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    michael hamilton startegic dm case team  michael hamilton startegic dm case team Presentation Transcript

    • Background to Electronic Data Discovery (EDD) Michael Hamilton 2006/07
    • Objectives
      • Background – 6 Key Areas
        • Discoverability
        • Admissibility
        • Discovery Techniques
        • Sanctions
        • Cost Shifting
        • Privilege and Confidentiality Review
      • Beat to death topics
        • File Deletion Software
        • Backup Tapes
        • Court Rules
        • Time Zone Confusion
        • Discoverability & Ability to Process
          • Instant Messaging
          • Video/Audio
          • PDAs
        • Concept Searching / Linguistic based searching applications
    • Discoverability
      • Are electronic documents discoverable?
        • FRCP 34: Since 1970 amendment, yes
      • How does a party get discovery of e-documents?
        • Ask and ye shall receive . . .
          • But ask carefully (specifically tailor discovery request to e-docs)
            • Media: hard drives, servers, backup tapes, etc.
            • Storage form: .doc files, .xle files, .pst files, IM archives, etc.
          • And specify requested format for production
            • Under current rule, earlier paper production not preclusive
              • Milwaukee Police Assoc. v. Jones (Wis. Ct. App. 2000) (digital format more useful than analog); National Union Elec. Corp. v. Matsushita Elec. Ind. Co., (E.D. Pa. 1980) (e-data more useful than paper)
            • But note, especially under recently proposed FRCP amendments, failure to specify production format in original request may result in party having to settle for particular electronic format supplied
    • Admissibility – Electronic Evidence
      • What’s admissible – electronic file? paper printout?
        • Originals & duplicates both generally admissible (FRE 1001, 1003)
        • While e-file is true original, printouts generally count as originals
          • If metadata is at issue, printout or image may not “reflect data accurately” and therefore may not be admissible
        • Imaged (scanned) documents, like photocopies, are generally admissible as duplicates
      • Foundation – what is required to admit e-evidence?
        • Document forensic & acquisition efforts
        • Document chain of custody
        • Preserve pristine originals; work from images (copies)
    • Discovery Techniques
      • What’s the best way to gain access to the data?
        • Thoughtful search protocol can yield valuable results with minimal burden
          • Tulip Computers Int'l. v. Dell Computer Corp. (D. Del. 2002)
      • How should the data be gathered?
        • First rule of discovery: do no harm to existing evidence
        • Sound technique critical to avoid spoliation
          • Gates Rubber Co. v. Bando Chem. Ind. (D.Colo. 1996)
      • How should data be reviewed?
        • Timely review is critical
          • Pay attention to every type of information produced, regardless of format
            • Symantec v. McAfee (N.D. Cal. 1998) (Jaz disk)
          • Electronic review of electronic documents greatly speeds review
    • Sanctions
      • What is the risk of spoliation (destruction or loss of responsive data)?
        • Possible issue preclusion or default judgment
        • Competent forensic assistance can be critical
          • Residential Funding Corp. v. DeGeorge (2nd Cir. 2002)
      • What is the risk of failure to produce in a timely manner?
        • Generally fines, fees, but may result in preclusion of evidence
          • Crown Life Ins. Co. v. Craig (7th Cir. 1993) (failed to produce database of raw data  preclusion of evidence, testimony)
          • National Assn. of Radiation Survivors v. Turnage (N.D. Cal. 1987) (omissions due to lack of effective discovery response system  costs, fines, oversight by special master)
    • Cost Shifting
      • Can a producing party shift e-discovery production costs to requesting party?
        • FRCP 26(b)(2) mandates that a party does not have to produce electronic information that is “not reasonably accessible.” Includes modified Zubulake test for reasonable accessibility based on “undue burden or cost” of producing the information.
        • In Zubulake I, J. Scheindlin adopted a 7-factor cost-shifting test to apply Rule 26(b)(2) to the discovery of electronic information
          • Applies only to inaccessible data (such as backup tapes)
          • Factors not weighted evenly
            • Most important: specifically tailored request and availability from other sources
            • Next most important: expense versus (a) amount in controversy and
            • (b) resources of each party
          • Sample set required before full analysis (McPeek v. Ashcroft (DDC 2001))
        • As applied by Zubulake III and other courts, generally results in partial shift in costs
          • But note: cost shifting applies only to data extraction – not to review expenses
    • Privilege and Confidentiality
      • What’s special about attorney-client privilege and client confidentiality in the context of e-discovery?
        • Heightened risk of inadvertent production
          • Vast increase in amount of information to be reviewed
          • “ Hidden” metadata or text fields invisible without proper tools or system settings
      • If waiver of privilege can be excused, what is required?
        • Reasonable review of documents prior to production
          • Ciba-Geigy Corp. v. Sandoz, Ltd. (D.N.J. 1995)
      • How can likelihood of inadvertent production be minimized?
        • Use electronic discovery-specific software
          • Lessens likelihood of inadvertent production
          • Bolsters argument for excuse of waiver
    • Recent Cases
      • Privilege not waived where emails drafted and sent through company email system
        • In re Asia Global Crossing, Ltd. , 322 B.R. 247 (S.D.N.Y. 2005).
      • Work product privilege not waived for inadvertent production of email
        • Banks v. United States , 2005 WL 974723 (W.D.Wash. Mar. 22, 2005).
    • More Recent Cases
      • Magistrate recommends adverse inference instruction and sanctions for e-discovery misconduct
        • E*Trade Securities LLC v. Deutsche Bank AG, et al. , No. 02-3711 RHK/AJB and No. 02-3682 RHK/AJB (D. Minn. Feb. 17, 2005).
      • Supreme Court Overturns Arthur Andersen's Document Destruction Conviction
        • Arthur Andersen LLP v. United States, 125 S.Ct. 2129 (U.S. 2005).
    • Hot Topics
      • Use & Abuse of File Deletion Software
      • Backup Tapes
      • Court Rules
      • Time Zone Confusion
      • Discoverability & Ability to Process
        • Instant Messaging
        • Video/Audio
        • PDAs
      • Concept Searching / Linguistic based searching applications
    • Use and Abuse of File Deletion Software
      • What’s the best way to get on the court’s bad side?
        • Use of specialized software especially suspicious
          • CyberScrub: Anderson (Minnesota 2004) – adverse inference
          • Evidence Eliminator: Kucala (Illinois 2003) – declaratory judgment on most claims
        • Deletion outside of retention policy always dangerous
          • Adopt and implement retention policy
    • Backup Tapes
      • Must tapes be preserved?
        • Zubulake IV (companies should not have to retain all backup tapes – only portions with data related to issues/key players)
        • Zubulake V (Adverse inference where employees improperly deleted emails, and backup tapes that would have enabled recovery of emails were recycled)
      • Proposed “Safe harbor” under FRCP 37
        • A proposed amendment to FRCP 37 would preclude spoliation if
          • Party takes reasonable steps to prevent loss of data; and
          • Loss results from “routine operation of the party’s electronic information system.” (may apply to tape recycling or may be limited to writing over deleted files, etc.)
    • Backup Tapes
      • What can a law firm or company do to be safe?
        • Adopt and implement records retention policy, complete with appropriate litigation hold
          • Keep limited backups
          • Go to court for protective order allowing destruction in accordance with existing records retention policy and procedures.
            • But court may order preservation of all electronic data. Dodge, Warren & Peters Ins. Services, Inc. v. Riley, (Cal. App. 4th Dist. 2003)
    • Court Rules
      • Proposed Amendments to the FRCP
        • Could go into effect as early as December 2006
        • Key proposals:
          • Early Discussion of Electronic Discovery Issues (Rules 16(b), 26(f) and Form 35)
          • Definition of Electronic Stored Information (Rule 34(a))
          • Production Format (Rule 34(b)
          • Producing Electronically Stored Information in Response to Interrogatories (Rule 33)
          • Production of Reasonable Accessible Information (Rule 26(b)(2)(b))
          • Belated Assertion of Privilege (Rule 26(b)(5)(b))
          • “ Safe Harbor” from Sanctions (Rule 37(f))
          • Subpoena for Electronically Stored Information (Rule 45)
    • New Technology
      • Discoverability & Ability to Process
        • Instant Messaging
        • Video/Audio
        • PDAs
      • Concept and linguistic-based searching applications
      • More effective approaches to reviewing huge amounts of data
    • Conclusion
      • Courts are not afraid to hold companies & their budgets accountable for deficient discovery practices.
      • Courts consider electronic data a part of mainstream discovery & are unwilling to tolerate destruction of relevant information.
      • Counsel, organizations & individuals must take affirmative steps to prevent intentional and negligent spoliation.
      • Spoliation as a result of document mismanagement is no excuse.