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eDiscovery
- 1. Presented by: Patrice Brown May 18, 2010 E-DISCOVERY
- 3. Discovery Demands of the 21st Century
- 4. Readiness and Responsible Compliance
- 5. The PitchE-Discovery Overview The Emerging Minefields
- 6. What is E-Discovery? DISCOVERY OF ELECTRONIC DATA Electronic discovery is the process of collecting (also called “harvesting”) preparing, reviewing, and producing electronic documents (also known as ESI) in the context of the legal process.
- 7. Understanding ESI What is Electronically Stored Information (ESI)? “…. ALL INFORMATION ON COMPUTERS.” **While not specifically defined in the FRCP, electronically stored information, or (ESI), is defined in the November 2006 issue of The Third Branch (Newsletter of the Federal Courts) simply as, “all information on computers.”
- 8. TWO-TIER SYSTEM (ESI) is divided into five categories, which are grouped into two tiers based on the effort and cost needed to access ESI. ACCESSIBLE NON-ACCESSIBLE Backup tapes, commonly using data compression, Erased, fragmented, or corrupted data Active, online data, Near-line data (short for near online), Offline storage and archives
- 9. Common forms of ESI in E-discovery Electronic content such as Email, Email with attachments (all kinds), Text files, PowerPoint, Spreadsheets, Voicemail, Instant and Text messaging, Databases, Proprietary applications, Internet, Intranet, Wikis, Blogs, RSS feeds, (plus cache files, slack space data, cookies), Data on PDAs, Cell phones, Videoconferencing & webcasting, Purchase orders, Contracts and Social networking content Metadata, Ephemeral data (data that last only a few hours that passes through/stored on RAM), Legacy or Orphaned data, CRM, Native data, Tiff, PDF, Erased, Fragmented or Damaged (“Residual”) data, Off-Line Archival data, Off-line backup or disaster recovery data, Unicode Support, Non-Unicode Support, UTF-8
- 10. Common Sources of ESI Mainframes, network servers, PAN, MAN, LAN, CAN, local drives (including network activity logs),DVDs, CD ROMs, floppy disks, laptops, backup tapes, external hard drives, desktops, file servers, smartphones, employees’ home computers, fax machines, and printers, etc.
- 11. Record Retention PROBLEM: Matching up the retention span of various e-records with the working life of information technology SOLUTION: Create a data retention policy that incorporates emerging technologies on how you manage information - e.g. Instant messaging, unified messaging and social media….
- 12. Electronic Discovery Reference Model
- 13. Stages of Electronic Discovery Identification Preservation Collection Processing Review Analysis Production
- 14. Identification Understand the “inventory” of ESI. Determine the subset of information that will be relevant for further processing. IDENTIFY RELEVANCY
- 16. KNOW HOW TO PRESERVE ESI
- 17. IT YOUR DUTY TO PRESERVE ESIThis is a critical step that ensures that ESI is protected from spoliation and modification
- 18. Collection Phase where all relevant ESI is collected from the various sources. DUPLICATION
- 19. Processing PRIORITIZE RELEVANT INFORMATION ESI CONVERSION AND COMPUTER FORENSICS
- 20. Review This is where the contract attorneys come in! - ESI Redaction - Relevancy Evaluation - Legal Examinations
- 21. Analysis Determining exactly what the ESI means in the context of the legal action at hand Developing summaries of relevant information Determining the key issues on which to focus, etc.
- 22. Production Delivering the relevant ESI to any parties or systems that will need it Delivering ESI in the appropriate form(s), including DVDs, CD-ROMs, paper, etc.
- 23. Presentation The specific forms of presentation for ESI will vary widely depending on the content: How the content will be presented Where the content will be presented By whom will the content will be presented; and other factors
- 24. Case Law Relevant to Electronic Discovery Federal regulations (and many states) require early collaboration Findings on Case law relevant to eDiscovery is continuously evolving Identify and anticipate important issues to consider prior to the Rule 26(f) conference
- 25. Federal Rules of Civil Procedure (FRCP) governing e-discovery KNOW THE RULES December 1, 2006, the Federal Rules of Civil Procedure embraced the 21st Century world! Rules 16,26,33,34,37, 45 as well as Form 35, require attorneys to pay specific attention to electronic discovery issues.
- 26. KEY PROBLEM AREAS THAT MAKE E-DISCOVERY DISPUTES SUCH A BIG DEAL PRESERVATION AND SPOILATION SCOPE, FORM AND COST OF PRODUCTION PRIVILEGE
- 27. WHEN THE E-DISCOVERY PROBLEMS ARISE, THEY ARE A BIG DEAL THEY CONSUME A TREMENDOUS AMOUNT OF THE PARTIES’ TIME AND MONEY THEY CONSUME A TREMENDOUS AMOUNT OF THE COURT’S TIME
- 28. WHY ARE THESE PROBLEM AREAS MORE SIGNIFICANT WITH E-DISCOVERY THAN WITH TRADITIONAL PAPER DISCOVERY? BECAUSE OF THE ENORMOUS VOLUME AND MANY SOURCES OF E- INFORMATION!
- 29. WRAP-UP:Elements of Successful Electronic Discovery A successful e-discovery effort entails most or all of the following elements: • Identifying relevant systems and data • Compelling preservation of potentially relevant digital evidence • Seeking production of digital evidence in manageable formats • Honing preservation and production through “meet and confer” sessions • Memorializing preservation and production duties as court orders • Assimilating, analyzing and using the electronic data produced • Identifying discovery abuses and seeking the Court’s intervention Tip: Prudent corporations quickly implement written legal holds if litigation appears to be on the horizon.
- 30. - THE PITCH - EDUCATE LISTEN ADVISE COUNSEL SOLUTIONS….. SOLUTIONS….SOLUTIONS!!!
- 31. Its all about communication…. Principle 2.01 Parties should discuss electronic discovery with their opponents before initial status conference And should meet and communicate with clients before meeting with opposing counsel
- 32. “One great relationship, many great services!” PB LISTEN – Early discussion and communication are imperative EDUCATE – FRCP Preservation Obligations COUNSEL and ADVISE – Understand that Compliance WILL COST YOU, be prepared to make the necessary changes and meet demands of eDiscovery
- 33. Listen ECA – Early Case Assessments to gain full understanding of your eDiscovery needs Consulting with you prior to the meet and confer on what is or is not accessible data, to collection, processing, review, and production
- 34. Educate THE KEY TO SUCCESS IS PLANNING! Let us educate you on demands and legal obligations surrounding ediscovery, and let us be your go to firm of “outside experts”!
- 35. Counsel & Advise I will personally act as liaison between IT and Legal to identify where data is stored and reduce potential litigation risks Advice on changes to processes, rules and regulations, and your current and future options On-site Discovery Case Management (Planning and implementation of best practices: network maps, record retention policies, eDiscovery pro tocol, LRT – Litigation Response Team, custodian interviews, etc.)
- 36. PYE eDiscovery Solutions….. Containing Costs Reducing Risks, and Avoiding Sanctions
- 37. Partner with Pye A core team that is always on staff eDiscovery professionals with the experience and partnerships to fulfill all of your service requirements Customized plans for the management of your discovery – all of it - through every step of the litigation process Inside edge on latest trends, technology and legislation in the arena of eDiscovery
- 38. CONCLUSION It’s challenging. It’s expensive. But it’s the single greatest litigation advantage of the 21st century, for legal professionals who are willing to learn and fulfill their legal and compliance obligations. Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. Being able to interact with a fast-growing universe of digital devices and data repositories are a must! Whether you are a law firm looking to outsource your document reviews, or an inside counsel who wants to contain costs and maintain control, consider partnering with Patrice Brown at Pye Legal, for all of your e-discovery needs!
Notas del editor
- The following information has been gathered to clarify the jargon associated with e-discovery, and provide intelligence on the principals, processes, and “pitch” of this service as a potential representative of Pye Legal Group.Responsible compliance with discovery obligations, including the production of reasonably available and potentially relevant electronic records, will not be impaired by the high-tech reality of today’s business environments.As technology continues to evolve litigation involving multinational corporations and law firms are subject to discovery demands. The technical complications of these demands force litigators to become more proactive in assessing the linguistic capabilities of their discovery management technology and services partners. Litigants—and their counsel—will be held accountable to comply with e-discovery in a technologically competent manner.
- “….. finding, preparing, and sharing ESI for use in the legal process.”lawyers no longer spend countless hours reviewing boxes of paper documents. Instead, most now spend their time collecting, managing, and reviewing electronic data.
- INFORMATION SUITABLE FOR PROCESSINGOne of the biggest mistakes a requesting party makes is requesting or accepting production ofESI, in a format ill suited to their needs.
- FOR THE PURPOSE OF IDENTIFICATION OF ESI for litigation purposesThe landmark series of rulings in Zubulake divided data into two categories: accessible information that must be produced during discovery and inaccessible that need not be.
- ESI FORMS have several different ENCODING FORMATS (UNICODE) andCAN BE STRUCTURED – HAS AN ASSIGNED FORMATCAN BE UNSTRUCTURED – DOES NOT HAVE AN ASSIGNED FORMAT
- ANY DEVICE THAT CAN STORE ESI, IS A SOURCETHIS IS WHERE THE DATA CAN BE FOUNDAn organization must know where its data is stored before it can effectively manage that data in a manner that contemplates and prepares for future litigation. Many organizations catalog and monitor data through creating and maintaining an application inventory and data map. Together, an application inventory and data map help corporations and outside counsel quickly identify relevant data sources and custodians that are key to an investigation or litigation, and prevents the need to search for information throughout every storage system within the organization’s IT environment.
- There is a problem…. Not having a retention policy in place, or not retaining the information properly (i.e. too long)There is a solution….. Creating a retention policy that incorporates emerging technologiesA well-known example illustrates the cost of discovery: To convince business unit leaders of the necessity of an effective document retention system, DuPont’s legal department conducted an internal cost assessment of a three-year response to a single discovery request. DuPont reviewed 75 million pages of text during the three-year period, and found more than 50 percent of the documents were kept beyond their retention period. The cost of reviewing those documents past their retention periods amounted to US$12 million.
- THE ELECTRONIC DISCOVERY REFERENCE MODEL (EDRM) Set of standardized procedures of managing discovery.Response to the relatively few standards and lack of generally accepted guidelines for the process of e-discovery.The team that developed the EDRM was facilitated by George Socha (Socha Consulting LLC) and Tom Gelbmann (Gelbmann & Associates).
- Key stages in ediscovery
- GOAL IS TO Understand what you have, Understand the universe of info that might be required in litigationAt this point in the process, discovery demands, disclosure obligations and other pertinent claims and demands are reviewed and considered. The goal at this stage of the process is to understand the universe of information that might be required in order to respond to appropriate ediscovery requests and then determine the subset of information that will be relevant for further processing. Our customized plans control costs by ensuring that you are armed with the information you need early in the process.We provide a detailed inventory of your applications and ESI sources, which can be used by legal and IT to determine the relevancy of data to a legal or investigatory matter. Our team supplies an inventory that includes systems, applications and legacy systems or externally hosted sources of ESI that might be under the company’s control.
- The preservation of ESI can be costly for many large organizations. Over-preservation may result in escalating costs as information is produced at an exponential rate. Failure to preserve enough can result in a wide range of possible penalties, including monetary, issue, expert and case-related sanctions. PROTECT YOUR ORGANIZATIN FROM SPOILATION AND MODIFICATION TO PREVENT LEGAL RAMIGICATIONSWhat Happened?In Gutman v. Klein, the defendant searched for and downloaded software to wipe his hard drive of evidence relevant to the case. Instead of using the data wiping software, the defendant manually deleted files. Then he reinstalled Windows XP, presumably to cover his tracks.Stroz Friedberg did a forensic examination of the laptop. Much of the spoliation evidence was identified through Stroz Friedberg’s analysis of file system meta data, file meta data, and system logs.Based on this spoliation, the magistrate judge recommended a sanction of default judgment against the defendant and a sanctionIn a case from the District of Maryland, the duty to preserve arose when a plaintiff sent a letter informing the defendant that he had consulted attorneys regarding the matter.iii The Western District of Kentucky has held that notice of litigation was established after a phone call from the plaintiff and the filing of a complaint.iv Additional courts have determined pre-litigation trigger events to include: threatened legal action in writing,v conversations with supervisors and management, vi filing claims with administrative agencies,vii and letters from opposing counsel prior to litigation nAs demonstrated by these sample cases above (which by no means present an exhaustive list of possibilities), it is no surprise that parties are confused as to when the duty to preserve arises. And, to strengthen defensibility, parties should take detailed notes of the preservation protocol that was followed, which includes when the hold was issued, what details were included in the hold, to whom the hold was issued and the efforts taken to monitor compliance.Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done or not done was proportional to that case and consistent with clearly established applicable standards
- Collect content for discovery Log and copy content (DUPLICATE) - Just as would traditional discovery in paper formant
- PrioritizeCollected data should also be prioritized into: a - that content that will likely be relevant later in the process and; b - content that will likely not be relevant. Document conversion a -convert ESI into a form that will permit the most efficient and thorough review of its contents.If necessary bring in foreign sic experts to process encoding and metadata – (when you meet and confer, you will know how opposing party can receive data
- Redact ESE as appropriate to specific nature of caseEvaluating content for relevancy - Have lawyers and paralegals read through content to determine what is relevant to the case Determining if specific items are subject to attorney-client privilege, etc.
- Preparation of discovery responses, just as tradition discoverySuch as We help prepare or act as your 30(b)(6) witness to testify about these same issues.Attorneys and legal professionals that I hire need to be prepared to act as 30(b)(6) witnesses to testify about these same issues.
- Gather and produce content for transmission to court and opposition RFP
- The presentation of ESI is a key consideration at various points of the e-discovery process – as information is reviewed, analyzed, produced, etc.
- Case law continues to evolve regarding how electronically stored information (ESI) is identified, preserved, collected, processed, reviewed and produced. Federal regulations (and many states) require early collaboration among litigants and third parties. Our experts work with your litigation response team to identify and anticipate important issues to consider prior to the Rule 26(f) conference. We specialize in facilitating conversations between outside counsel and corporate IT personnel to ensure that your legal team arrives at the 26(f) conference prepared to take control of the discovery process while containing costs.Findings on accessibility, admissibility, chain of custody, cost sharing and shifting, data production, good faith, legal hold, metadata, privilege, 26(f) meet and confer conferences, and spoliation significantly impact the IT, Legal and Business processes of law firms and their clients.
- Every professional of any sort, who specializes or handles e-discovery matters on a day to day basis, knows that on December 1, 2006, the Federal Rules of Civil Procedure embraced the 21st Century world, where 95% of records are electronically created and stored and all discovery is now e-discovery.HISTORY:The e-discovery amendments originated with the Advisory Committee on Civil Rules, which first heard about problems with computer-based discovery in 1996 and began intensive work on the subject in 2000. The Advisory Committee considered numerous alternatives, perspectives, and ideas in determining whether amendments specifically addressing electronic discovery were necessary, and, if so, what the language of any such amendments should be. In August 2004, the Committee published its proposed amendments. Following the public comment period – during which over 250 individuals and organizations provided feedback – the Advisory Committee made several additional modifications, resulting in the final package of amendments that was ultimately approved by the Judicial Conference and the United States Supreme Court.
- WHAT PROBLEMS DOES THIS CAUSE FOR PRESERVATION, PRODUCTION AND PRIVILEGE?MORE POSSIBLE PLACES TO LOOKMORE DATA TO SIFT THROUGHMORE DATA THAT IS DIFFICULT TO ACCESS MORE RISK OF PRODUCTION OF PRIVILEGED INFORMATIONMORE OPPORUNITIES TO GATHER USEFUL DATAMORE OPPORTUNITIES TO MAKE ERRORS IN PRODUCTION
- THE VOLUME OF ELECTRONIC INFORMATION - AS OF 1999, 93 PERCENT OF ALL INFORMATION IN THE UNITED STATES WAS GENERATED IN DIGITAL FORM80-90% OF DISCOVERABLE INFORMATION IS IN THE FORM OF E-MAILMUCH OF THIS INFORMATION IS NEVER REDUCED TO HARD COPY FORM
- Roadmap to Complying with Preservation Obligations i. Create a Legal Hold Response Team ii. Know Where Your Data Lives iii. Archive Your Data iv. Institute a Defensible Document Retention Policy v. Implement the Legal Hold vi. Notify Custodians of the Legal Hold vii. Release the Legal Hold***Knowing When the Duty to Preserve Arises i. Levels of Culpability and Appropriate Sanctions ii. Burden-ShiftingLevels of Culpability and Appropriate SanctionsIn the context of data spoliation after the duty to preserve has attached, the spoliating party’s culpability can range from inadvertent loss, to mere negligence, to intentional destruction of evidence or willful misconduct. As a general rule, higher degrees of culpability warrant the imposition of increasingly severe sanctions. Ultimately, sanction determinations are heavily dependent upon the facts and circumstances of each individual case; therefore, the basic rules provide practitioners and litigants with little affirmative guidance. However, a recent opinion issued by District Judge Shira Scheindlin of the Southern District of New York, has drawn clear connections between culpability and conduct. Gross negligence is a standard greater than simple negligence and is a failure to exercise the same level of care a careless person would employ. Accordingly, Judge Scheindlin defines the following as gross negligence: the failure to issue a written legal hold, identify the key players and ensure that their electronic and paper records are preserved, cease the deletion of e-mail or to preserve the records of former employees that are in a party’s possession, custody or control, and preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.Burden-ShiftingRegardless of which approach is followed in determining appropriate sanctions for the spoliation of evidence, the specific type of sanction also directly correlates to which party, the innocent or spoliator, bears the burden of establishing the relevance of missing evidence. Judge Scheindlin specifically addressed this issue in the Pension Committee case.Judge Scheindlin explored the burdens associated with the loss of documents, analyzing who is responsible for demonstrating the relevance and resulting prejudice of the lost evidence, and related the burden of proof question to the severity of the sanctions at issue. For less severe sanctions, such as an award of costs and fees, the court’s inquiry focused on the loss of evidence, and whether it was relevant or resulted in prejudice. Essentially, the innocent party must prove three elements: the spoliating party had control over the evidence and an obligation to preserve when the evidence was destroyed, the spoliating party acted with a culpable state of mind, and that the missing evidence is relevant.
- BE AWARE -You have a legal obligation to preserve ESI!PREVENTION -Prevent legal risk and possible sanctions for failure to safeguard and preserve potentially relevant electronically stored information (ESI).
- Each of the steps in ediscovery is costly. For example, just the process of legal review of the content can run up to US$2,000 per gigabyte of content.
- Solution – start your own investigation, do a site visit to see how clients do business. See where data is stored (file server) and go over data typesI e – ask where is email stored (email exchange server only) go over every type of file and where they are stored.Identify people who have RELEVANT esi or information – its all about relevancy and identifying people who have ownership or knowledge of any/all discoverable informationPreservation requirements as early as possible – hence don’t wait to part with service providersSophisticated client – may have legal hold protocol in placeLess formal or organized – I will have to play active role and educate client on risk (not preserving info, not being produce, and cost that are involved) obligations to court ----- I must do my own due diligence with client
- Whether you are a law firm concerned with how clients manage ESI or a corporation unsure of how to leverage your legal and IT resources, the key to success is planning. Amendments to the Federal Rules of Civil Procedure require parties to understand how data is stored, accessibility and the burdens if the parties are required to produce. Take 30(b)(6) depositions of designated IT personnel—but be sure you alsoget past the managers and talk to those in the trenches who know about that box of old back uptapes in the storeroom. Get copies of document retention policies and ask witnesses aboutcompliance. Demand that the defendant furnish network topology diagrams and asset trackinginventories for computer hardware, but take these with a grain of salt, as they’re often outdatedor fail to reflect real-world configurations. Finally, remember that you’re not alone. Useresources like the ATLA Exchange to network with other lawyers who’ve pursued e-discoveryagainst the defendant and to locate qualified electronic discovery and computer forensicsexperts.Be careful what you wish for lest you get itand have to manage it and pay for its production.
- DON’T WAIT!-It is crucial you partner with service provides, both IT and Legal, for your eDiscovery needs!With the high volume of e-discovery collections and the increased costs of conducting a full discovery pro-cess, including legal review, on these collections, it is imperative that corporate law departments increase their control over their entire discovery process, in-cluding the legal review process, which is the most expensive phase of the case. By utilizing an onshore discovery management organization to outsource legal review, companies will benefit from a holistic approach to their discovery process that provides greater control, transparency, and a core team of subject matter experts in their cases with lower and more predictable costs.