E-Discovery for Small Cases

Transcription

1 E-Discovery for Small Cases The Missouri Bar MoBar CLE lex Port 2014 October 2-3, 2014 Brett Burney Burney Consultants LLC Table of Contents Why Are We Even Talking About This?... 2 What Does The Little "e" Mean?... 3 How Does E- Discovery Differ From Traditional Methods Of Discovery?... 4 Why Does E- Discovery Have To Be So Expensive?... 5 The Electronic Discovery Reference Model... 6 Collecting And Preserving ESI... 7 Processing and Reviewing ESI... 8 Why Is Search So Hard In E- Discovery? Choosing An ESI Vendor Short Glossary of E- Discovery Related Terms Ethics In E- Discovery Searching for Ethics Preservation and Spoliation Protecting Privilege Agree to Disagree Cooperation in E- Discovery Q--1 1

2 Why Are We Even Talking About This? Our world is digital. While we still cherish paper in the legal profession, all documents today are created electronically (e.g. e- mail, Microsoft Word, WordPerfect, etc.). The Federal Rules of Civil Procedure were amended December 1, 2006 to officially recognize that "electronically stored information" (ESI) is equivalent to information stored in paper form. The FRCP amendments dictated changes in how discovery is conducted in civil litigation regarding discussion about how ESI is to be collected, preserved, and produced. Q--2 2

3 What Does The Little "e" Mean? While the term "e-discovery" sounds intimidating, it is simply the application of traditional discovery practices applied to the contemporary digital world. Black's Law Dictionary defines discovery as: "a pre-trial device that can be used by one party to obtain facts and information about the case from the other party in order to assist the party's preparation for trial." E-discovery does nothing to change this definition, but the explosion of digital data does require the legal world to employ new and inventive strategies to achieve the same goal. Rule 1 of the Federal Rules of Civil Procedure (FRCP) states that all of the rules are to be "construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." In order to secure the just, speedy, and inexpensive determination of law, it is imperative to understand the intricacies of e- discovery so that we can logically apply cost containment where appropriate. Even the bench has recognized the importance of raising FRCP 1 to reign in the runaway costs involved with e-discovery. Magistrate Judge Andrew Peck of the Southern District of New York wrote in an October 2011 article for Law.com that in my opinion, computer assisted coding should be used in those cases where it will help secure the just, speedy, and inexpensive (Fed. R. Civ. 1) determination of cases in our e-discovery world 1. It's obvious that e-discovery is not that different from the traditional practices of discovery that have evolved in this country's adversarial system of law. The little "e" however, throws a wrench into the whole scheme of things and causes us to reconsider some of the outdated approaches to discovery that existed before technology consumed our lives. 1 Search, Forward, Law.com, October 1, 2011 ( Q--3 3

4 How Does E-Discovery Differ From Traditional Methods Of Discovery? One of the biggest differences between electronic discovery and traditional paper discovery is the immense volume we see with electronically stored information. While it takes several store rooms, many boxes, and loads of money to store millions of documents in paper form, those same documents can easily fit on a computer hard drive the size of a paperback novel. And because it's so easy (and cheap) to store information in digital form, people tend to keep so much more than ever before. This means there will be that much more information to cull through during the discovery phase of litigation. On the other hand, electronic discovery is really just discovery with an "e" in front of it. The addition of the letter "e" does not significantly change the traditional rules of discovery (although it has AMENDED the federal and state rules), it just requires a different strategy to play the game. The biggest difference that many people point out is that dealing with electronically stored information requires a level of collaboration between litigating parties that is unprecedented. Lawyers are taught from the first day of law school to be adversarial in nature. The thought of collaborating and cooperating with an opposing party is very unsettling to many lawyers, even distasteful to some. It is becoming apparent, however, that collaborating on logistical issues such as the production of electronically stored information is the only way that the legal profession is going to successfully embrace electronic discovery. For more information on the need to seek cooperation on e-discovery issues, please see the The Sedona Conference Cooperation Proclamation ( Q--4 4

5 Why Does E-Discovery Have To Be So Expensive? E-discovery is expensive. There's really no way around it. The process of collecting, preserving, processing, reviewing, and producing electronic evidence will usually require a heftier investment than a discovery project that solely involves paper. The biggest factor for expense is simply because there is so much more information to collect, preserve, process, review and produce. Perhaps even more important, ignorance of e-discovery can be even more costly. While the e-discovery market may seem like a goldmine for many vendors today, many parties and legal professionals can save money by simply educating themselves on how to practically and efficiently handle e-discovery projects. It may not always be necessary to request extensive records and complete inboxes from the opposing party, but this requires both parties to sit down and frankly discuss what information is going to be relevant and discoverable. This is why we see the so-called "meet and confer" requirement now in the FRCP the Rules Committee recognized the importance of requiring both parties to thoroughly discuss the parameters of electronic discovery in order to streamline costs. The 2012 RAND study entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery determined that 73% of every dollar spent on e-discovery goes to data review costs 2. The RAND study offered three recommendations to address the complaints of excessive costs and uncertainty involved in today s e-discovery projects: Adopt computer categorization to reduce the costs of review in large-scale e- discovery efforts Improve tracking of costs of production and preservation Bring certainty to legal authority concerning preservation 2 Nicholas M. Pace & Laura Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, RAND Institute for Civil Justice, 2012 ( Q--5 5

6 The Electronic Discovery Reference Model In 2005, right when e-discovery first stared becoming a thorn in the side of many litigators, the Electronic Discovery Reference Model was developed to provide a visual construct for the "workflow" involved with e-discovery in litigation matters. The diagram serves as a cornerstone today for any conversation regarding e-discovery. Each box represents a specific "phase" in e-discovery that carries certain duties and responsibilities. But also notice the yellow and green triangles in the background they represent the concept that you will start off with a much larger volume of documents and information in the beginning which is whittled down to a smaller sub-set through the entire process. Again, this is no different than what happens in traditional discovery. In addition, take note of the multiple arrows that point back and forth among the boxes. The arrows are attempting to indicate that this entire process is iterative i.e. that it's not a one-time process from start to finish. In many cases, there will be multiple collection phases, and multiple production phases. You may need to repeat certain steps in the EDRM depending upon the data collected or the demands of opposing counsel. Q--6 6

7 Collecting And Preserving ESI When it comes to electronic discovery, the best defense is a good offense. One of the most expensive phases in an e-discovery project is the collection of and electronic documents. It is important right off the bat to start learning where your client stores their and electronic documents. For example, if they are a company it's a safe assumption that they have an server that handles the distribution of company , although this is not always the case. Collecting electronic evidence for the purpose of producing it to the other side requires the input of both legal professionals (i.e. what is relevant from a legal standpoint) and technology professionals (i.e. where is stored and how can it be exported off the system). Preservation of electronic data doesn't always mean it must be exported off a computer server. Often, employees or clients will store information on the desktop and laptop computers that they use every day. It is not recommended that these individuals preserve the or documents themselves because there is a lot of hidden information contained in computer files (often called "metadata") that will be fatally disturbed if the preservation is not done in a forensically sound manner. This is where computer forensics professionals are necessary. Such professionals can make a bit-by-bit copy of a computer's hard drive (usually called an "image") that will preserve ALL of the information contained in that hard drive without making any changes to the underlying data. This practice is common and is admissible in court provided the hard drive image is made by an experienced forensics professional. Q--7 7

8 A computer forensics professional uses an exhaustive approach to recover, convert, review, and present the findings of any forensics investigation. They investigate media types such as PCs, laptops, cell phones, digital cameras, servers, tape backups, thumb drives, GPS, and PDAs. They have the ability to track computer usage history, retrieve deleted s, hidden files, and documents. They can even create a timeline of events, determine malicious intent and violation of agreements. The most important services that a computer forensics professional can do is provide expert testimony. The main lesson to take away in the preservation and collection phase is that ignorance can be expensive. You will be much better served in being proactive on talking with your clients about where they store electronic information and having a better idea of their individual practices. Indeed, the Committee Notes to the FRCP amendments recognize the fact that attorneys today must have better knowledge of where and how their clients stored information. Processing and Reviewing ESI The next phase of an e-discovery project involves the processing and review of the electronic evidence that has been collected. Obviously, the more electronic data that you collect, the more you will have to review. If you are only interested in several pages of documents or s, the review phase will not be too burdensome. Reviewing several million s and documents, however, often requires a small army to successfully pore over the pool of data. Narrowing your discovery request by "filters" such as date, specific custodians, file types, files sizes, etc., will greatly help to streamline the entire process. Otherwise, you may be facing an overwhelming mountain of data to review in a limited time. Reviewing documents for litigation typically means you will be meticulously scrutinizing each document and message. If you stay in the paper world, this means you better have a big desk, or reserve a war room for all the boxes and binders. In the e- discovery world, there are several computer applications that will graciously help you sift through a mountain of electronic documents, giving you search tools and allowing you to organize the information as necessary. Q--8 8

9 Standalone litigation support applications such as Summation and Concordance provide a database for organizing and viewing documents. If you have a much larger set of e- mail and electronic documents to review, you may consider hiring an e-discovery vendor to process, upload, and host the data for you. Lastly, you may consider using a cloud-based service provider such as Lexbe, Nextpoint or Logikcull to host your data. Q--9 9

10 Why Is Search So Hard In E-Discovery? The perfect search tool is the elusive holy grail of e-discovery. The goal is to find the smoking needle in a digital haystack by using a targeted term or phrase. After all, we have the awesome power of Google and Yahoo! that can search the entire Internet surely we have the technology to successfully find one relevant document in a relatively small group of data. But for some reason, searching is not easy. We can't always find what we need. Many times we're frustrated that a simple search can't retrieve a document that we know exists in the database. And to make matters worse, lawyers are supposed to know more about searching than the majority of folks on the planet. Lawyers are experienced in the ability to search Lexis and Westlaw using Boolean operators (and, or, not, etc.) and the innovative "w/" command. So why can't lawyers successfully port over the skills they've honed in legal research to the world of e-discovery? Several judges have expressed their lack of confidence in the lawyer's ability to craft successful search protocols for e-discovery. In United States v. O'Keefe, No (D.D.C. Feb. 18, 2008), Judge Facciola commented that "given the complexity [of creating effective search terms], for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread." In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), Judge Grimm stated that "all keyword searches are not created equal" and that the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. In William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), Judge Peck issued a "wake-up call" to the bar that lawyers must start understanding their limitations when it comes to selecting appropriate search terms for discovery. Q

11 Why is there such an inconsistency between lawyers who believe they can generate appropriate search terms, and the judges who express a lack of confidence in that ability? One reason is that lawyers refuse to accept the possibility that there is a disconnect between their knowledge of "searching" (based on Google & Lexis) and the science and idiosyncrasies involved with "information retrieval." When we discuss "search," most of us now think Google. The Internet is so vast, and Google allows us to make sense of that otherwise overwhelming world. So when we talk about "searching" through a group of documents, most of us think of "Googling" for a word or phrase. This describes the process of using search terms for the "find function," usually used in the review stage of e-discovery. But the same search terms can also be used in a "filtering function" during the processing phase of e-discovery. As documents are ingested into a document review platform, or data is converted from native file to TIFF images, we can use a set of search terms to filter the documents. If a document contains a search term, it will be returned as a "hit" and theoretically, that document should be more relevant that other documents that do not contain those search terms. To do this, you must be completely confident that your search terms are accurate, the tool will include variations of words, terms will include "stemming," and they will not retrieve "noise" words. It's also important for lawyers to understand what they're searching when they use a document review platform. This may seem like a ridiculous query, but most review tools do NOT search the content of the documents. Rather, they search an index that gets created when data is ingested or loaded into the platform. The index is the foundation for all searches. Because an index usually places information in "fields," it can be much more accurate to use a fielded search to find relevant information, rather than trying to perform a "brute force" search against the entire database. For example, if you're looking for a word specifically in the subject line of an (rather than the entire body of the message), Q

12 you can limit your search to just the subject field which will be much quicker and more accurate. Most indexes ignore common "noise" words (often called "stop words"). Common words like "a," "the," "to," etc. are completely ignored so as to not bog down the entire index. This is very important to know in case one of the search terms you are intent on searching falls into this list of stop words. Unfortunately, every tools works from a different set of stop words so there is no consistency in the marketplace. Another reason why "search" in e-discovery is so hard is because the e-discovery market engenders confusion. Most vendors refuse to share their proprietary algorithms and technology that power their platforms this becomes a "black box" to most lawyers. Most vendor representatives lack the ability to adequately describe how their tool retrieves results. To be fair, most lawyers may be unable to adequately comprehend the technology in use behind search platforms, but the e-discovery industry might require a little more transparency before everyone understands what is going on. Furthermore, most e-discovery vendors are quick to differentiate their product from other competitors without an overall consensus on how to describe search tools. As John Jessen mentioned in the ABA Journal story "In Search of the Perfect Search:" "right now anyone can say anything about search technology. You can say your search is 8% more accurate than the next guy's but there's no common benchmark about what those claims mean. Right now, it's a marketing world; whatever the marketers says goes." How can this be fixed? That's a difficult question, but there are some groups that are trying to work through the confusion including the Text Retrieval Conference Legal Track (TREC). The main question that has to be answered in any search performed on e-discovery is whether it's "defensible." Even though it has been established by studies performed by TREC and others that keyword search is deficient (usually only returning approximately 20% of the relevant documents), it is defensible, and so it continues to be the standard. Q

13 With that in mind, here are a few practical tips for planning successful searches in your next e-discovery adventure: Start talking about the relevant terms and phrases with opposing counsel as early as possible. Talk to the people that actually used the technology and sent the s (the custodians). You'll discover any "code words" they used as well as how they referenced relevant events and tasks. Always consider misspellings, variant spellings, synonyms, language variations, ambiguous terms, "l33t 5p34k" etc. Use keywords in conjunction with filtering techniques (de-duplication, de- NISTing, etc.) so as to perform searches on the smallest number of documents possible. Search is an "iterative" process that includes sampling and testing. Successful searches are a combination of human input & planning along with automated technology. Q

14 Choosing An ESI Vendor Unfortunately, there is no magic method for choosing the appropriate ESI vendor for every litigation matter. Which vendor you choose may depend upon the tasks required, the size of the matter, and the nature of the case. That said, there are some definable aspects of an e-discovery project that are worth discussing to provide some guidelines on choosing an ESI vendor. Not all of the phases of an e-discovery project are easy to tag with a cost. The processing, review, and production phases are quantifiable aspects of an e-discovery project, while the identification and collection phases are not so easily attached with a price tag. For example, processing is quantifiable because there is usually a "per-click" charge for converting electronic documents to TIFF images, or OCR'ing documents. On the document review side, the quantifiable measure is usually the traditional billable hour, since lawyers continue to insist on reviewing every single document and file associated with a litigation matter. You can read more on this topic in my article entitled "Subdue the Costs of Document Review" on Law.com ( You can also listen to much more information about this topic by listening to my podcast entitled "How to Shop for Electronic Discovery Services" - Q

15 Short Glossary of E-Discovery Related Terms To successfully discuss electronic discovery, it is imperative to establish a common set of terms to use in further discussion. While the list below is in no way comprehensive, it provides some of the most important terms in e-discovery. Unless otherwise noted, all of these definitions are adapted from: "The Sedona Conference Glossary: E-Discovery & Digital Information Management (Second Edition) December 2007 Version" Backup Data: An exact copy of ESI that serves as a source for recovery in the event of a system problem or disaster. Backup Data is generally stored on portable media separately from "Active Data." Backup Data is distinct from Archival Data in that Backup Data may be a copy of Active Data, but the more meaningful difference is the method and structure of storage that impacts its suitability for certain purposes. Backup Tape: Magnetic tape used to store copies of ESI, for use when restoration or recovery is required. ESI on backup tape is generally recorded and stored sequentially, rather than randomly, meaning in order to locate and access a specific file or data set, all ESI on the tape preceding the target must first be read, a time consuming and inefficient process. Backup tapes typically use data compression, which increases restoration time and expense, given the lack of uniform standards governing data compression. Bit: A bit (binary digit) is the smallest unit of computer data. A bit consists of either 0 or 1. There are eight bits in a byte. Byte (Binary Term): A Byte is the basic measurement of most computer data and consists of 8 bits. Computer storage capacity is generally measured in bytes. Although characters are stored in bytes, a few bytes are of little use for storing a large amount of data. Therefore, storage is measured in larger increments of bytes such as Kilobyte, Megabyte, Gigabyte, Terabyte, Petabyte and Exabyte (listed here in order of increasing volume). Q

16 Database: In electronic records, a database is a set of data elements consisting of at least one file, or of a group of integrated files, usually stored in one location and made available to several users. Databases are sometimes classified according to their organizational approach, with the most prevalent approach being the relational database - a tabular database in which data is defined so that it can be reorganized and accessed in a number of different ways. Computer databases typically contain aggregations of data records or files, such as sales transactions, product catalogs and inventories, and customer profiles. De-Duplication: De-Duplication ( De-Duping ) is the process of comparing electronic records based on their characteristics and removing or marking duplicate records within the data set. The definition of duplicate records should be agreed upon, i.e., whether an exact copy from a different location (such as a different mailbox, server tapes, etc.) is considered to be a duplicate. Message: A document created or received via an electronic mail system. Any attachments that may be transmitted with the message, such as word processing and other electronic documents, are not part of the message, but are part of the Message Unit. Metadata: Data stored in the about the . Often this data is not even viewable in the client application used to create the , e.g., blind copy addressees, received date. The amount of metadata available for a particular varies greatly depending on the system. Exchange Server: A server running Microsoft Exchange messaging and collaboration software. It is widely used by enterprises using Microsoft infrastructure solutions. Among other things, Microsoft Exchange manages , shared calendars and tasks. Metadata: Data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Certain metadata can be extracted when native files are processed for litigation. Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed to paper or electronic image. Q

17 Native Format: Electronic documents have an associated file structure defined by the original creating application. This file structure is referred to as the native format of the document. Because viewing or searching documents in the native format may require the original application (for example, viewing a Microsoft Word document may require the Microsoft Word application), documents may be converted to a neutral format as part of the record acquisition or archive process. Static formats (often called imaged formats ), such as TIFF or PDF, are designed to retain an image of the document as it would look viewed in the original creating application but do not allow metadata to be viewed or the document information to be manipulated. In the conversion to static format, the metadata can be processed, preserved and electronically associated with the static format file. However, with technology advancements, tools and applications are becoming increasingly available to allow viewing and searching of documents in their native format, while still preserving all metadata. Spoliation: Spoliation is the destruction of records or properties, such as metadata, that may be relevant to ongoing or anticipated litigation, government investigation or audit. Courts differ in their interpretation of the level of intent required before sanctions may be warranted. TIFF (Tagged Image File Format): A widely used and supported graphic file formats for storing bit-mapped images, with many different compression formats and resolutions. File name has.tif extension. Can be black and white, gray-scaled, or color. Images are stored in tagged fields, and programs use the tags to accept or ignore fields, depending on the application. The format originated in the early 1980s. Q

18 Legal Resources Zubulake v. UBS Warburg Kroll Ontrack ZUBULAKE I, MAY 13, 2003: Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). ZUBULAKE II (Please note: this does not relate to electronic disclosure): Zubulake v. UBS Warburg, No. 02 Civ. 1243, 2003 WL (S.D.N.Y. May 13, 2003). ZUBULAKE III, JULY 24, 2003: Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003). ZUBULAKE IV, OCTOBER 22, 2003: Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). ZUBULAKE V: Zubulake v. UBS Warburg, 2004 WL (S.D.N.Y. July 20, 2004). Also see: The Pension Committee of the University of Montreal Pension Plan, et. al. v. Banc of America Securities, et. al., 2010 WL (S.D.N.Y. Jan. 15, 2010) Q

19 E-Discovery for Everybody: The Edna Challenge Craig Ball "E-discovery is just for big budget cases involving big companies, handled by big firms. Right, and suffrage is just for white, male landowners If you think big firms succeed at e-discovery because they know more than you do, think again. Marketing hype aside, big firm litigators don't know much more about e- discovery than solo practitioners. Corporate clients hire pricey vendors with loads of computing power to index, search, de-duplicate, convert and manage terabytes of data. Big law firms deploy sophisticated in-house or hosted review platforms that let armies of associates and contract lawyers plow through vast plains of data--viewing, tagging, searching, sorting and redacting with a few keystrokes. The big boys simply have better toys. A hurdle for everyone else is the unavailability and high cost of specialized software to process and review electronic evidence. A Mercedes and a Mazda both get you where you need to go, but the e-discovery industry has no Mazdas on the lot. This article explores affordable, off-the-shelf ways to get where you need to go in e-discovery" When You Don't Need an Army: EDD for Everyday Lawsuits The "Ernie" Challenge Tom O'Connor Q

20 Ethics In E-Discovery Lawyers have two packages of often conflicting duties when it comes to electronic discovery: duties to clients, and duties to the adversarial system (opposing parties, courts, etc.). When we discuss a lawyer's duties to a client, we are usually discussing the various ethics rules concerning confidentiality and competence. These rules govern the conduct of lawyers towards their clients and their clients' information. While the ABA Model Rules of Professional Conduct are frequently referenced, there are also common law duties that concern keeping a client informed. A lawyer's duties to the adversarial system include following various ethics rules, as well as other laws and local court rules. These rules include a lawyer's candor towards the tribunal, and fairness to the opposing party and counsel. Searching for Ethics One area where lawyers have found it difficult to follow an ethical straight line in e- discovery is "search." This is not always an intentional disregard for the lawyer's ethical responsibilities, but because technology can be confusing and technical, many lawyers have found themselves lacking the skill and competence necessary to formulate effective and defensible search processes. When we discuss "searching" in the context of e-discovery, we are commonly referring to the practice of applying search "keywords" and phrases to a set of documents in the hope of retrieving a select, focused group of those documents that are responsive to our search parameters. It sounds like an easy task, after all, everyone can run a Google search. But defensible search has become more problematic in the context of search and retrieval of relevant document sets than anyone anticipated. This frustration has been borne out in several opinions such as United States v. O'Keefe, 537 F. Supp.2d 14 (D. D.C.2008), where Judge Facciola famously stated: Whether search terms or keywords will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to Q

21 produce information than the terms that were used is truly to go where angels fear to tread. In that same year (2008), Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D. D.C. 2008) opined in a similar fashion: [D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) and requires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence. Other opinions have expressed similar frustration with the lack of comfort and continuity among lawyers to devise effective and defensible approaches to "searching" a set of documents and data. Preservation and Spoliation The Rule of Professional Responsibility most directly affecting the issue of preservation of electronic data is Rule 3.4, entitled "Fairness to Opposing Party and Counsel." Rule 3.4(a) states: "[A lawyer shall not] unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act." The comment to Rule 3.4 provides further important guidance regarding its purpose and scope: "The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedure right. The exercise of that right can be frustrated if the relevant material is altered, concealed or destroyed. Applicable law in many Q

22 jurisdictions makes it an offense to destroy material for purposes of impairing its availability in a pending procedure or one whose commencement can be foreseen Paragraph (a) [of Rule 3.4] applies to evidentiary material generally, including computerized information." The annotation to Rule 3.4(a) points out that while a violation of the rule may expose a lawyer to professional discipline, "it is normally the judge hearing the matter who initially takes the corrective action through litigation sanctions, such as exclusion of evidence, and the payment of fines, costs, and attorneys' fees." While the ethics rule is a starting point, much of what is important regarding the ethical issues related to the duty to preserve electronic data is found in the case law discussing spoliation of evidence, the duty to preserve evidence, the sanctions available under the discovery rules, as well as the inherent authority of the court. The duty to preserve relevant information to be exchanged with an opposing party usually encircles the concept of a "litigation hold." Three concerns around the litigation hold include: 1. When the duty arises the "trigger" 2. What must be preserved the "scope" 3. How should it be preserved the "process" The "Trigger" The duty to preserve evidence is triggered when litigation or an investigation begins, or when litigation or an investigation can be "reasonably anticipated." In Byrnie v. Cromwell, 243 F. 3d 93 (2d Cir. 2001), the obligation to retain arises when a "party has notice that evidence is relevant to litigation but also on occasion in other circumstances, as for example, when the party should have known that the evidence may be relevant to future litigation." Q

23 The "Scope" "Corporations are not obligation, upon recognizing the threat of litigation, to preserve every shred of paper, every or electronic document, and every backup tape. Indeed, such a rule would cripple large corporations." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) Nevertheless, "[w]hile a litigant is under no duty to keep or retain every document in its possession, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request." Wm. T. Thompson Co. v. General Nutrition Corp. Inc., 593 F.Supp. 1443, 1455 (C.D. Cal. 1984) "[A]nyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary." Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) The "Process" A party must take reasonable steps to identify and preserve relevant information as soon as practicable. Judges expect a good faith, reasonable process that is defensible and documented. The "Zubulake" Duty was outlined in Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004): 1. Issue a "litigation hold" at outset and periodically reissue" 2. Communicate directly with the "key players" 3. Instruct all employees to produce copies of relevant electronic files 4. Make sure that all media which the party is required to retain is identified and stored in a safe place. Q

24 Protecting Privilege There is an increased risk of waiver of privilege in e-discovery because of the volume of data involved, the multiple locations where data can be stored, and the confusion that accompanies the collection and preservation of electronically stored information. Courts have taken three different approaches to the inadvertent disclosure of electronically stored information: 1. Strict waiver from inadvertent production; 2. An intermediate approach (weighing several factors); 3. And no waiver absent client agreement. Model Rule 4.4(b) states that "a lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." Federal Rule of Civil Procedure 26(b)(5)(B) states: "after being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information and may promptly present the information to the court under seal for a determination of the claim." In Victory Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), Judge Grimm ruled that there was a waiver of privilege through inadvertent production of electronic records because the defendants failed to establish that they took reasonable measure to prevent inadvertent disclosure. The defendants used an untested keyword search, failed to engage in sampling the verify its results, and were "regrettably vague" in their description of the keyword search. In Alcon Mfg., Ltd. v. Apotex, Inc., 2008 U.S. Dist. LEXIS (S.D. Ind. Nov. 26, 2008), the court applied Federal Rule of Evidence 502 and found no waiver by inadvertent production: Q

25 "Perhaps the situation at hand could have been avoided had Plaintiffs' counsel meticulously double or triple-checked all disclosures against the privilege log prior to any disclosures. However, this type of expensive, painstaking review is precisely what new Evidence Rule 502 and the protective order in this case were designed to avoid." Agree to Disagree Cooperation in E-Discovery The concept of "cooperation" among litigating parties has become a clarion call from the bench as judges have grown increasingly frustrated with the delays and unnecessary hand-wringing surrounding the procedural fights around e-discovery. In July 2008, the Sedona Conference issued the "Cooperation Proclamation" which sought the "open and forthright sharing of information by all parties." It stated: "Cooperation does not conflict with the advancement of their clients' interests it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict." In discussion the "Cooperation Proclamation," Ken Withers, the Director of Judicial Education and Content for the Sedona Conference, stated: If the goal of discovery is to uncover facts to be used during settlement conferences or at trial, why not cooperate in the discovery process, and utilize advocacy and persuasion skills to argue the interpretation of the facts and the application of the facts to the law? In Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (2008), Judge Grimm cited the Sedona Conference Cooperation Proclamation and stated "there is nothing inherent in [the adversary system] that precludes cooperation between the parties and their attorneys during the litigation process to achieve orderly and cost effective discovery." Q