, No. 11 Civ. 1279, 2012 U.S. Dist. LEXIS (S.D.N.Y. Feb. 24, 2012) Optional Resources: Available on Course Website Ball, Discovery of The Path to Production Ball, Beyond Data About Data: The Litigator's Guide to Metadata Ball, Surefire Steps to Splendid Search Ball, A Lawyers Guide to the Language of Data Storage and Networking Ball, Litigators Guide to Databases Class 4. Preliminary Case Assessment/Getting You and Your Client Ready ABA Model Rule 1.1 of Professional Conduct A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Sedona Principle # 6 The producing party should determine the best and most reasonable way to locate and produce relevant information in discovery. Meeting with Your Client/Understanding the Systems, Costs Record Retention Policies and Plans Student Exercise Before Class each student will prepare three key questions, based upon the class hypothetical to pose and discuss with company inside counsel and the Head of the IT Department. Students will questions to Professors by noon on the day of the class Team A: Document Retention Policies Team B: Computer Backup and Deletion Systems Team C: Servers Team D: Network Servers DC01\AUSTMA\

6 Members of Teams A and B will conduct an interview in class. The Sedona Principles Addressing Electronic Document Production, pp The Sedona Conference "Jumpstart Outline", pp. 1-6 The Sedona Conference Commentary on Management: Guidelines for the Selection of Retention Policy, Class 5. The Case Begins: The Duty to Identify and Preserve Sedona Principle # 5 The obligation to preserve electronically stores information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stores information. Student Exercise (First Hour) Each student will prepare a 1-2 page memorandum to your client, Orange, discussing the purpose and objective for a litigation hold. A sample of a litigation hold letter is in the materials. A copy should be sent to Professors Austrian and Racich the evening before the class. Members of Team C and D, representing Orange will meet during class with Professors Austrian and Racich to explain and answers questions about the litigation hold (Second Hour) Trigger Dates Litigation Holds: Policies and Procedures BYOD Programs The Sedona Principles Addressing Electronic Document Production, The Sedona Conference Commentary on Legal Holds, the Trigger, the Process ( ) Legal Hold Illustration Class 6. Preserving and Collecting Potentially Relevant Information Sedona Principle #1 (Proportionality) The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation. Sedona Principle #11 A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to DC01\AUSTMA\

7 contain relevant information. The Emerging Concept of Proportionality Finding the ESI FRCP 34 The Sedona Conference, Commentary on Proportionality in Electronic Discovery. ( ) The Sedona Conference Best Practices Commentary on Search & Retrieval Methods ( ). Optional Resource The Sedona Conference Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible. Available at Class 7. Discovery of ESI Sedona Principle # 4 Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production. Sedona Principle # 12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case. Document production Form of Production Cost Shifting Possession, Custody or Control (outsourced databases) Meet and Confer (Rule 26(f) Student Exercise None The Sedona Principles Addressing Electronic Document Production, pp D Onofrio v. SFX Sports Group, Inc. 247 F.R.D. (D.D.C. 2008) Zubulake v. Warburg, 217 F.R.D. 309 (2003) DC01\AUSTMA\

8 FRCP 34, 37 (review) Class 8. Pre-Trial Meetings and Negotiations Sedona Principal # 3 Parties shall confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party s rights and responsibilities. Rule 26(a) Disclosure Rule 26(f) Conference Student Exercise All Teams will prepare for a meeting with adversary counsel in a meet and confer session to cover the areas specified in Rule 26(f).Teams A and C will represent the plaintiffs and Teams B and D will represent Orange. The Sedona Conference Cooperation Proclamation (1-27) Checklist for Meet & Confer (D.N.D Cal.) Class 9: Pre-Trial Negotiations (cont d) and Discovery/Rule 30(b)(6) Depositions Rule 30(b)(6) Deposition Preparation Student Exercise All teams will conduct the Rule 26(f) conference for which they prepared during the previous class. Following the sessions, in class all teams will prepare a list of agreements and disagreements that will have to be decided by the court. FRCP 30 DC01\AUSTMA\

9 Class 10. Compelling the Production of ESI/Proportionality/Reasonably Accessible Sedona Principles # The requesting party has the burden on a motion to compel to show that the responding party s steps to preserve and produce relevant electronically stored information were inadequate. 8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities. Lecture (1 st Hour) Motion Practice in EDiscovery Reasonably Accessible Mid-Term Examination (2 nd Hour): A list of Issues derived from the class hypothetical will be provided to each student as well as pairings for oral argument. Members of Team A and B will be assigned to draft a motion to compel on behalf of plaintiffs, and members of Team C and D will draft a motion for a protective order on behalf of Orange. Students will continue working on the motions after class and send their motion papers (by ) to the Professors before Class 11. The Professors will review the pre-hearing memoranda and hear argument limited to 6 minutes per student at Class 11. Pre-Class/Class Reading The Sedona Principles Addressing Electronic Document Production, pp McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); McPeek II, 212 F.R.D. 33 (D.D.C. 2003) Victor Stanley v. Creative Pipe, Inc. 250 F.R.D. 251 (D. Md. 2008) FRCP 26(b) and (c) Optional Resource The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality & Public Access in Civil Cases (March 2007). Available at Class 11. Class Oral Arguments The Professors will review the pre-hearing memoranda and hear argument limited to 6 minutes per student. All of the students will come to the class. Each student will present their arguments to the Professors. Students not making arguments will wait outside of the classroom. DC01\AUSTMA\

10 Class 12. Spoliation and Sanctions Sedona Principles # 14 Sanctions, including spoliation findings, should be considered by the court on if it finds that there was a clear duty to preserve a culpable failure to preserve and product relevant electronically stored information, and a reasonable probability that the loss of evidence has materially prejudiced the adverse party. Structure of Deleted Information and Computer Forensics Sanctioning a Party and Opposing Counsel The Sedona Principles Addressing Electronic Document Production, pp Rule 37 (e) Pension Committee of the University of Montreal v. Banc of America, 05 Civ (S.D.N.Y.) 1/11/2010 (1-89) Qualcomm Inc. v. Broadcom Corp., 2008 WL (S.D. Cal. 2008); Order of April 2, 2010 Class 13. Ethical Issues Inadvertent Disclosures (including metadata) Duty of Candor, Competence and Fairness Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2006). ABA Model Rules of Professional Conduct 1.1,1.16, 3.3, 3.4(a), & 5.1 Class 14. Protecting or Attacking Privilege Sedona Principal # 10 A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information. Waiver Agreements Between Counsel Preparation of Privilege Log DC01\AUSTMA\

11 Class Exercise Class will discuss the various provisions that should be part of any protective order concerning the inadvertent disclosure of privileged documents. (Class 14) The Sedona Principles Addressing Electronic Document Production, pp Sedona, The Protective Order Toolkit: Protecting Privilege with Federal Rule of Evidence 502, pp Hopson v. The Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md ) Federal Rule of Evidence 502 Optional Resource Facciola & Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation, 4 Fed. Ct. L. Rev. 19 (2010) DC01\AUSTMA\