General Information “ The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines” published by the ABA LPM Sect. (http://www.abanet.org/abastore) LexisNexis ® Applied Discovery ® (http://www.lexisnexis.com/applieddiscovery/)
Discussion Topics 1. Preservation Notices No U.S. or Third Circuit decision exists re: preservation of electronic evidence or sanctions for failure. Zubulake decisions are recognized as setting the benchmark standards. Zubulake decisions have not been adopted by any PA federal or state court.
Preservation Notices Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Sanction determined on a “case-by-case” basis Authority to sanction arises under the FRCP and inherent powers.
Preservation Notices Duty to preserve arises when a party has notice or should have known that evidence may be relevant to litigation. Sanctions exist only if a party has a duty to preserve the destroyed evidence.
Preservation Notices Duty to preserve commonly arises when a demand letter or complaint is served. Duty to preserve may arise earlier if a party has sufficient notice or information re: a credible threat of future litigation. Duty to preserve requires more than a mere possibility of litigation. Existence of duty to preserve determined by the facts of each case.
Preservation Notices Duty to preserve extends only to “key players” in the litigation. Not every piece of evidence must be preserved; only that which is relevant.
Preservation Notices Zubulake holds that once litigation is reasonably anticipated, a party must suspend routine document destruction and put in place a “litigation hold” to ensure the preservation of relevant evidence. Inaccessible back-up tapes do not need to be subject to the “litigation hold.” Accessible back-up tapes should be placed in the “litigation hold.”
Preservation Notices Zubulake creates a duty upon both the party and its counsel to ensure that all sources of potentially relevant information are identified and placed “on hold.” Zubulake creates a duty upon counsel to oversee and monitor a party’s compliance with “litigation hold.” Proper communication is the key.
Preservation Notices Zubulake establishes guidelines that counsel should follow to avoid sanctions for electronic evidence spoliation. The Zubulake guidelines are not meant to be onerous. Zubulake holds that counsel’s actions in avoiding evidence spoliation are judged by a reasonableness standard.
Preservation Notices Use the form documents cautiously; avoid creating duties that you may not have as counsel under PA law. Forms documents should be tailored to your particular case.
Discussion Topics Rationale behind “meet and confer” requirement is early discussion and counsel involvement helps to avoid evidence spoliation. F.R.C.P. 26(f)(3) & 16(b)(5) set forth the “meet and confer” requirement. 2. Meet and Confer
Meet and Confer The “meet and confer” conference requires you to think about what the relevant sources of evidence will be in your case. Every case has different issues that should be addressed at the “meet and confer” conference.
Discussion Topics Three most common methods are interrogatories, document requests and depositions. Using more than one of these three methods is common when performing e-discovery. 3. Discovery Strategy
Discovery Strategies Interrogatories should be used to identify systems, information and people with knowledge Absent agreement or court order, F.R.C.P. 33(a) limits the # of interrogatories to 25, including subparts.
Discovery Strategies Unlike interrogatories, document requests are not subject to an express numerical limitation; they are subject to Rule 26 admonition re: abusive discovery. Document requests directed to a party can be done independently or as part of a deposition notice. Document requests can be directed to non-parties by way of a subpoena.
Discovery Strategies Consult with an e-discovery vendor or computer forensics expert. Electronically stored data should be produced in its native format with metadata.
Discovery Strategies Depositions ordinarily are used to verify that you have gathered all the relevant evidence through interrogatories and document requests. Depositions also enable a party to prepare any necessary e-discovery-related motions, including motions in limine and sanctions for spoliation of evidence. Using an e-discovery expert may be prudent.
Discussion Topics Protective orders are appropriate to combat overly broad or burdensome e-discovery requests. Need for a protective order and the grounds relating to that need are always case specific. 4. Protective Orders
Discussion Topics To prepare a well-structured e-discovery protocol, you must understand in advance what the quantity and variety of data that your client has so that you can talk to the correct “key players.” Understanding what your client’s business operations are will enable you to advocate for an e-discovery protocol that is not overly burdensome. 5. Structuring Protocols
Structuring Protocols <ul><li>Key Issues to Address in an E-Discovery Protocol: </li></ul><ul><li>Confidentiality Protection </li></ul><ul><li>Screening for Privilege </li></ul><ul><li>Data Acquisition/Preservation Procedure </li></ul><ul><li>Costs – Who Pays What? </li></ul><ul><li>Data Return/Destruction </li></ul>
Discussion Topics Selecting the proper third-party is critical for the proper and efficient handling of electronic evidence. Selecting the proper third party requires an understanding on your part as to what the needs are vis-à-vis electronic evidence: e-discovery v. computer forensics 6. Experts
Experts Confid. Certifications Qualif. & Ref. Fees Evidence Experts Other Issues To Consider Support
Experts Look for the Truth, Not the Smoking Gun. Be Fiscally Prudent, Not Cheap.