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Spoliation Wars & Other ESI Highlights (2010)
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Spoliation Wars & Other ESI Highlights (2010)


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So what has been happening in the world of electronic discovery in the litigation context? A lot. From spoliation wars and tragic misfiling of confidential information, to ethics issues involving …

So what has been happening in the world of electronic discovery in the litigation context? A lot. From spoliation wars and tragic misfiling of confidential information, to ethics issues involving cloud computing, this presentation is chock full of do’s and don’ts for lawyers dealing with electronic information.

For additional information on this presentation, please contact Antigone Peyton (

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  • 1. Spoliation Wars and other ESI highlightsAntigone Peyton & Steve MorrissettA Presentation by the Electronic Litigation Group August 9, 2010
  • 2. The Fundamentalsn  Litigationholds (preservation)n  Safe harbor - routine operation – 37(f)n  Identifying ESI custodiansn  Inventory of ESI sitesn  Rule 26(f) meeting ESI requirementsn  Protective order provisionsn  Searches – context, filters, key wordsn  Metadata – searching, productionn  “Not reasonably accessible” – 26(b)(2)(b)
  • 3. More Fundamentalsn  E-discovery teamn  Specify “form” of production – 34(b) n  Failure to specify “form” – 34(b)(ii)n  Rule 33(d) complications for ESIn  Redactions of electronic filesn  Protecting confidentialityn  Privilege “claw-back” and diligencen  Service of process & subpoenasn  ESI sampling – 34(a)(1)
  • 4. Yet More Fundamentalsn  Evidentiary issues – authenticationn  Social media issuesn  Transient (ephemeral) datan  Foreign privacy lawsn  Foreign blocking statutesn  Foreign languages – search, reviewn  Service of process & subpoenasn  Cost-shiftingn  Proportionality: benefit v. burden
  • 5. The Wrong Attitude
  • 6. The Right Attitude
  • 7. Themes in 2010 decisionsn  Sanctions and cooperation dutiesn  Motions to compel and privilege disputesn  Fewer decisions regarding preservation, form of production, and accessibility of datan  Privacy of informationn  Social media discovery
  • 8. Preservationn  Synventive Molding Solns. v. Hysky Injection Molding Sys. (patent case)n  Though not formally part of the FRCP’s, legal holds are mandatoryn  Court can implement holds, including directions for implementation, if existing hold is deemed inadequaten  Ordered P to file sworn decl. describing hold and provide a list of affected custodians
  • 9. Preservationn  Not just e-mailn  Ephermeral data (e.g., instant messages, data logs)n  Skype messagesn  USB flash drive
  • 10. Pension Committeen  Issue written litigation holds earlyn  Future plaintiffs-no later than retention of outside counseln  Should instruct custodians not to destroy recordsn  Stop auto-destruction programs, especially for unique datan  Search broadlyn  Preservation/collection from key custodians is requiredn  Failures relating to minor custodians, or redundant docs can be negligentn  Follow up on former employees or those who may have changed jobs within company
  • 11. Pension Committeen  Provide adequate discovery supervisionn  Need to be experienced and well-versed in dutiesn  Do not delegate to an unsupervised/inexperienced personn  Do not allow employees to determine what is relevant without guidancen  Memorialize discovery efforts during processn  Describe rationale behind decisions and information relied on
  • 12. Pension Committeen  Monitorand manage discovery and compliance (even if case is stayed)n  Sweep all forms of ESIn  Include PDAs, home computersn  All known media the business usesn  Assume that oversights will be noticedn  Don’t oversell reliability of process (“all documents”)n  Defensive affidavits should come from people with personal knowledge of the efforts
  • 13. Pension Committeen  Gross negligence v. negligence linen  “Contemporary standards” of discovery practice rendered failures re: key custodians grossly negligentn  Worthy of adverse inferencen  No proof of intentional misconduct
  • 14. Rimkusn  Judge Lee Rosenthal, Chair of Judicial Conference Committee on Rules and Practice and Proceeduren  5th, 7th, 8th, 10th, 11th, and D.C. Circuits require bad faith to impose adverse inferencen  Gross negligence not enoughn  2nd-negligence sufficient, each party bears the risk of its actionsn  3rd-balancing test (degree of fault vs. prejudice)
  • 15. Rimkusn  5th-Adverse inference when there is bad faith, mere negligence not enoughn  Dismissal appropriate when “conduct was so egregious as to amount to a forfeiture of his claim”n  Uses Sedona concept of proportionality-burdens and costs weighed against potential value and uniqueness of data
  • 16. Sanctionsn  Failure to adequately supervise preservation/collection/productionn  Cherrington Asia Ltd. v. A&L Underground Inc.-inadequate preparation of 30(b)(6) witness on party’s e-discovery collection effortsn  Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co.-failure to produce native files and misinformation
  • 17. Sanctionsn  In re A&M Florida Propertiesn  Client and outside counsel sanctioned because outside counsel “simply did not understand the technical depths to which [e-discovery] can sometimes go”n  No bad faith findingn  Court required facts relating to appropriate allocation of sanctions
  • 18. Redacted E-Filingsn  Increasing use of electronic filing systemsn  Doc Type: searchable PDFsn  Issue: improper redactions of PDFn  Conversion of redacted word doc to PDF doesn’t properly redact the text
  • 19. Redacted E-Filingsn  Tribune Co. bankruptcyn  Issue: Failure to properly redact complaint filed by trustee for creditorsn  Redacted in Microsoft Word and converted to PDF for e-filingn  Firm had redaction issue in another creditor casen  Sanction request: limit firm’s access to confidential docsn  Examiner finding: no intentional or reckless violation of confidentiality order (report published Aug. 3, 2010)
  • 20. Social Median  Stats: Facebookn  Over 500 million active facebook users (50% daily users)n  Over 100 million w/public informationn  Complete facebook profile contains over 40 pieces of information (+wall posts & status updates)n  2/3 of comScore’s Top U.S. websites integrated
  • 21. Social Media
  • 22. Social Median  Internet forumsn  Weblogsn  Social blogsn  Microbloggingn  Wikisn  Podcastsn  Picturesn  Videon  Ratingsn  Social Bookmarking
  • 23. Social Media in Courtn  Criminal proceedings- sentencingn  Evidence to discredit witness/ impeachmentn  Investigation tool- authorities, lawyers, and jury consultants
  • 24. Social Median  Privacy preferences give way to liberal discovery rules in litigationn  Many rights are waived upon joining, or by default settingsn  Information may be subject to subpoenan  Little to no expectation of privacyn  Leduc v. Roman (Quebec)-private Facebook page still discoverable
  • 25. Social Median  Phila. Bar Op. 2009-02 (3/2009)n  Lawyer had 3rd party send friend request to adverse witnessn  Lawyer cannot do that for purposes of searching for otherwise private information on Facebook pagen  Rules regarding non-lawyer assistants apply to third-party actionsn  Concerns re: dishonesty, fraud, deceipt or misrepresentation
  • 26. Social MediaGuidance for lawyers and future lawyersn  Florida Supreme Court upholds sanction against trial lawyer who called the judge a “Witch” on a blogn  $1,200 + 5 misconduct chargesn  First Amendment defense defeated
  • 27. Social MediaGuidance for lawyers and future lawyersn  Illinois public defender looses job over blogn  posted confidential information relating to representationn  When is the LinkedIn profile an advertisement for business?n  Bar groups considering formal searches and requesting access to social media sitesn  Florida ethics opinion-unethical for judge to friend lawyers who practice before himn 2009 survey-45% of employers used social media sites to investigate job candidates
  • 28. Social Median  ThePresident’s Advice: “Well, let me give you some very practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life.” “Obama warns U.S. teens of perils of Facebook,” Sept. 8, 2009 (Reuters).
  • 29. Service of Processn  London High Court allowed service of a court order to an anonymous blogger over Twittern  Australian court allowed service of a default judgment through Facebookn  9th Circuit-e-mail service ordered
  • 30. Searching Metadatan  Data about data (D.C. Opinion 341)n  Avoid disclosure of confidential or privileged informationn  Employ reasonable means to remove metadata that might disclose this type of informationn  Lawyers have a duty to acquire sufficient understanding of technologies to know how to protect information
  • 31. Searching Metadatan  What do you do if you uncover confidential or protected metadata?n  If actual knowledge that it was sent inadvertently, should not review before checking with other siden  If not clear, always safer to check with other siden  Comply with instructions of sender if told to delete or return
  • 32. Client InformationIn the Cloud
  • 33. Protecting Client Informationn  NY Bar Ethics Op. 820-2/8/2008 (Gmail/Yahoo, etc.)n  Lawyer may use e-mail service that conducts a computer scan of e-mails to generate targeted ads (no human review)n  Provider stores e-mailsn  Privacy policy-no one outside of sender or recipients read messages or receive targeted adsn  Does not violate prohibition on lawyer or third party using client confidences for their advantagen  Must stay abreast of evolving technologies to assess risk of interception and potential alternative technologies that may reduce risks at reasonable costs
  • 34. Protecting Client Informationn  NC Proposed Ethics Op. NC-FEO-2010-7 (Clio- cloud computing practice-management program)n  Attorney can use third-party SaaS in law practicen  Duty does not compel a particular method of handling datan  Firm not required to guarantee invulnerable security proceduresn  Ethical obligation is the same: ensure provider employs security measures that effectively minimize the risk confidential information will be lost or disclosed
  • 35. Protecting Client Informationn  NJ, Arizona, Vermont, Mass., and Nevada ethics opinionsn  Third-party storage and processing of data/outside IT supportn  Same confidentiality standards apply to physical client files and e-files/stored client datan  Attorneys must exercise reasonable care when choosing storage providern  Must be must be knowledgeable about how it will handle data entrusted to itn  Ensure agreements with provider include terms requiring the preservation of the confidentiality and security of data
  • 36. Evidentiary Issuesn  St. Clair v. Johnny’s Oyster & Shrimp, Inc.n  Any evidence procured of the internet is good for almost nothingn  Lorraine v. Markel American Insurance Co.n  counsel must be prepared to deal with the evidentiary issues associated with admissibility
  • 37. Evidentiary Issuesn  Authentication-FRE 901(a)n  Must have evidence that doc is what the proponent claims it isn  Internet Specialties West, Inc. v. ISPWest-3rd party websites not authenticated by testimony of site visitorn  Need witness with some access or first-hand knowledge
  • 38. Evidentiary Issuesn  FRE 901n  901(b)(1). Testimony of witness with knowledge.n  901(b)(3). Comparison by the trier of fact or by expert witnesses with a specimen.n  901(b)(4). Distinctive characteristics and the like.n  901(b)(7). Public records.n  901(b)(9). Evidence produced as a result of an accurate process or system.
  • 39. Evidentiary Issuesn  FRE 902: “SELF AUTHENTICATION”n  Three of the rules have been used in the courts to authenticate ESI:n  902(5). Official publications.n  902(7). Self-authentication by inscriptions, signs, tags or labels.n  902(11). Authentication of regularly conducted business.
  • 40. Evidentiary Issuesn  The Internet Archiven  Snapshots of web pages over timen  Backups of sites is irregularn  Telewizja Polska USA, Inc. v. EchoStar Satellite Corp.-authenticatedn  St. Luke’s Cataract & Laser Inst. v. Sanderson-not authenticated, need statement from IA representative w/ personal knowledge
  • 41. Questions?“Three things in life are certain: death, taxes,and computer failures.”-Erik Heels