ESI PROTOCOLS & CASE LONG BUDGETS
General Items Of Thought What s a GB =??? What Are Sources Of Stored Data? What s BYOD mean??? The Human Factor Is At Play!
Litigation Hold Duty Arises When? Zubulake v. UBS Warburg, LLC 220 F.R.D. 212 (S.D.N.Y. 2003) A litigation hold refers to a company s affirmative acts to preserve paper or electronically stored documents relating to the subject of current or impending litigation. The purpose of a litigation hold is to prevent the destruction of relevant data, and to ensure employees are apprised of their employer s document preservation obligations. [o]ncea party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to safeguard all relevant data.
Common Law Duty to Preserve Reasonable anticipation of litigation is triggered by: An internal email stating, Boy, we really messed this project up and are sure to be sued. Approaching outside counsel to discuss the filing of a complaint against another party. The receipt/filing by your client of a complaint. = Time to issue a Legal Hold Letter
Do you wait for an action to be filed? Do you advise in advance play the risk manager role and be a hero or a villain? What are your client s policies? [t]he adoption and consistent application of an organization s policy or practice regarding preservation obligations may tend to show reasonableness and good faith on the part of the organization. Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 11 Sedona Conf. J. 265, 269 (2010)
You Must: Promptly implement an effective litigation hold Ensure that all relevant sources of potentially relevant information are pinpointed and preserved Interview key employees involved in the impending litigation How do they handle & store emails How do they handle other electronic data
[w]hilea litigant is under no duty to keep or retain every document in its possession, even in advance of litigation it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation. Scott v. IBM Corp, 196 F.R.D. 233, 249 (D.N.J. 2000)
What should you consider? How is their electronic data maintained & retained? Are there procedures in place that create a danger of evidence destruction, Automatic email deletion Rewriting on backup tapes Regularly evaluate your document retention policies opportunity to assess in advance of litigation if there are shortcomings that require retooling the fix them FRCP, Rule 37(e),absent exceptional circumstances, a court may not impose sanctions for failing to provide electronically stored information that is lost as a result of routine, good-faith operation of an electronic information system.
Interview your information technology personnel to determine: Document retention policies being applied, if any Nature of the company s technological infrastructure Feasibility of suspending practices that might include automatic email deletion and rewriting of backup tapes
Distributed to those who may be potentially relevant to the anticipated litigation Meaning those: Who generated relevant documents Who received the relevant documents Who maintain the information IT, records personnel, human resources, legal department, off-site storage
Description of the case Identification of what documents should be preserved and how Instruction that any automatic email deletion setting should be turned off Instruction to search for documents or information relevant to the litigation, while erring on the side of preservation Identification of the consequences to the company and its employees for failure to heed the litigation hold directives Contact information for the person(s) overseeing data preservation or electronic efforts Monitor compliance & efficacy of the litigation hold
Apple v. Samsung $2.5 Billion at stake Samsung issued a litigation hold to identified employees acknowledging the reasonable likelihood of future patent litigation with Apple Failed to suspend its automatic 14-day email destruction policy a Failed to send hold notices to other key custodians when litigation was reasonably foreseeable Failed to verify or monitor it was being followed Samsung s lead product designer s failed to produce a single email and others only a handful Judge s statements duty to preserve isn t satisfied by just sending out the hold notice both sides had obligations to preserve their documents Apple must have known it was a two-way street. Apple was a victim of its own success Samsung s practices resulted in prior sanctions Apple wasn t playing fair either Objective: Avoid having a negative inference jury instruction given!
Imprisonment 2 year jail sentence for the president of the company intentional spoliation of relevant documentation (Victor Stanley, Inc. v. Creative Pipe, Inc) Criminal Prosecution BP Oil Spill USA v Kurt Mix destroyed pertinent information despite repeated requests directly to him to preserve. The problem: it was all recoverable by some very smart people Jury Instruction Mandatory presumption Certain facts be deemed admitted & accepted as true CA Civil Instruction 204 You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party State Bar & Sanctions (Qualcomm v Broadcom 2009) Qualcomm s counsel alleged to have destroyed and or concealed documents Counsel for Qualcomm referred to the State Bar for ethics violations and were cleared Qualcomm paid $9.26 million to Broadcom for aggravated litigation misconduct Case or Issue Determining Motion or Ruling Striking the Answer, Affirmative Defense Granting of a Directed Verdict
ABA Proposed Revision Competency of Counsel To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated to relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. ABA Commission explained that this phrase pertains also to "how lawyers conduct investigations, engage in legal research, advise their clients, and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved... 'notable developments' in technology that have impacted the practice of law to include electronic communication; mobile electronic storage; third-party servers; how clients find lawyers; virtual offices; and online practice management."
CA Rule of Court 3.724 Duty to Meet & Confer Unless the court orders another time period, no later than 30 calendar days before the date set for the initial case management conference, the parties must meet and confer, in person or by telephone, to consider each of the issues identified in rule 3.727 and, in addition, to consider the following: (1) Resolving any discovery disputes and setting a discovery schedule; (8) Any issues relating to the discovery of electronically stored information, including: (A) Issues relating to the preservation of discoverable electronically stored information; (B) The form or forms in which information will be produced; (C) The time within which the information will be produced; (D) The scope of discovery of the information; (E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production; (F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings; (G) How the cost of production of electronically stored information is to be allocated among the parties; (H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information; and (9) Other relevant matters.
Code of Civil Procedure 2031.060 (a) & (f) (California Electronic Discovery Act) (a) (f) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exist: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.
Rule 3-110 - Failing to Act Competently (A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. (B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. (C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.
Rule 3-210 Advising the Violation of Law A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal. Rule 5-220 Suppression of Evidence A member shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce.
93%of all business records are stored electronically, and of that amount, less than 30% are ever printed to paper. The average worker receives approximately 55 e-mails every day. For a small business of 100 employees, this translates into approximately 1,375,000 e-mails annually.
Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. 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.
Utilizing internal ESI discovery point persons to assist; Exchanging information on relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information; Jointly developing automated search and retrieval methodologies to cull relevant information; Promoting early identification of form or forms of production; Developing case-long discovery budgets based on proportionality principles Considering court-appointed experts
Biggest Risks: Sanctions As recently as 2003, there were only seven e- discovery sanction cases. In 2011 there were over 350 e-discovery sanction cases.
Defendants were sanctioned three times more often than plaintiffs The most common misconduct was failure to preserve ESI, followed by failure to produce and failure to produce in a timely fashion.
Preservation and collection of the data in the most forensically sound way is a must.
How the ESI was gathered. Where the ESI was stored. Who had access to it. Establish the chain-of-custody Whether other ESI was also located. Whether a thorough search was conducted. Whether the ESI sought to be introduced was altered from its original state.
Each custodian likely has 2-6 GB of Data 2GB= 14,000 documents Attorney Review Time of 80/docs hour= 175 human hours/ custodian File to Trial= $18,000/GB of ESI
Rule 26 (f) ESI Protocol An ESI Protocol is designed to minimize waste in the review process Nail Down Technical Specs Minimize Counsel s exposure to common ESI Sanctions
In order for document productions to be as reasonably complete as possible, parties should begin first and foremost by drawing and defining all sources of potentially relevant evidence.
IT Custodian Individual Custodian Source Custodian
The purpose of the IT Custodian interview is to identify all computer and archive systems that could contain potentially relevant ESI for the relevant time period of this action.
It is important to be aware of common IT Custodian pitfalls and dangers prior to the interview: Assume that the IT Custodian will be hostile to the interviewer There is no win in this situation for them IT Custodians may fear reprisals from management because: backups may not have been correctly carried out even though regulations require them. IT Custodians may act territorially in protecting ESI from leaving the corporation due to security concerns. It is critical to explain upfront that outside counsel is acting to protect them, not make them the focus of the litigation
Individual Custodians should ideally be interviewed following the IT Custodian interview to identify and memorialize all potentially relevant sources of ESI such as: Laptop and desktop computers External hard drives, CDs, DVDs and USB thumb drives Blackberries, iphones, smart phones Network shared folders Web based email accounts, social media profiles Make sure to compare the computer sources identified by Individuals to those identified by the IT Custodian(s) to identify potential discrepancies.
A source custodian is defined as a computer storage device, such as a departmental shared folder that is believed to contain ESI saved, used or accessed by more than one Individual Custodian and is thereforeimpossible to identify by one Individual Custodian s name. Example : a Sales Department Folder that multiple sales individuals saved sales report Microsoft Excel documents to.
Priority Custodians are defined as custodians reasonably believed to be more relevant to this action than other identified custodians, or Secondary Custodians. Secondary Custodians would be the subordinates of the Priority Custodians that carried out the policy. Example: The Directors and Officers of a company who created a policy that may have contributed to an action.
A method to limit scope of ESI that will be reviewed and produced. Examples: John Smith Earnings Reports Smith within 5 words of Jones
Each review platform requires different load files and costly technical time will result if this key piece of information is not disclosed upfront. Example: Relativity Version 7.0
Each party will produce paper documents (i.e., those documents not kept electronically by a party in the ordinary course of business) in the form of single page, Group IV TIFF, 300DPI, Black & White format.
Excel Spreadsheets shall be produced both in native format and as converted to single page Group IV, 300DPI Black & White TIFF images. The native format production Excel files will be named according to a control number placed before the original file name: E.g. ABC00000001_Reports.XLS
Email may be easily de-duplicated so that litigants do not need to pay outside counsel to review 300 copies of the same email.
Discovery will be limited in scope to ESI in the parties custody, possession or control beginning on Month Date, Year and ending Month Date, Year.
The production in this action of any electronically stored information or other information that is subject to a claim of privilege shall be deemed to be inadvertent and to be without prejudice.
Early Case Assessment Technology Native File Review/TIFF responsive only All TIFF Review is the most expensive method
Services Quantity Price 3rd Party Total Full TIFF Processing 50GB $800/GB $40,000.00 Hosting for 1 Year 50GB x 12 Mos. $30/GB $18,000.00 ESTIMATED TOTAL $58,000.00
Services Quantity Price 3rd Party Total Processing Native Review 50GB $400/GB $20,000.00 Production Set Creation 1GB / 7,000 docs $800/GB $800.00 Hosting for 1 Year 50GB x 12 mos. $18,000.00 ESTIMATED TOTAL $38,800.00