national business institute seminar operate in compliance with frcp rules changes and eliminate the...

National Business Institute SeminarOperate in Compliance with FRCP Rules Changes and Eliminate the Fear Factor

Charles SkamserVice President of Business DevelopmentTrial SolutionsEmail: [email protected]: 208-949-0301

12/18/2007 ()NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor

Standard DisclosureWe are not giving legal advice


NEW E-DISCOVERY FRCP RULES

AgendaWhat’s the Big DealRule 16 and 26: Preliminary Conferences Rule 26: Changes for Reasonably Accessible Data Rule 26: Post Production Privilege Assertion Rule 33 and 34: Specification of Form Rule 45: SubpoenaSummaryQuestions and Answers

Best Practices are Now Potential Malpractice



What’s the Big Deal?First Real Change to FRCP in 38 YearsPurpose was to account for increase in ESI without adding undo

burden and/or associated costsForce Corporations to Do More eDiscoveryExample of $1B Corporation

Average of 556 Cases per Year 50% or 278 Required eDiscovery of Some Type That all changed on December 1, 2006, when Rules 16 and 26

were amended to provide the court early notice of e-discovery issues.

Under Rule 16(b), parties must “meet and confer” at least 21 days before the scheduling conference which, in turn, must occur within 120 days of filing a lawsuit.

Rule 16(b) further states that the scheduling order must include “provisions for disclosure or discovery of electronically stored information”, while Rule 26(f) requires that parties “discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan.”




What’s the Big Deal?Corporations can no longer leave e-discovery for later in the

process.Thanks to the FRCP rule changes, they must now define and

share their e-discovery plans at the “meet and confer” which occurs within the first 99 days of a case.

Corporations are now obligated to do e-discovery on all 556 Cases.




LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late OctoberOne year later – 44%of corporate counsel report companies being

unprepared for onset of revised federal rules for e-discovery20% of corporate counsel were unaware of whether or not their

company was prepared for the amendments to the federal rules prior to implementation.

Top Challenges Communicating with IT departments (27% ) Finding budget to put systems and tools into place (25%) Getting buy-in from upper management on the importance of

litigation preparedness (21%) Finding e-discovery staff with a good mix of IT and legal

expertise (9 %)




LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late OctoberMisperceptions of the Rules

The survey also suggests that confusion still exists regarding certain elements of the new rules. For example, 70% of corporate counsel attorneys believe that the rules require them to produce documents in their “native file” format.

This is an incorrect assumption, and it is up sharply (up 27 %) from last year’s response to the same question.

Impact on Workload and Cost While provisions of the new federal rules require early engagement

by parties – particularly to discuss, agree upon and execute e-discovery, 76% of corporate counsel attorneys report that the new rules have not helped trim costs nor reduce the scope of discovery work for their companies.

In fact, survey findings show that the new FRCP have created an increase in discovery workload for corporate America in most cases.

For example, 73 % of survey respondents said that their company has seen an increase of up to 20 %in discovery workload as a result of the new rules since their implementation last year.




LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late OctoberPositive Steps Taken

Despite challenges and misconceptions, many corporations appear to be taking the fundamental steps necessary to ensure their companies are compliant with the new rules. For example, 82%of respondents said their company has a document retention policy, two-thirds said they have implemented a formal legal holds process and more than 40 % said they have conducted employee training for compliance this year. Further, a quarter said they have hired an e-discovery counsel or ESI coordinator.

Additionally, just over half of respondents said they have taken more elements of the discovery process “in-house” as a way to control costs and managementof the discovery process.




Thus far, approximately 105 e-discovery opinions were reported since December 1, 2006. The major issues involved in these cases break down as follows:25% of cases addressed discovery requests and motions to

compel 24% of cases addressed spoliation/sanction 23% of cases addressed issues involving the form of production 9% of cases addressed preservation/litigation holds 7% of cases addressed attorney-client privilege and waiver 6% of cases addressed production fees 6% of cases addressed admissibility of electronic evidence




The Significant CasesCourt Orders Defendant to Preserve and Produce Server Log Data Stored in RAM

Columbia Pictures Industries v. Justin Bunnell , No. 06-1093 FMC (JCx) (C.D.Cal. May 29, 2007), aff’d. 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007). In a suit alleging copyright infringement, the plaintiff sought preservation and

production of user IP addresses along with dates and times of user requests. The defendant argued that this data was temporarily stored in random access memory (RAM) and did not constitute electronically stored information (ESI.) The court held RAM data constituted ESI and was discoverable.

Magistrate Finds E-mail Exhibits Inadmissible and Outlines Standards for Electronic Evidence Admissibility Lorraine v. Markel Am. Ins. Co. , 2007 WL 1300739 (D. Md. May 4, 2007).

Plaintiffs brought suit to enforce an arbitrator’s award. The judge dismissed both parties’ dispositive motions without prejudice to allow resubmission with evidentiary support. The court held there is a five-point test in determining the admissibility of electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the “best evidence”, and 5) not unduly prejudicial. The court stated, “it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on thefirst try.”




The Significant CasesCourt Orders E-Mail Search and Production at Producing Party’s Own Cost

Peskoff v. Faber, 2007 WL 530096, (D.D.C. Feb. 28, 2007). In a suit alleging fraud, breach of fiduciary duty, breach of contract, and

conversion inter alia, the plaintiff argued that a previous electronic document production contained unexplained time gaps, suggesting problems with the original production. As a result, the plaintiff moved to compel discovery of additional e-mail. The court found in favor of the plaintiff, holding that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible.

Court Considers Sanctioning Attorneys for Discovery Abuses Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28,

2007). During one of the last days of a patent infringement trial, cross-

examination of the plaintiff's witness revealed the existence of relevant e-mails that the court later held were "the tip of the iceberg" in an attempt to conceal over 200,000 pages of relevant e-mails. The judge characterized the discovery abuses as, "an organized program of litigation misconduct" and ordered the plaintiff's attorneys to demonstrate why they should not be sanctioned, without use of documents protected by the attorney-client privilege.




The Significant Cases Court Denies Motion to Compel Deleted E-mail Stored on

Backup Tapes Oxford House, Inc. v. City of Topeka , 2007 WL 1246200 (D.

Kan. Apr. 27, 2007). The plaintiff brought suit alleging that the defendant

improperly denied several conditional housing permits. In responding to the plaintiff’s motion to compel, the court determined there was no obligation to preserve overwritten e-mails before the likelihood of litigation. Moreover, the court used a cost-benefit balancing test to find that the production of the requested ESI would be unduly burdensome given the cost and likelihood of retrieval



Rule 16 and 26: Preliminary Conferences

Rule 16 and 26: Pretrial ConferencesIn any action, the court may in its discretion direct the attorneys

for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as expediting the disposition of the action; establishing early and continuing control so that the case will

not be protracted because of lack of management; discouraging wasteful pretrial activities; improving the quality of the trial through more thorough

preparation, and; facilitating the settlement of the case.

Changes in FRCP Rules


PRELIMINARY CONFERNCESS

Rule 26(f)The new Rule 26(f) requires parties to meet early in the litigation

process and confer about discoverable ESI and issues related to it.

During this initial meeting, parties will discuss the discovery plan, which includes the following: What ESI will be relied on by the litigants How each party stores its ESI In what form the information will be produced The accessibility of the information Issues related to privileged ESI

Changes in the FRFCP


PRELIMINARY CONFERNCESS

Rule 26(f) CommentaryThe necessity for proficient ESI management becomes evident at this

initial meeting. Attorneys for the litigants are responsible for knowing the details of their clients' information systems and retention policies.

They will also need to know the ESI that their clients will rely on for claims or defenses and whether that ESI is accessible or potentially contains privileged information.

Classifying information as "litigation sensitive" or "privileged" and indexing it for search and retrieval are information management steps that will help in this phase of litigation.

Knowing where information is stored and processed not only will assist in keeping costs down but also will offer an advantage by providing some certainty when responding to the initial questions posed pursuant to Rule 26(f).

The agreement made by the parties under Rule 26(f) will be adopted in a court order following a Rule 16(b) pretrial conference. Therefore, it is important to be able to answer these preliminary questions with some certainty.

Changes in the FRFCP



Rule 16 and 26: Scheduling and PlanningExcept in categories of actions exempted by district court rule as

inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time to join other parties and to amend the pleadings; to file motions; and to complete discovery.




Rule 16 and 26: Scheduling and PlanningThe scheduling order may also include

modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;

provisions for disclosure or discovery of electronically stored information;

any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production;

the date or dates for conferences before trial, a final pretrial conference, and trial; and

Any other matters appropriate in the circumstances of the case.The order shall issue as soon as practicable but in any event

within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.




Rule 16: Subjects for ConsiderationAt any conference under this rule consideration may be given,

and the court may take appropriate action, with respect to (1) the formulation and simplification of the issues, including

the elimination of frivolous claims or defenses; (2) the necessity or desirability of amendments to the

pleadings; (3) the possibility of obtaining admissions of fact and of

documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence;




Rule 16 and 26: Subjects for ConsiderationAt any conference under this rule consideration may be given,

and the court may take appropriate action, with respect to (5) the appropriateness and timing of summary adjudication

under Rule 56; (6) the control and scheduling of discovery, including orders

affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through 37;

(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(8) the advisability of referring matters to a magistrate judge or master;




Rule 16: Subjects for ConsiderationAt any conference under this rule consideration may be given,

and the court may take appropriate action, with respect to (9) settlement and the use of special procedures to assist in

resolving the dispute when authorized by statute or local rule; (10) the form and substance of the pretrial order; (11) the disposition of pending motions; (12) the need for adopting special procedures for managing

potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;




Rule 16: Subjects for ConsiderationAt any conference under this rule consideration may be given, and

the court may take appropriate action, with respect to (14) an order directing a party or parties to present evidence early

in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and

(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representatives be present or reasonably available by telephone in order to consider possible settlement of the dispute.




Rule 16: Final Pre-Trial ConferenceAny final pretrial conference shall be held as close to the time of

trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

Rule 16: Pre-Trial OrdersAfter any conference held pursuant to this rule, an order shall be

entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.




Rule 16: SanctionsIf a party or party's attorney fails to obey a scheduling or pretrial

order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.



Rule 26: Reasonably Accessible Data

Rule 26(a): Provisions Governing Discovery; Duty of DisclosureParty Must Provide Description by Category and Location of All

Documents, ESI, and Tangible Things In Their Control and Which They May Use to Support Their Case

Rule 26(b)(2)(B): Discovery Scope and Limits Party Need Not Provide ESI From Sources That Party Identifies as

“Not Reasonably Accessible” Because of Undue Burden & Cost (Good Cause Exception)

Rule 26(b)(2)(C): Limitations on Discovery If Discovery Sought is Unreasonably Duplicative or Cumulative or

Obtainable From More Convenient, Less Burdensome Source If Party Seeking Discovery Has Had Ample Opportunity to Obtain

Information SoughtIf Burden or Expense of Proposed Discovery Outweighs The Likely

Benefit, Taking Into Account Needs of Case, Amount in Controversy, Parties Resources, Importance of the Issues at Stake and Importance of Proposed Discovery In Resolving Issues




Rules 26: Information Technology PerspectivePeriodic reassessment / reevaluation of requirements & selection

criteria used (Criteria needs to be well defined- include both e-mail & IM).

Senior Executive understanding and buy in is critical.Procedures to address changes in criteria, test & implement.Effort needs to be coordinated between Legal, IT, Audit.Backups –retention guidelines need to be explicitly spelled out in

writing; Storage and space issues need to be addressed.Include requirements in new employee awareness training &

notification to all employeesPeriodic testingAuto back up without employee intervention – key word scan.Centralization – Do you want to utilize technology to centrally

archive, index, and make the e-mail searchable, accessed easily, and integrate with existing backup system?




Rules 26: Subjects for ConsiderationWhat is Hard to Access Today May be Easy TomorrowWhat is Easy to Access Today May be Hard TomorrowCourts May Require NRA Log Similar to Privilege Log: Problem Is

You Know Content of Privileged Data; You Do Not Know Content of NRA, Only Source or Type of Data

Distinguish Between “Reasonably Foreseeable as Relevant” and “Reasonably Foreseeable as Discoverable”

Courts Have Ability to Shift Costs for NRARequesting Party May Offer to Share or Pay Costs: This is Not

Deciding Factor – Also Have to Consider Responding Party’s Costs and Burden in Reviewing Info for Relevance & Privilege



Rule 26: Post Production Privilege

Rule 26(b)(5): Post Production PrivilegeNew Amendments define a procedure for resolving claims of

privilege a party makes to a communication that, during discovery, it has inadvertently disclosed to another party.

Prior to the December 2006 Amendments to the FRCP, the previous sole guideline for lawyers receiving inadvertently disclosed communications in a federal case was the requirement of Model Rule 4 (As amended from Formal Opinions 92-368 and 94-382) to notify the sender of the disclosure. With no restriction on the information's use, lawyers were free to use the contents of the communication, even if privilege had not been waived. The resulting loophole in privilege rules opened the door for bizarre results.




Rule 26(b)(5): Post Production PrivilegeIf information is produced in discovery that is subject to a claim

of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.

Under this rule, a receiving party must stop all use of inadvertently disclosed information subject to a claim of privilege once the producing party provides notice of such a claim.

Rule 26(b)(5)(B) thus, on its face, represents a middle ground between the strict protections of Formal Opinions 92-368 and 94-382 and the freedom of use condoned by Model Rule 4.




Rule 26(b)(5): Post Production PrivilegeEthics aside, the plain language of the rule places the initial

burden on the producing party, not the receiving party. Therefore, the recipient has no obligation to act until informed of the producing party's claim to privilege.

Once the producing party has made its claim, however, the burden on the receiving party is much like those of the withdrawn Formal Opinions. The receiving party must immediately stop all examination of the documents, then must return them, destroy them, or submit them to the court under seal. Here the rule anticipates, perhaps for purposes of saving time, what the instructions of the sending lawyer might have been under the Formal Opinions.

Finally, as suggested in Formal Opinion 94-382, the receiving party may request a determination of the privilege claim from the court.



Rule 33 and 34: Specification of Form

Rule 33(d): Interrogatories to PartiesRule 33(d) is amended to specify that electronically stored

information may qualify as appropriate business records from which an answer to an interrogatory may be derived or ascertained.

Rule 34(b): FormRule 34 (b) is amended to permit the requesting party to designate

the form or forms in which it wants electronically stored information (ESI) produced.

The rule recognizes that different forms of production may be appropriate for different types of electronically stored information (ESI).

Using current technology, for example, a party might be called upon to produce: Word processing documents (MS Word, Word Perfect) E-mail messages (Outlook, Lotus, Hotmail, Gmail) Electronic spreadsheets (Excel) Different image or sound files (i.e. very long list) Material from databases (Oracle, SQLServer, MSAccess, Lotus)




Rule 34(b): FormIf Requesting Party Does Not Identify “Form,” Party Must Produce ESI In Form In

Which It Is Ordinarily Maintained Or Form That Is Reasonably Usable, But May Not Produce ESI In Form Less Useful Or Searchable Than Form In Which It Is Normally Maintained.

Subjects for ConsiderationHow Will Paper Documents Be Produced?

In spite of the fact that electronic documents have taken the front seat in discovery, paper documents still exist and must be considered during the production process. Ultimately paper and electronic documents will be used in the same manner throughout the post-production discovery process and they should be produced and integrated in a way that will facilitate their use. Some questions to be answered might include:

Will you want hard copies or images produced to you? Images can be loaded directly into a database without the issue of receiving, storing and imaging large amounts of paper.

Will the producing parties be scanning and OCRing (Optical Character Recognition) the paper document productions? If so, reaching an agreement that each party will produce images and OCR text for their production and that the parties will share in the costs may be an option that will save all parties time and money.




Subjects for ConsiderationWhat Types Of Electronic Documents Make Up The Data Set?

There may be word processing files, spreadsheets, email, databases, drawings, photographs, data from proprietary applications, website data, voice mail, and much more. To understand what data should be produced in light of the issues specific to the subject case, it is necessary to understand what information is available in the different software applications (or types of documents).

Such preparation mitigates the risk of discovering too late that the agreed upon production format is inadequate to provide the discovery needed to address and understand the issues in the lawsuit.




Subjects for ConsiderationWhat Formats For The Production Documents Provide Access To

The Data Necessary To Best Address Issues In The Case? To be sure the necessary data and information is produced in

order to allow thorough analysis of the discovery documents, it is critical to understand how different types of documents are impacted by different processing and production format option

For example, formulas are not viewable when spreadsheets are converted to image; blind copyees and the date read are not available when emails are converted to image.

The determination of whether or not that type of information is necessary should be made early in the discovery process. Considering in advance what options are available and determining the most useful production format for each data type is essential for negotiating production options.




Subjects for ConsiderationWhat Types of Media Should Be Used To Produce And Receive

Production Documents? There is a wide variety of media on which data can be stored and

delivered. These might include CDs, DVDs, portable (external) hard drives, or flash drives. The choice of media can significantly impact the amount of time and expense that will be involved in analyzing and processing the data.

It is possible that a particular type of hardware will be necessary in order to access and process the data. For example, a hard drive can hold a significant amount of data but will require a certain level of expertise and specific hardware to handle properly.

On the other hand, CDs are universally accessible but do not hold much data. If a large amount of data is being produced, it may be better to receive the data on a hard drive and invest in the expertise and hardware necessary to handle that medium than to spend the time handling tens or hundreds of CDs individually.



Rule 45: Subpoena

Rule 45 (d): Subpoena (1)(A) A person responding to a subpoena to produce documents

shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(1)(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

(1)(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.

(1)(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.



Summary

Rule 16 and 26: Preliminary Conferences Establishes Guidelines to Meet and Discuss How to Handle ESI

Rule 26: Changes for Reasonably Accessible Data Establishes Guidelines to What Data Has to be Accessible /

ProducedRule 26: Post Production Privilege Assertion

Establishes Guidelines for What is Considered PrivilegedRule 33 and 34: Specification of Form

Establishes Guidelines for the Form in which ESI has to be produced

Rule 45: SubpoenaEstablishes Guidelines for Subpoena of ESI

Changes to FRCP


NEW E-DISCOVERY FRCP RULESChanges to FRCP


Questions and AnswersChanges to FRCP


RECENT DECISIONS IN E-DISCOVERY

Required Form of Production What Is Easily Accessible Data Versus Inaccessible

Data Privilege Issues Imposition of Sanctions


PRESERVING DATA

Backup Tapes Collection Chain of Custody Desktops and Laptops Servers Portable Phones and Digital Assistants Other Media


ENSURING E-DISCOVERY COMPLIANCE

AgendaPreservation Notices Meet and Confer How to and What to Ask for in Production Requests Protective Orders How to Structure Protocols Using Experts, Neutrals and Special MastersSummaryQuestions and Answers



Nothing in the December 2006 amendments to the FRCP changed the familiar common-law and statutory duties to preserve data. What the amendments did do is highlight the challenges faced in meeting those obligations when it comes to electronically stored information (“ESI”).

During the next hour, we will present and discuss the relationship between data preservation and data collection and how to avoid doing the right things the wrong way or perhaps failing to do them altogether.


THE FIRST 99 DAYSEnsuring e-Discovery Compliance

Phase 1 - Notification

Phase 2 –Early Case Analysis

Phase 3 – Prep for Meet & Confer

Day 99

Review Document Retention Policy

Notify Data Custodians

Issue Litigation Hold Notices

Interview Custodians

Determine scope and cost to Identify and Preserve

Determine scope and cost to collect

Document procedures

Collect data from all sources

Cull – move irrelevant data

Analyze – custodians, search terms, dates

Advanced Analysis

Determine scope and cost to process and/or review

Document procedures

Determine case strategy

Finalize – custodians, search terms, dates

Determine final timeline and costs

Define redactions and refine duplication procedures

Document Discovery Plan – Form 35

Day 1


PRESERVATION NOTICES

The Preservation Letter / NoticeIt is becoming commonplace for a party who seeks information in

a dispute to issue a preservation letter to the adverse party that it will eventually be seeking information from.

Many larger entities receive letters such as these on a regular basis. It is the position of this body that these letters should be viewed as an opening offer in a negotiation process that will ideally lead to a mutually agreed upon case management order that a judge or other authority will endorse.

Both sides can benefit from early, upfront discussions regarding the scope of preservation.

Ensuring E-Discovery Compliance



The Importance of a Realistic Preservation NoticeWhen requesting that the other side preserve certain electronic

data, it is vitally important that the request be tailored to cover only the documents that are important or relevant to one's case. If an extremely overbroad preservation letter is sent, it is possible that the judge or other authority presiding over the case will see this as a bad faith litigation tactic and not as a good faith offer to negotiate. In this case, it is possible to forfeit a favorable negotiation position.

When responding to a preservation letter, it is important to avoid some common mistakes. For example, ignoring a preservation letter is not a particularly good idea, nor is sending off a retaliatory letter meant to inflame the situation. Consider sending back a "counter offer" outlining what preservation steps will be taken, and detailing the costs involved with full compliance as well, perhaps suggesting an in person "meet and confer." Most importantly, this should be viewed as a negotiation process.




Challenging a Preservation NoticeBecause the duty to preserve is rather amorphous and perhaps

meant to be over-inclusive as a matter of public policy, it is important to carefully weigh the decision to contest a preservation letter if an agreement cannot be reached.

There are many costs, some apparent and some not, in a long and drawn out mini-trial regarding the specifics of preservation.

However, it has been suggested by some authorities in the e-discovery arena that a genuine dispute over the scope of preservation prior to the filing of a complaint might be an appropriate subject for a declaratory judgment action.




The Litigation Hold NoticeIn a typical scenario, receipt of a complaint is followed by the issuance of a

litigation hold notice to employees and relevant third parties.A monitoring protocol is put in place a la′ Zubulake V. (See Zubulake v. UBS

Warburg LLC , 229 F.R.D. 422 (S.D.N.Y. July 20, 2004)Consequently, data custodians will be alerted to the need to retain potentially

relevant ESI and ensure it is not destroyed, deleted or altered. Corporate IT is hopefully reviewing routine computer operations to determine whether any settings need to be changed or policies altered to prevent the loss of data. (See FRCP 37).

Counsel is busy preparing initial disclosures and making decisions regarding data accessibility. (See FRCP 26(a)(1)(B) and 26(b)(2)(B)).

A team is dispatched to interview key custodians to determine where to find the ESI that is relevant to the litigation.

Custodians are reminded to preserve potentially relevant ESI, wherever it resides; workstation, laptop or on the thumb drive casually lying on their desk.

They are provided with a contact name in the event they recall an additional data source later. Depending on the scope of the litigation, all or some of these steps were taken in a short time frame in preparation for the FRCP 26(f) meet and confer during which counsel will be obliged to discuss the electronic discovery issues that impact the litigation. What next?



MEET AND CONFER

With the new Federal Rules of Civil Procedure (FRCP) now in place, the meet and confer conference is more critical than ever.

The changes to Rule 26(f) confirm that when ESI is involved in civil litigation, parties cannot over-plan or over-communicate. This article will explain the various information gathering questions and issues that counsel should discuss during the pre-trial stages of a case in order to ensure a textbook handling of e-discovery matters.



MEET AND CONFER

What do you need to discuss with your opponent?As the Committee Notes to Rule 26(f) succinctly state, the purpose of

the amendment to Rule 26(f) is to "direct the parties to discuss discovery of electronically stored information during their discovery-planning conference."

This "early case assessment" rule establishes a timeframe for discussing electronically stored information (ESI) issues early on in the case. However, the specific provisions of Rule 26(f) do not dictate a precise formula for electronic discovery planning. Rather, the Rule directs the parties to meet as soon as practicable (but no later than 21 days before a scheduling conference) to develop a plan that addresses essentially any and all foreseeable discovery issues.

When you sit down face to face with your counterpart on the other side, what topics will you discuss? To what level of detail will you delve? How long will the discussion last? The FRCP provisions are silent when it comes to the specifics, so it is up to the litigationteams to collaboratively design their own discoveryframework.



MEET AND CONFER

What do you need to discuss with your opponent?At a minimum, attorneys should use the Rule 26 conference as an

opportunity to: Clarify expectations regarding document preservation, search

strategies, collection, keyword lists, processing, and cost-allocation. Establish which sources of data they expect to receive from their

opponent, and the format in which they expect to receive it. Discuss how both sides will handle privileged documents. Raise issues pertaining to volume, cost, time, and other factors

affecting the accessibility and burden of producing the data in their client's possession or control.

Besides seeking to develop a discovery plan, proficient litigators will take a strategic approach to these seemingly innocuous meetings. Counsel should take this time to learn the opponent's perspective on e-discovery and exactly how savvy they are when it comes to the issues surrounding electronicallystored information.



MEET AND CONFER

Attorney Check List for Meet and ConferPreservation Practices

What is being done to preserve ESI? Is a protective order necessary? Scope of Discovery

Will there be any deviations from the default initial disclosures specified in Rule 26(a)?

What file types and time range is the opposing party seeking? Who are the main data custodians the opposing party is interested in? What will be the timing for exchanging discoverable ESI?

Accessibility What type of data is the opposing party interested in? Backup tapes? Hard

drives? Servers? Removable media? Deleted data? How easy will it be to access this data? Will the use of an e-evidence expert be necessary?

Production of Metadata What fields will be exchanged for the various file formats?

Costs & Burdens Who will bear the costs associated with gathering, restoring, and producing

the ESI?



MEET AND CONFER

Attorney Check List for Meet and ConferForms of Production

In what format or formats will parties produce the ESI be? Privilege Issues & Waiver

How will parties handle inadvertently produced privileged documents?

Variations from FRCP rules Are there any local rules that apply in the jurisdiction?

Inventory of opponent's IT infrastructure Which operating systems and software packages were used to

develop key data? Are those systems still in use? What are the opponent's document retention policies? Are they

being enforced? Other

Is there any other information that may be important to the e-discovery activity in the case?



MEET AND CONFER

What is the judge's role?Just as Rule 26(f) was amended to require the parties to discuss early

electronic discovery issues at the outset of litigation, Rule 16(b) was amended to call for the results of such discussions to be reported to the judge. Specifically, the rule states that: "...the district judge, or a magistrate judge when authorized by

district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time ... (5) provisions for disclosure or discovery of electronically stored information...“

Practitioners should use the Rule 16(b) scheduling conference as an opportunity to ensure the court understands the potential technological issues involved in collecting, reviewing, processing and producing any electronic data requested by the opposing party. The purpose of this rule, according to the Committee Note, is "to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur."



MEET AND CONFER

Use Meet and Confer to Your AdvantageBy directing counsel and the court to address electronic discovery

matters early on, parties have the opportunity to advocate through education, thereby gaining credibility with the court and providing an opportunity for counsel to begin steering electronic discovery decisions in their clients' favor.

To that end, counsel may use the Rule 16(b) scheduling conference to, at least preliminarily, flag concerns regarding any unresolved issues including accessibility, production format, production of specific metadata fields and handling of inadvertently produced privilege and trial-preparation protected information.

Moreover, the conference gives counsel an opportunity to raise concerns about their opponent's preservation protocols. Lastly, counsel should come prepared with a potential timeline for discovery, including realistic timeframes for completing the collection, review, and production of the electronic data.

As with the Rule 26(f) conference, counsel should not hesitate to enlist the help of an e-evidence expert with the background and training to effectively articulate the issues.



PRODUCTION REQUESTS

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other PurposesIn General

A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or

controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, orsample the property or any designated object oroperation on it.



PRODUCTION REQUESTS

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other PurposesProcedure

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.



PRODUCTION REQUESTS


(2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must

respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

(C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.



PRODUCTION REQUESTS


(2) Responses and Objections. (E) Producing the Documents or Electronically Stored Information. Unless

otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual

course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the sameelectronically stored information in morethan one form.

Non Parties As provided in Rule 45, a nonparty may be compelled to produce documents

and tangible things or to permit an inspection.



PRODUCTION REQUESTS

Checklist of Action ItemsMap your Information TechnologyInfrastructureDevelop a Data InventoryPrepare a Litigation Response PlanModify Retention PoliciesConsider Technology OptionsInventory your Litigation PortfolioEnforce your Retention PolicyTrain your workforce



PROTECTIVE ORDERS

A protective order may be sought by any person against whom discovery is sought, party or nonparty.

Burden is on person seeking protective order to show that it is necessary "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.

Types of protective orders available:"That discovery not be had." (Rule 26(c)(1).)"That the discovery may be had only on specified terms &

conditions, including a designation of the time or place." (Rule 26(c)(2).)

"That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters." (Rule 26(c)(4).)

"That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way." (Rule 26(c)(7).)



PROTECTIVE ORDERS

The Zyprexa Injunction FSupp2d, No. 07-CV-0504, 2007 WL 460838 (EDNY Feb. 13, 2007) demonstrates that a protective order does not guarantee that sensitive documents will not be disclosed improperly.

And once documents are disclosed, there may be enforcement and free speech implications that prevent an injunction from being issued to enjoin any further dissemination.

Corporate litigants therefore should: Be warned that sensitive documents may not be fully protected from

disclosure by a protective order.Be advised that the process of producing documents in a litigation is anything

but routine. Document productions should be accorded heightened attention and litigants must determine at an early stage how sensitive the documents are and what the consequences of their disclosure would be.

Be vigilant from the outset and have a plan to protect documents from improper disclosure.

Provide the court with concrete ideas to prevent dissemination of documents while simultaneously affording the adversary reasonable access to the documents.



PROTECTIVE ORDERS

Corporate litigants therefore should: Insist on as much protection as possible from the court to protect the

confidentiality of documents. Size-up their adversaries, including opposing counsel, experts and consultants

to determine if there is a greater risk of disclosure. This requires an added level of due diligence as litigants must closely examine the background of everyone who will have access to the documents. Ask the pertinent questions: Does plaintiffs counsel have a track record for trying his case in the press? Has opposing counsel or any of their consultants or experts ever been sanctioned for violating protective orders? Does the expert or consultant have a track record of communicating with the media? Ask around. This type of due diligence may provide the litigant with a basis for seeking added protection from the court.

Critically assess the level of interest in the community, and among public interest groups and reporters. This will provide a sense of the environment surrounding the issues in the case and help to assess the risk of improper disclosure.

Explore methods to electronically protect documents from improper disclosure. This includes consulting with an electronic discovery vendor to determine the most secure way to produce documents. The vendor may be able to use software to withhold certain privileges, such as the ability to print, copy, or forward a given document. In the end, however, no technology can guarantee that documents will not be improperly disclosed.

Where there's a will, there's a way, and one determined to distribute documents will likely find a way to do so



PROTECTIVE ORDERS

Courts should: Give serious thought to the content of protective orders and spell out the

consequences of violating the order. Be willing to impose rigorous requirements to protect documents. Courts

should be creative in this regard and consider suggestions from both sides of the case.

Admonish litigants at the outset that there will be severe consequences for any deliberate violation of a protective order.

Limit access to documents to as few individuals as is absolutely necessary and require that each party explicitly identify who will have access to the documents.

Hold attorneys accountable for the actions of their experts and consultants through discovery sanctions. Such accountability would deter attorneys from turning a blind eye to experts or consultants who they suspect may disclose confidential documents. It would also discourage lawyers from using experts or consultants to disseminate documents to the media or on the internet to garner publicity for the case and to put pressure on the opposing litigants to settle -- a phenomenon that has been known to occur in large commercial litigation.

Impose harsh sanctions on persons that deliberately violate protective orders.



HOW TO STRUCTURE ORDERSEnsuring E-Discovery Compliance


EXPERTS, NEUTRALS AND SPECIAL MASTERS

ExpertsWhen an expert is an eyewitness to material events in a case, or a party to an

action, as opposed to being hired in anticipation of litigation, no work-product protection exists. E.g., a doctor who provides emergency treatment to an accident victim may be deposed as to the condition of the patient.

Experts hired to assist in preparation for trial are treated differently depending on whether they will be called to testify at trial. (1) A party may learn by interrogatories the names of the experts his

opponent expects to call, the subject matter on which the expert is expected to testify, and the substance of the facts and opinions to which the expert will testify.

(2) Facts or opinions may be obtained from an expert who has been retained in anticipation of litigation but who is not expected to testify only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." (Friedenthal § 7.6; Wright § 81)

In addition to testifying and non testifying experts, courts have also identified a third category, informally consulted but not retained. Neither the opinions or identity of an informally consulted but unretained expert are discoverable without a showing of special circumstances.

This is akin to a work-product type privilege.




Expert ChecklistGet them the pleadingsDefine the scope of their effort ASAP to limit costsInvolve them in drafting pleadings, sitting in on relevant

depositionsGive them adequate notice of deadlines and court datesDon’t write their opinionsAccept “the truth” as they report itRespond promptly to their messages/queriesDo not discuss substantive matters via emailDon’t write a “draft” report until discussed by phone




When you Hold the Smoking GunDon’t forget to designate your expertDon’t forget to lay a foundation for TestimonyEstablish chain of custodyGet your expert’s credentials in somehow, even if other side

stipulates to expertiseUse familiar analogies and images

When the Smoking Gun is Pointed at YouMuddy the waters (only ethically!)Challenge the expert’s credentials?Challenge the acquisition or analysis?Remember that analysis is interpretedWho else had access?Could evidence have been altered?Did the other side “stomp on the evidence?”




When the Smoking Gun is Pointed at YouWere you properly noticed about the testimony?Ask no questions that you do not know the answer toPrepare your cross-exam with YOUR expertIdentify any weaknesses, even if you can’t disprove evidenceBe careful going beyond your knowledge

General ProtocolKeep expert testimony short as possibleKeep it clearFollow a script – don’t ad libDon’t confuse your own expertPREPARE your expert



Summary

Preservation Notices Meet and Confer How to and What to Ask for in Production Requests Protective Orders How to Structure Protocols Using Experts, Neutrals and Special Masters



Questions and AnswersEnsuring E-Discovery Compliance


PRODUCING ELECTRONIC DATA

Production Format De-duplication Signature Analysis Hash Analysis Data Carving File Fragments Meta Data Privilege Issues


CONDUCTING FORENSIC ANALYSIS

How to Assess Compliance with Discovery Requests and Completeness of Produced Data Registry Analysis Event Logs Link Files Wiping Programs Detecting Data Hiding Techniques Assessment of Preserving and Production Techniques

Metadata Analysis: Finding, Interpreting and Evaluating File Systems Host File Metadata


COMPLIANT DATA RETENTION

AgendaRetention Issues Destruction Issues Systems Data Structures and OrganizationSummaryQuestions and Answers


RETENTION ISSUESCompliant Data Retention


RETENTION ISSUES

Business RequirementsWhat do you need to run the business

IT Requirements / CapabilitiesCompliance with the Changes to the FRCP

Ignorance is no longer a justification for not retaining dataRetain or Destroy Conundrum

If you keep it, it is discoverableIf you Destroy it in an unreasonable manner (i.e. too short of a

timeframe for your industry), the court may apply sanctions.

Compliant Data Retention


Retention Issues

Recommended Approach to Retention PolicyGet the Support of your Executive Management (i.e. the Board of

Directors)Hire an Expert to Guide the ProcessCreate a Task Force in every Pertinent Department

Business IT Legal HR

Set ExpectationsInvolve Everyone in the Company though Seminars and TrainingHave a Tracking SystemMeet every Month / Quarter to Review Compliance

Compliant Retention


DESTURCTION ISSUES

Rule 37(f) provides a statutory framework upon which organizations can now begin to model their policies of destroying electronic information in the ordinary course of business with less fear of fines and sanctions.Organizations wishing to implement a policy of data destruction

through the routine operation of electronic information systems should first establish a well-defined destruction policy and clearly identify the legitimate business reasons that support the policy.

This policy should be implemented on a consistent basis, across all sources of electronically stored information. Failure to do so could undermine the stated legitimate business reasons for the policy.

Applying the policy on a consistent basis requires knowing what electronic information you have, and where you keep it. To that end, organizations should maintain an updated database showing all sources of electronically stored information, the type of information stored, and details, such as filenames and date ranges.

Organizations must also establish the means by which they can quickly and adequately implement "litigation holds" on any electronic information that might be relevant to actual orreasonably likely litigation.



DESTURCTION ISSUES

Rule 37(f) provides a statutory framework upon which organizations can now begin to model their policies of destroying electronic information in the ordinary course of business with less fear of fines and sanctions.Organizations must also establish the means by which they can quickly and

adequately implement "litigation holds" on any electronic information that might be relevant to actual or reasonably likely litigation.

I recommend establishing and communicating a company-wide litigation hold policy that includes employees alerting corporate legal counsel of facts that are "reasonably likely" to lead to litigation, and, ideally, utilizing a document retention system that allows for the "tagging" of electronic records that are deemed subject to the litigation hold so as to prevent the inadvertent destruction of discoverable records.

Organizations should also designate a single management-level employee to serve as the company's representative on the issue of the organization's destruction policy -- both the business reasons that support such policy as well as the measures undertaken in order to meet litigation hold requirements. This person will then serve as the organization's spokesperson on the facts that demonstrate "good faith" in connection with the organization's destruction policy.



SYSTEMSCompliant Data Retention

FirewallRecords Retention SystemeDiscovery Systems

EDD SystemsOnline Review SystemsCase Management


SYSTEMSCompliant Data Retention


DATA STRUCTURES AND ORGANIZATIONSCompliant Data Retention


DATA STRUCTURES AND ORGANIZATIONS

Additional Issues for ConsiderationNative vs. Other File Format

Example: Actual Email vs. a TIFF Copy Native File Format is the Recommended Format

Metadata In some cases the “Smoking Gun” may be in Metadata Worst Cast is Metadata has to be retrieved and reviewed

Embedded Files Anything attached to another File Example: An Excel Spreadsheet attached to an email Embedded files are probably where all the “good stuff” is

located



SUMMARY

Retention Issues Destruction Issues Systems Data Structures and Organization



QUESTIONS AND ANSWERSCompliant Data Retention