Speaker: Steven Teppler, Esq. The goals of opposing counsel are in many respects the same as those of RIM professionals: ensure that records are accessible, accurate and produced on a timely basis. Your interests, however, are very different because, as a RIM professional, you seek to serve your organization while I, the opposing counsel (acting on behalf of my client), represent the "other" side in a dispute with your organization that has elevated to litigation. As part of the discovery process, I will ask for records that are relevant to the lawsuit. Increasingly, this involves production of millions of records. Read more: http://www.rimeducation.com/videos/rimondemand.php

1. Cohasset Associates, Inc.
NOTES
A Talk With the Fox
Your ERM Program’s Exposure to Attack at
Discovery and at Trial
Steven W. Teppler, Esq.
Edelson McGuire, LLC
MER Conference 2012
May 8, 2012
But First, a Few Very Boring
Moments Discussing the Law
• My Pack’s Rules are The Federal Rules of
Civil Procedure:
– Rule 1: Proportionality
– How much eDiscovery depends on the case
» Simple Cases
» Complex Cases – mass tort, class actions
» Patent, Trademark, Copyright
» Commercial Disputes
» Discrimination cases
» HIPAA, Sarbanes Oxley, Data Breach
» Whistleblower (Dodd-Frank) cases
Discussing the Law (2)
• Rule 26
– Initial Disclosures
• Discovery scope and limits
– Non-privileged ESI that is relevant evidence or could
lead to evidence
– Not duplicative, excessively burdensome
– The Lawyers Meet and Confer
• Attorneys for parties must “meet and confer”
before starting discovery
• Counsel must discuss any issues about
disclosure or discovery of ESI
2012 Managing Electronic Records Conference 12.1

2. Cohasset Associates, Inc.
NOTES
Discussing the Law (2)
• Rule 26 Counsel Meet and Confer (cont’d):
• I’ll have a technology expert present to discuss
discovery context (about your enterprise ERM
program)
• Your counsel will (hopefully) have a tech expert
present (that might be you) to discuss discovery
context
• My first opportunity to negotiate eDiscovery to
ensure production transparency
• My first opportunity to learn about your ERM program
– and you haven’t produced a thing.
Discussing the Law (3)
• Rule 29 - Stipulations About eDiscovery
– Parties can agree to limit or expand scope
– Stipulations are contracts
– Contracts will bind the parties throughout discovery
and trial
– I’ll negotiate for an expansive scope to the extent
permitted by the rules
– The parties might enter into an stipulation for and
ESI production protocol
• This is a more extensive contract
Discussing the Law (4)
• Rule 33 – Interrogatories About eDiscovery
– If I don’t get enough information through the Rule 26
meet and confer process, I’ll ask written questions about
your ERM program
– You’ll probably be needed to formulate the responses
You ll
– I’ll ask about
• Document retention/destruction program
• Data silo(s) identified, who are data custodians
• How they are maintained
• What identification, search and collection methods
are used to respond to eDiscovery
2012 Managing Electronic Records Conference 12.2

3. Cohasset Associates, Inc.
NOTES
Discussing the Law (5)
• Rule 34 – Records and ESI Discovery Requests
– I can (and will) request to inspect, test, copy or sample
ESI in your enterprise’s custody control or possession
• All relevant ESI or information that could lead to the
discovery of relevant ESI
– I can designate format of production
• I will request native format
– If I request structured data, I’ll confer with your lawyers to
arrive at appropriate
• I will request to see search query results
– You will be required to assist counsel in providing
responsive ESI. You will be part of the process.
Discussing the Law (6)
• Rule 30 - Conversations About eDiscovery
– If I believe that initial disclosures, responses to
interrogatories or responses to ESI production
requests are deficient, I’ll invite you over to discuss
these responses in a deposition
p p
• Before a court reporter
• For the record
• Where you will be under oath to tell the truth under
penalty of law
Discussing the Law (6)
• Rule 29 - Stipulations About eDiscovery
– Parties can agree to limit or expand scope
– Stipulations are contracts
– Contracts will bind the parties throughout discovery
and trial
– I’ll negotiate for an expansive scope to the extent
permitted by the rules
2012 Managing Electronic Records Conference 12.3

4. Cohasset Associates, Inc.
NOTES
Discussing the Law (7)
• Rule 37 – Court Sanctions (or penalties) for
Failure to Comply with eDiscovery
Requests
– If your discovery responses are deficient, I will file
a motion to compel proper responses
– The Court may order you to produce the proper
ESI responses
– Your enterprise may have to pay legal fees in
connection with the motion
– If your responses to the Court order are still
defective, the Court can impose evidentiary
penalties, making it difficult or impossible to prevail
at trial
Discussing the Law (8)
• Rule 37 and Evidence Destruction
– If ESI has been destroyed, and…
• if it turns out that you have a poorly designed,
enforced, or monitored ERM program, sanctions
may be imposed on your enterprise (think $$$
and losing)
• if it turns out that you have a defensible ERM
program directed to records retention and
destruction, and that program is operated in
good faith, you can take shelter under a “safe
harbor” rule and no sanctions will be imposed
Discussing the Law (9)
• Rule 37 and Evidence Destruction
– The Court will likely hold a hearing on motions to
compel or motions for sanctions for destruction (or
withholding) of evidence
– There will be witness testimony taken at these
hearings
– Check your schedule because you may likely be
witness at these hearings
2012 Managing Electronic Records Conference 12.4

5. Cohasset Associates, Inc.
NOTES
Plain English, Please
• Why will court hearings to compel production
or for evidence destruction occur and
sanctions ensue?
– You failed to respond to a discovery request
– Y f il d t di l
You failed to disclose d t silos, custodians f relevant
data il t di for l t
information
– You disclose that ESI has been destroyed, and
indefensilby so
– Typically these occur as a result of an ERM program
failure
Did I Mention ESI Preservation?
• A court will impose sanctions for failure to
preserve ESI relevant to a lawsuit
– Your ERM document retention/destruction policy was
designed in bad faith, resulting in the destruction of
relevant ESI after litigation commences
– Your ESI retention/destruction program was operated in
bad faith, resulting in the destruction of evidence after
litigation commences
– The severity of sanction will generally depend on the
degree of bad faith
What About ESI Preservation
Before Litigation Starts?
• Federal courts can impose sanctions for failure
to preserve relevant ESI prior to the beginning
of a lawsuit. The same rules apply:
– Your ERM document retention/destruction policy was
designed in bad faith, resulting in the destruction of
faith
relevant ESI before litigation commences
– Your ESI retention/destruction program was operated in
bad faith, resulting in the destruction of evidence before
litigation commences
– Again, the severity of sanction will generally depend on
the degree of bad faith
2012 Managing Electronic Records Conference 12.5

6. Cohasset Associates, Inc.
NOTES
Let’s Talk Litigation Holds
• Litigation holds are ESI preservation mandates
• Litigation holds typically take place at the
commencement of litigation
– An aspect of information governance
– Fundamental component for preservation of evidence
– Require proper design, deployment and enforcement
• Well designed, they can provide robust defensibility
of good faith management of electronic information
infrastructure
– But first, a pictorial walkthrough…
Information Governance?
A.K.A. - Information lifecycle management
OLD – Litigation Hold Targets
2012 Managing Electronic Records Conference 12.6

7. Cohasset Associates, Inc.
NOTES
NEW – Litigation Hold Targets
Litigation Holds and ESI
• Litigation holds also include storage media
identified as repositories of potentially relevant
electronically stored information.
And the point is…
This is Where Storage
Lives
2012 Managing Electronic Records Conference 12.7

8. Cohasset Associates, Inc.
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A New Litigation Hold Place
In the Cloud
Litigation Hold Triggers
• Federal Common Law
– Zubulake and progeny
• Federal Law
– Sarbanes Oxley §802; §1102 (codified as 18 USC
§1519 and 18 USC §1512(c)
• Implied Litigation Holds –
– HIPAA/HITECH
– Breach Notification Statute Compliance
Litigation Holds –and the Three Irascible
“Reasonables” An ERM Program Should
incorporate
• The First Reasonable – “Reasonably Anticipated
Litigation”
» Zubulake IV-V – 220 F.R.D. 212 (S.D.N.Y. 2003) 229 F.R.D.
222 (S.D.N.Y. 2004)
» Pension Committee v. Banc of Montreal, 685 F.Supp. 2d 456
(S.D.N.Y. 2010)
– Prior to litigation
– When represented by counsel, Sanofi-Aventis v Glenmark
Pharma., 2010 2652412 (D. N.J. 2010)
– When not (or not yet) represented by counsel?
– Scope issues (broad or limited)
– Duration of anticipation issues: (how much, how long
before, and after litigation)
– Format Issues - (old, new, migrated) whew!
2012 Managing Electronic Records Conference 12.8

9. Cohasset Associates, Inc.
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Litigation Holds –and the
Three Irascible “Reasonables”
• The Second “Reasonable” - Reasonably
Usable Format
– Fed.R.Civ.P. Rule 34 – If a requesting party does
not specify a form for producing ESI, the
responding “party must produce it in a form or
party
forms in which it is ordinarily maintained or in a
reasonably usable form or forms.” Fed.R.Civ.P.
34(b)(2)(E)(ii)
– See also, Aguilar v. Immigration and Customs
Enforcement Div. of U.S. Dept. of Homeland Sec.,
255 F.R.D. 350, 355 (S.D.N.Y. 2008)
Reasonably Usable Format
• Query:
– Does a litigation hold put into place prior to the
onset of litigation require
• Preserve “As Is” – i.e., preservation in status
quo ante?
• Preserve with view to production – i.e.,
preservation as “reasonably usable” in
anticipation of litigation?
• Maintenance of format to maintain “reasonable”
usability for anticipated production?
Litigation Holds –and the
Three Irascible “Reasonables
• The Third “Reasonable’ – Reasonable
Accessibility
– How should litigation holds address potential
reasonable accessibility issues raised by
Fed.R.Civ.P.
Fed R Civ P Rule 26?
“Fed.R.Civ.P. 26(b)(2)(B) provides the following: A
party need not provide discovery of electronically
stored information from sources that the party
identifies as not reasonably accessible because of
undue burden or cost.)” Goodman v. Praxair
Services, Inc., 632 F.Supp.2d 494, 525 (D.Md. 2009)
2012 Managing Electronic Records Conference 12.9

10. Cohasset Associates, Inc.
NOTES
Reasonable Accessibility
• The determination of reasonable accessibility
arises after the fact, and during litigation
• “On motion to compel discovery or for a protective
order, the party from whom discovery is sought must
show that the information is not reasonably
accessible because of undue burden or cost.”
Goodman v. Praxair Services, Inc., 632 F.Supp.2d
494, 525 (D.Md. 2009)
– Cautionary Note: The determination of preserving
reasonable accessibility is an after the fact gamble; you
should consult with your counsel about this
Failure to Implement Hold
• Evidential Sanctions:
– Thus, having found that (1) BCT had a duty to preserve
evidence at least when the complaint was filed in this
case, and over 18 months before the deletions at issue
occurred; (2) Philips was prejudiced by the destruction of the
evidence; and (3) BCT acted in bad faith, the court
faith
concludes that spoliation sanctions are appropriate in this
case, including an inference that production of the destroyed
documents would have been unfavorable to BCT. Having
concluded that a sanction is appropriate for spoliation
and for violating the court's discovery order, and having
found that BCT acted in bad faith and that an adverse
inference is thus warranted in this case...“ Philips
Electronics v BC Technical, 2011 WL 677462 (SD FL 2011)
Litigation Holds
• Counsel will receive the preservation letter
• You will propagate the litigation hold
according to a properly designed,
implemented and monitored ERM program
– Modes
• Oral – not a great choice
• Written – preferable
• Informal – open to challenge
• Memorialized - defensible
2012 Managing Electronic Records Conference 12.10

11. Cohasset Associates, Inc.
NOTES
Preservation Letters vs.
Litigation Hold Letters
• Distinguishing points
– Timing
– Purpose
– Does the content of one dictate the content of the
other?
• Litigation strategy: discovery or… fear
factor….?
• Does Your ERM Program for document
retention/destruction address these?
Elements of an Effective
Enterprise Litigation Hold
Letter
• Know Thyself!
• Know Thine ERM Program
– Nature of the business
– ESI Custodians
– Retention/destruction policies (if any…..)
– Never a one-size-fits-all situation
Document – A Litigant’s Definition
The terms "document" or "documents" refer to, without limitation, any
written, printed, typed, recorded, filmed, taped, or other graphic matter readable or viewable
with or without the aid of machines, computers, or other electronic devices, and includes
originals, all drafts, and copies bearing notations not found on the original or on other
copies, whether or not printed, sent, or received (including, without
limitation, correspondence, letters, envelopes, memoranda, reports, records, returns, e-
mail, financial
statements, notes, drawings, charts, contracts, diagrams, indices, telegrams, tabulations, re
ceipts, studies, statistics, analyses, evaluations, checks, projections, prospectuses, work
p , , , y , , ,p j ,p p ,
papers, statements, summaries, opinions, journals, calendars, schedules, appointment
books, diaries, logs, lists, offers, comparisons, books, pamphlets, brochures, booklets, instr
uctions, interoffice and intra office
communications, notices, bulletins, manuals, minutes, transcriptions, transcripts, manuals,
notations of any sort regarding conversations, telephone calls, meetings or other
communications, computer printouts, teletypes, telefax, invoices, purchase
orders, quotations, bids, bills of
lading, warranties, bonds, surveys, graphs, photographs, microfiche, microfilm, mechanical
or electric records or representations of any kind, including, without
limitation, tapes, cassettes, discs, recordings and motion pictures photographs, and items
residing solely on computer disks, or other electronic storage media, and all
drafts, alterations, modifications, changes and amendments of any of the foregoing) to
which you have or have had access and/or control. Without limiting the foregoing, the term
“document” is also defined as to be synonymous in meaning and equal in scope to the
usage of this term in Federal Rule of Civil Procedure 34(a), including, without
limitation, electronic or computerized data compilations, as well as “electronically stored
2012 Managing Electronic Records Conference 12.11

12. Cohasset Associates, Inc.
NOTES
Communications – A Common
Perception
Communications – A Litigant’s
Definition
• The term “communication” refers to, without
limitation, writings, conversations,
correspondence, memoranda, discussions,
telexes, telegrams, facsimiles (faxes),
speeches, presentations,
speeches presentations press and other
releases, emails, voice-mails, ICQ messages,
real-time internet communications, bulletin
board postings, blog postings, notes, and any
other means of exchanging or parting
information, whether made in person
telephonically, electronically or otherwise.
Sources of Information Subject to
Litigation Holds
• PDA’s and beyond…..
– File drawers
– Desks drawers
– Files at home
– Office
Offi computers and l d laptops - l
locally
ll
– Servers
– Active emails
– Filed (“foldered”) email
– Attachments to emails
– Portable media, including floppy disks, CD’s,
memory sticks…….
2012 Managing Electronic Records Conference 12.12

13. Cohasset Associates, Inc.
NOTES
You’ve Identified and Found
ESI…What’s Next?
• Give clear direction as to how to handle the
materials.
• Ensure appropriate preservation policies and
processes are put into place
Oh, and one more thing…
What’s Next? (cont’d.)
• Monitor, monitor, monitor!
– “Counsel must oversee compliance with the litigation
hold, monitoring the party's efforts to retain and
produce relevant documents…”
• “Zubulake V”, 229 FRD 422 439 (SDNY 2004)
Zubulake V 422, 2004),
quoted in Sanofi-Aventis Deutschland GmbH v.
Glenmark Pharmaceuticals Inc., 2010 WL 2652412
(D. N.J. 2010)
A Fed.R. Civ.P. 26(f)
eDiscovery Meet and Confer
Request (I)
• Keeping in mind Defendant’s preservation duties, and when this matter
advances to the formal discovery mode, Plaintiff intends that the first
Fed.R.Civ.P. Rule 26(f) meet and confer between counsel and other necessary
persons will address the nature and context of the eDiscovery Plaintiffs will
seek. To that end, we will have present and participating at this conference
(and any subsequent conference, where necessary) a technology expert to assist
in this process. We also intend to discuss the nature, form and format for ESI
p ,
that will be produced by Defendant in connection with its Fed. R. Civ. P.
26(a)(1) Initial Disclosures. We suggest that Defendant attend with its
respective technology expert(s), who should be thoroughly familiar and able to
discuss, where applicable to this matter, items “a” through “t,” below. In
proceeding with a conference attended by each party’s technology expert, we
intend to minimize the potential for misinterpretation of discovery
requests, defective discovery responses, and discovery-related motion
practice, with the objective of reaching mutual agreement on a stipulated ESI
production protocol. If Defendant does not agree with this proposal, please so
advise, so that we may, at the appropriate time bring this to the Court’s
attention for guidance and resolution at an early stage of litigation.
2012 Managing Electronic Records Conference 12.13

14. Cohasset Associates, Inc.
NOTES
A Fed.R. Civ.P. 26(f)
eDiscovery Meet and Confer
Request (II)
Plaintiff’s counsel and its expert will be prepared and intend to discuss:
• a. Agreement as to general definitions to be used by the parties;
• b. Identification of individuals, including any non-party or third-party
individuals, who can testify to eDiscovery issues, including network and
computing infrastructure, electronic records management and retention, and
sources of potentially relevant ESI;
• c. Identification of all data storage, whether connected or not connected to
Defendant’s network mapping that may be a source of ESI;
• d. Acquisition of Defendant’s documentation of processes that are used to
manage the Defendant’s system(s) that generate and store ESI. Examples
include back-up and business
• continuity policy, data retention policy, as well as internally and externally
prepared audit reports documenting adherence to these policies;
• e. Acquisition and examination of all pertinent versions of uncompiled source
code;
• f. The necessity for restoration of previously deleted information;
A Fed.R. Civ.P. 26(f)
eDiscovery Meet and Confer
Request (III)
• g. Determining whether or not back-up and archive information is within the
scope of discovery
• h. Defendant’s data protection policies and methodologies, such as
continuous data protection, data base snapshot or other rollback technologies;
• i. Existing and continuing necessity for ESI preservation;
• j
j. Existing and or future necessity for forensic evidence collection, and
g y
preservation orders, and other extraordinary ESI preservation activities;
• k. ESI search, terms, search protocols, sampling and error testing;
• l. Nature, form, and format of ESI production to be produced by Defendant;
• m. Production (where applicable) of structured data, including search
queries;
• n. Form and format for initial disclosures of ESI;
• o. Description of the processes of production;
A Fed.R. Civ.P. 26(f)
eDiscovery Meet and Confer
Request (IV)
• p. Production schedule and costs;
• q. Privilege log format, timing, and privileged document metadata;
• r. Clawback and Fed.R. Evid. R. 502 issues;
• s. Entry into an appropriate protective order;
• t. Documenting efforts to reach an accord regarding eDiscovery disputes.
What ill technology offer
Wh t will t chn l ff
tomorrow? Next month? Next
Year?
Will Your ERM Program Prepare You
to Ask The Right Questions??
2012 Managing Electronic Records Conference 12.14

15. Cohasset Associates, Inc.
NOTES
Points to Ponder
• I will inquire as to all these matters
• Where appropriate, I will seek court assistance
to obtain responses to my discovery requests
But
• I would much rather not do so.
• I wouldn’t won’t need to engage in this Kabuki
dance if your enterprise had has a defensible
ERM program
What Do I Really Want?
• FOR MYSELF: Relevant, non-privilege
information and relevant facts (including ESI)
for my client’s case
• FOR YOU: A defensible ERM program so that I
don’t have to engage in discovery abuse or
evidence destruction practice before the Court.
Appendix - Case Law Update
• Zubulake IV - 220 F.R.D. 212 (SDNY 2003) –
Reasonable anticipation of litigation
• John B. v. Goetz – 531 F. 3d 448 (6th Cir.
2003) – Meaningful preservation
• Zubulake V – 229 F.R.D. 222 (SDNY 2004) “It It
is well established that the duty to preserve
evidence arises when a party reasonably
anticipates litigation
• Pension Committee v Banc of America 685
F. Supp. 456 (SDNY 2010)– Failure to time
implement litigation hold
2012 Managing Electronic Records Conference 12.15

16. Cohasset Associates, Inc.
NOTES
Case Law Update
• Zubulake IV - 220 F.R.D. 212 (SDNY 2003) –
Reasonable anticipation of litigation
• John B. v. Goetz – 531 F. 3d 448 (6th Cir.
2003) – Meaningful preservation
• Zubulake V – 229 F.R.D. 222 (SDNY 2004) “It It
is well established that the duty to preserve
evidence arises when a party reasonably
anticipates litigation
• Pension Committee v Banc of America 685
F. Supp. 456 (SDNY 2010)– Failure to time
implement litigation hold
Case Law Update
• Robbins & Myers, Inc., Plaintiff, v. J.M. Huber
Corporation, 2011 WL 206593 (W.D. NY 2011)
• Duty to supplement means duty to extend litigation
holds
• Phili Electronics v BC Technical - 2011 WL
Philips El t i T h i l
677462, 40 (D. Utah 2011)
• Failure to preserve will inevitably lead to spoliation
of evidence
• Perfection not required
• Simply sending emails not sufficient
Case Law Update
• Liberman v. FedEx Ground Package System,
Inc., 2011 WL 145474, 3 (E.D.N.Y. 2011)
– Litigation hold (and preservation duty) extends to
second action on similar facts after first lawsuit
dismissed
• Sanofi-aventis Deutschland GmBH v.
Glenmark Pharmaceuticals, 2010 WL 2652412
(D. NJ 2010)
– Reasonable Anticipation of litigation triggers litigation
hold
– Just the “beginning”
2012 Managing Electronic Records Conference 12.16

17. Cohasset Associates, Inc.
NOTES
Case Law Update
• Rhea v Washington Department of
Corrections, 2010 WL 5395009 (WD Wash.
2010).
– (a.k.a. why this all matters): Attorneys required to know
client information systems, documents retention
policies (and litigation holds that ensue) and certify
pursuant to Fed.R.Civ.P. Rule 26(g)
Questions?
steppler@edelson.com
2012 Managing Electronic Records Conference 12.17