ediscovery in Labor and Employment Cases Jason Priebe May 19, 2016 Seyfarth Shaw LLP Seyfarth Shaw refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).. All rights reserved. ediscovery in Labor & Employment Cases Preservation Benefits of Early Understandings and Agreement on Preservation Legal Hold Communications Sources of Potentially Relevant ESI Investigation and Production 2 1
The Duty to Preserve 3 Scope and Timing WHO: All individuals who had any involvement with the issues raised in the litigation, but especially the key players. WHAT: All documents potentially relevant to the claims and defenses in the action; it is typically best to preserve broadly. WHEN: The duty to preserve evidence arises when a party reasonably anticipates litigation, which is no later than receipt of the complaint, but is often much earlier. WHERE: All locations where potentially relevant ESI may be located (e.g., email, hard drives, network servers, removable media), even if not in your possession but within your control. 4 2
Litigation Hold Notices 5 Litigation Hold Notice, Generally A communication to appropriate persons to take reasonable steps to preserve information relevant to an existing or pending lawsuit or investigation. First step in preservation process Suspension of records life-cycle Team approach to creation and distribution 6 3
Contents of Litigation Hold In re Prudential Inc. Co. of America Sales Litig., 169 F.R.D. 598 (D.N.J. 1997) Prudential was sanctioned for sending an inadequate hold notice. The court issued findings criticizing Prudential s: Failure to designate a specific individual as primary contact for information about preservation. Failure to set forth admonitions in boldface or an enlarged font. Failure to distribute the notice through an effective channel (notice was sent through e-mail, and witnesses testified that they ignored email /lacked access to email). Failure to mention the litigation that was pending. Prudential was fined $1 million and required to distribute a comprehensive hold notice and copy of court s order. 7 Litigation Hold: Best Practices Who are the recipients? Anyone who has potentially relevant information in their possession, custody or control. Who are the custodians of information? Start with Rule 26 disclosures (plaintiff s and defendant s) IT and HR staff -- Suspend routine document destruction!! Clearly articulate what should be preserved and why. Nature of the lawsuit and seriousness of the preservation obligation. Kinds of information that are potentially relevant Where information could be found Paper AND electronic, including personal files 8 4
Litigation Hold: Best Practices Instruct how to preserve information e.g., how to deal with email size limitations and automatic purges Include a contact for questions Both IT and Legal Consider an acknowledgement process Recipients certify that they have read, understand and will comply with the notice. Signed paper Electronic acknowledgement form 9 Avoid the Shopping List Legal Hold Resist the temptation to issue a comprehensive notice. A notice can be drafted to: Discuss only the broad contours of a complaint s allegation. Provide examples of categories of relevant documents or locations where they might be found. This approach: Increases comprehensibility (and reduce length). Provides protection against accusations of under-inclusiveness. 10 5
Response to Preservation Demands Not actually required Template letters are fairly useless (does the writer know what they are saying?) except to start a conversation On the bright side, a good opportunity to open a meaningful dialogue about reasonable and proportional preservation Potentially relevant ESI sources, relevant date ranges, custodians, etc. Just as easy to write a letter to request a meet and confer on preservation 11 Responding to Preservation Demands A requesting party s ESI demands may be unjustifiably broad, and complying would be unduly burdensome and costly (e.g., seeks restoration of email Backup Tapes) In federal cases, counsel can respond to such requests by raising objections, including: The requests are overly broad or vague; The information requested is duplicative in nature; The burden of the discovery outweighs the likely benefit; Certain ESI is not reasonably accessible under the framework established by Rule. 26(b)(2)(B). Related argument: The requesting party should share in the cost of discovery. 12 6
Seeking Agreement on Preservation 13 Discussing Preservation at the Meet and Confer Rule 26(f) requires that parties meet as soon as practicable in order to discuss any issues relating to preserving discoverable information. The meet and confer is an important opportunity to define scope of discovery and reach agreement. If negotiation fails, a party may request that the court enter a protective order limiting the scope of discovery. 14 7
Privilege in Legal Holds 15 Litigation Hold: Privilege Issues Often assumed that lit hold notices, drafted in anticipation of or in response to actual litigation, are protected by the Attorney-Client privilege or work product doctrine. This issue remains somewhat unsettled. 8
Privilege: Attorney-Client Privilege The applicability of privilege varies by jurisdiction. In many jurisdictions, sharing privileged communications with non-employees (e.g., cloud providers) will cause a waiver. Some jurisdictions have very limited views of who is within the scope of the privilege. Capitano v. Ford Motor Co., 831 N.Y.S.2d 687 (N.Y. Sup. Ct. 2007). Based on factual circumstances, Court found that the litigation notice was an attorney-client privilege communication (without addressing the question of work product). 17 Privilege: Work Product Theory is that the duty to preserve is fundamentally a question of substantive law. Decisions about what information is within the scope of the duty to preserve necessarily include a lawyer s work product. Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007). Court determined that a litigation hold notice would likely be protected under the work product doctrine, however, that case did not involve any actual analysis of the litigation hold notice itself. 18 9
Foregoing Privilege Why forgo claiming privilege? Litigation holds can be used to defend against claims of spoliation; they identify reasonable and prompt steps taken to implement a preservation plan. If there is discovery around preservation, there is no need to undergo time and expense to produce in camera documents under seal. Many lit hold notices are not drafted to insure that they are privileged documents or subject to work product protection, or are disseminated in a manner that destroys claims. 19 Foregoing Privilege (cont.) Potential risks of forgoing privilege: Providing a litigation hold notice to opposing counsel may provide a road map to issues believed to be important to the case. If the issuance of a litigation hold is not prompt, the hold provides discoverable evidence as to when party took steps to preserve relevant information. 10
Notice to Third Parties Parties are obligated to preserve any potentially relevant information within their control held by third-parties. Duty to Preserve: Summary Standard: Preserve potentially relevant information. Pre-Duty Obligations As long as a party is not under an obligation to preserve evidence due to a statute, regulation, or existing litigation hold, they are able to destroy records subject to record retention policy. When is Duty Triggered It s a matter of opinion up until the complaint is filed. A plaintiff s duty to preserve evidence is often triggered before the defendant s. Post-Duty Obligations Take reasonable steps to preserve potentially relevant information. 11
Legal Hold Management and Compliance 23 Re-Issuance of Litigation Holds Events prompting re-examination of the scope of preservation and collection efforts may require the issuance of additional/modified hold notices: Following interviews with Key Custodians Filing of amended complaint(s) Filing of class certification motion Receipt of Plaintiffs Rule 26 disclosures Receipt of written discovery responses from Plaintiffs Completion of key witness depositions 24 12
Re-Issuance of Litigation Holds Periodic re-issuance throughout the litigation is also important. Re-issuance of reminder notices should be a matter of routine and not tied to any other events in the litigation. Timing of reissuance can differ, e.g. every six months, quarterly. 25 Potential Locations of ESI (And Proportionality) 26 13
Structured Databases Databases are commonly used to track and crossreference information for a wide variety of business functions. Requesting party is usually entitled only to fields containing relevant information, not the entire database. Not all information in a database may be equally accessible; requests should be analyzed for relevance and proportionality. Manner in which requesting party plans to use information is an important factor in determining format of production. 27 Structured Data In a Labor and Employment Case Human Resources Information System (HRIS) Payroll System Employee Benefits Internal Employee Metrics and Compliance Tracking Timekeeping and Attendance Scheduling Succession Planning Applicant Tracking System (ATS) Employee Training Policies and Procedures 28 14
Handling Structured Data Sedona Conference Principles Concerning the Production and Preservation of Database Information Standardized Format Standard Reports Early Discussion and Agreement 29 Social Media No industry-standard tools available to preserve/collect social media content. Data may be stored locally or on the site s servers Locally stored data can be analyzed using forensic tools. Server data protected by Stored Communications Act and wiretapping laws. Other collection options: Screen captures Webpage archives Use of web crawlers 30 15
Mobile Devices Mobile devices can include: Smartphones Company issued devices Tablets Preservation/collection options vary greatly depending on the device Many devices can be synched with standard PC/Mac Physical v. logical collection strategies 31 Third Parties & Hard Copies Counsel shouldn t forget Information maintained by third parties Paper documents Hard copy documents are still out there and need to be preserved. 32 16
ESI Collection Options for collection Full disk imaging Logical file collection File type filters Date filters Search Terms Self-collection Portable collection Easy to use Useful for custodians in remote locations or frequent travelers Per custodian pricing options 33 Questions? 34 17