E-Discovery in Practice: A Roadmap for Financial Institutions Martha R. Mora Martha R. Mora, Esq. ARHM&F Avila Rodriguez Hernandez Mena & Ferri LLP 2525 Ponce de Leon Blvd., Suite 1225, Coral Gables, Florida 33134 305.779.3567 Fax 305.779.3561 mmora@arhmf.com www.arhmf.com
What is E-Discovery? E-Discovery stands for Electronic Discovery, and refers to the preservation and exchange of electronic information that may be used as evidence in a legal dispute. It is mandated by law, including the rules of procedure of the courts. For example, emails are requested and produced on a disk in their native.pst (Outlook) format rather than printed out. Emails are Electronically Stored Information that include metadata embedded in them which is not available from hard, printed copies of the emails. The emails can also be searched and sorted.
ESI = Electronically Stored Information E-Discovery encompasses the preservation and production of ESI, as well as the right to obtain ESI. ESI includes metadata embedded within a digital item that describes it and provides additional information. A text document's metadata may contain information identifying its author, when the document was created, when and by whom it was edited, whether it was forwarded by email, who accessed the document and a short summary of the document.
Examples of ESI ESI includes items saved on a computer server, an individual hard drive, a flash drive, a CD, the Web, a Blackberry, and an ipad. Examples: Power point presentations and Excel spreadsheets. (ESI may tell you how, when, and who edited this presentation!) Voice mail messages. Web pages and a computer s Internet search histories.
Two Types of E-Discovery 1. Defensive E-Discovery Meeting discovery obligations by locating, preserving, collecting, reviewing and producing ESI. Protecting privileged and confidential information so that it is not inadvertently disclosed through metadata. 2. Offensive E-Discovery Requiring another to produce ESI to you, usually in litigation.
A Basic Roadmap for E-Discovery 1. Locating & Preserving ESI: Search for, find and stop deleting ESI. 2. Collecting ESI: Gather and store the ESI. 3. Reviewing ESI: ESI must be responsive and not privileged. 4. Producing ESI: Turning over the ESI.
Locating & Preserving ESI When must you locate and preserve ESI? When Litigation is filed or reasonably anticipated, you must immediately locate and preserve documents and ESI that you know, or reasonably should know, are relevant. - Reasonably anticipates includes when you have notice of a dispute and you may have relevant evidence.
Examples: Trigger Events A trigger event triggers your duty to locate and preserve relevant documents and ESI by placing you on notice of a dispute for which you may be holding evidence. Lawsuits Demand letters Subpoenas Regulatory/Government requests Notices of investigation Complaints from customers or employees Complaints received through hotlines Internal investigations
Discovery Team Who must locate & preserve responsive ESI? Everyone in the institution who has responsive ESI. A Discovery Team should be in place to respond to E-Discovery, as well as regular discovery. The Team should include IT to execute an effective plan to locate, preserve, collect and produce ESI. Your IT Department should immediately spearhead searches for and preserve responsive ESI.
Discovery Team Training The Team should be properly trained on the legal obligations, systems and efficiency. The Team should be aware of financial institution privileges. The Team should be sensitive to knowing when to advise a customer if its information is requested in discovery. Customers should be notified of civil subpoenas for their accounts. Customers must not be notified of a grand jury subpoena because disclosure to anyone is a violation of law.
Litigation Hold How should the ESI be preserved? Suspend your document retention / destruction policy and place a Litigation Hold so that the routine deleting of ESI, such as email, does not destroy any responsive ESI. Circulate a Litigation Hold Memo that specifically instructs personnel to preserve responsive ESI in their possession.
Collecting ESI Gather the relevant ESI and documents. ESI should be promptly gathered so that metadata is not lost. Clearly establish the person responsible for gathering and holding the ESI. This person may need to testify about compliance or custody. Create an ESI Repository. Once the ESI is preserved and collected, it should be stored in one place. The ESI may then be made available for review.
Reviewing ESI Responsiveness Review. Determine whether the collected ESI is responsive. You should not generally produce ESI that is not responsive. Customer confidentiality makes responsiveness important for Banks. Privilege Review. Identify who is responsible for removing privileged documents. An attorney should be involved, although properly trained personnel may review in smaller matters for efficiency. SAR Review. Determine whether a SAR should be filed (BSA).
Financial Institution Privileges Bank examination/supervisory privilege. - FDIC: 12 CFR 309, et seq. - Federal Reserve Bank: 12 CFR 261, et seq. - OCC: 12 CFR 4.31, et seq. Customer confidentiality / Fla. Stat. 655.059. SARs. Work Product (e.g., internal investigations). Attorney-Client Privilege.
Privilege Log All responsive documents not produced must be identified in a Privilege Log. The Privilege Log is given to the opposing party and the Court. ESI must be preserved until the Court reviews the documents in camera and decides if they must be produced or are privileged.
Producing ESI Format: ESI should be produced in the same format as it is maintained, unless there is an agreement in place to produce differently. Bates labeling: (1) identifies ESI and all documents produced by numbering the pages and disks; (2) simplifies subsequent inquiries and claims of non-production. Cover letter: identifies the documents produced, the format, and the medium of production. For example, enclosed is CD #1 containing documents bates numbered 001 through 978 which are documents being produced in.pdf format.
Documenting Compliance Documenting the Search for and Preservation of ESI. Document the search even if no responsive ESI is located. Keep the Litigation Hold Memo since it protects against claims of noncompliance. Treat the Litigation Hold Memo as a document that will be produced. Documenting the Collection of ESI. Keep records of where and when the ESI was located and who collected it. Documenting the Review of ESI. Keep a record of what documents were withheld and why. Documenting the Production of ESI Cover letter should document how and when the ESI was produced.
Continuing Obligation The Duty to Preserve does not end when you respond to the discovery. In federal court, parties have a continuing duty to supplement their discovery responses. In state court, additional discovery requests may be served. Subsequent ESI (such as emails) may have to be preserved and produced. If you email a customer upon receiving a subpoena, that email and any response could be responsive to the same subpoena.
Offensive E-Discovery E-Discovery is also a right, not just an obligation. You have the right to request that the opposing party produce ESI to you. Having the opposing party produce documents to you electronically can make review more efficient. The other side may ask you to produce the same ESI.
Managing E-Discovery Seek an agreement with the other party governing all aspects of E-Discovery. Avoid E-Discovery disputes. Expensive and disruptive, even if you prevail. Could result in greater disruption and expense (e.g., Court ordered production of back up tapes). Consider using a vendor to assist in storing and producing ESI (yours or the opposing side s). E-Discovery s costs may reduce other expenses, such as attorney and expert review.
Discovery s Extraterritorial Reach Generally, U.S. Courts have held that discovery has an extraterritorial reach. - A discovery request to a company s office in the U.S. requires production of responsive documents located in that same company s foreign offices. A court could require a bank to produce a foreign branch s records in response to U.S. discovery.
Foreign Branch Records We have successfully argued that foreign bank branches should be viewed as separate entities for discovery purposes since banks are different from companies in that they are regulated in every country. - Complying with U.S. discovery could violate the applicable banking laws in the foreign branch s jurisdiction. However, a U.S. branch is always required to produce documents directly accessible to that branch, including electronic information. Copyright 2011 ARHM&F
Be Prepared for E-Discovery Have a trained Team, that includes IT and legal personnel, prepared to act promptly. Recognize the events that trigger your duty to locate and preserve. Develop a discovery plan that includes preserving, collecting, reviewing and producing ESI. Document your compliance.
Martha R. Mora, Esq. ARHM&F Avila Rodriguez Hernandez Mena & Ferri LLP 2525 Ponce de Leon Blvd., Suite 1225 Coral Gables, Florida 33134 305.779.3567 Fax 305.779.3561 mmora@arhmf.com www.arhmf.com