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E-Discovert Ethhics CLE April 25 2010
 

E-Discovert Ethhics CLE April 25 2010

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E-discovery ethics CLE course taught at the Orange County, Florida Bar Association's Small Firm and Solo Practice Committee meeting on April 25, 2010.

E-discovery ethics CLE course taught at the Orange County, Florida Bar Association's Small Firm and Solo Practice Committee meeting on April 25, 2010.

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  • <br />
  • 1. 10+ years as a systems engineer = geek cred <br /> 2. 3+ years doing e-disco <br /> 3. Asked by Hon. Jose Rodriguez to put this together for another CLE/CJE program at Barry <br /> 4. Chocolate <br />
  • <br />
  • maintaining confidentiality and preserving inviolate the secrets of client communications <br />
  • maintaining confidentiality and preserving inviolate the secrets of client communications <br />
  • electronic communications between client and attorney, including text (SMS) messages, email messages, instant messages (IMs), fax messages, and voice mail <br />
  • electronic communications between client and attorney, including text (SMS) messages, email messages, instant messages (IMs), fax messages, and voice mail <br />
  • Either: 1. the Rules Regulating The Florida Bar; or 2. The Rules of Professional Conduct <br />
  • Either: 1. the Rules Regulating The Florida Bar; or 2. The Rules of Professional Conduct <br />
  • protect client confidences and abidie all statutes or rules controlling privileged communications <br />
  • protect client confidences and abidie all statutes or rules controlling privileged communications <br />
  • privileged <br />
  • privileged <br />
  • Electronically Stored Information <br />
  • Electronically Stored Information <br />
  • metada <br />
  • metada <br />
  • numerical values that uniquely identify individual data files, including even minor revisions of the &#x201C;same&#x201D; file <br />
  • numerical values that uniquely identify individual data files, including even minor revisions of the &#x201C;same&#x201D; file <br />
  • Original file format (whatever that may be) <br />
  • Original file format (whatever that may be) <br />
  • double deleted files <br />
  • double deleted files <br />
  • Types of searches <br />
  • Types of searches <br />
  • legacy files <br />
  • legacy files <br />
  • Follow: <br /> 1. FRCP <br /> 2. Federal court decisions <br /> 3. Sedona Principles <br />
  • Follow: <br /> 1. FRCP <br /> 2. Federal court decisions <br /> 3. Sedona Principles <br />
  • In the event of inadvertent disclosure, Must notify the party that received the information of the claim of privilege and the basis for it. <br /> After being notified, a party1. Must promptly return, sequester, or destroy the specified information;2. Must not use or disclose the information until the claim is resolved.3. Must take reasonable steps to retrieve the information if the party disclosed it before being notified; and 4. May promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. <br />
  • In the event of inadvertent disclosure, Must notify the party that received the information of the claim of privilege and the basis for it. <br /> After being notified, a party1. Must promptly return, sequester, or destroy the specified information;2. Must not use or disclose the information until the claim is resolved.3. Must take reasonable steps to retrieve the information if the party disclosed it before being notified; and 4. May promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. <br />
  • 12/1/2006 <br />
  • 12/1/2006 <br />
  • Zubulake v. U.S.B. Warburg (I-V), SDNY 2004, Judge Shira Aa. Sheindlin <br />
  • Zubulake v. U.S.B. Warburg (I-V), SDNY 2004, Judge Shira Aa. Sheindlin <br />
  • become fully familiar with the client&#x2019;s data retention architecture <br />
  • become fully familiar with the client&#x2019;s data retention architecture <br />
  • become fully familiar with the client&#x2019;s data retention architecture <br />
  • become fully familiar with the client&#x2019;s data retention architecture <br />
  • We will accept any two of these: <br /> What are tapes, hard drives, portable storage devices (thumb/jump drives), networks, mobile devices (cell phones, pagers), home computers, PBX (voicemail) systems, RAID arrays, or servers? <br />
  • We will accept any two of these: <br /> What are tapes, hard drives, portable storage devices (thumb/jump drives), networks, mobile devices (cell phones, pagers), home computers, PBX (voicemail) systems, RAID arrays, or servers? <br />
  • &#x201C;failure to adhere to contemporary standards&#x201D; <br /> <br /> Sanctions included: <br /> 1. Adverse jury instruction that plaintiffs were grossly negligent in performing their discovery obligations and had lost evidence as a result; and that jury could adopt a rebuttable presumption that the lost evidence was relevant and would have favored the defendants; and&#xA0; <br /> 2. Monetary sanctions requiring plaintiffs to pay the defendants&apos; reasonable attorney&apos;s fees and costs attributable to the discovery dispute.&#xA0; <br /> 3. Requirement to provide further discovery if possible, noting that the goal of discovery is "to obtain evidence, not to issue sanctions."&#xA0;&#xA0;&#xA0; <br />
  • &#x201C;failure to adhere to contemporary standards&#x201D; <br /> <br /> Sanctions included: <br /> 1. Adverse jury instruction that plaintiffs were grossly negligent in performing their discovery obligations and had lost evidence as a result; and that jury could adopt a rebuttable presumption that the lost evidence was relevant and would have favored the defendants; and&#xA0; <br /> 2. Monetary sanctions requiring plaintiffs to pay the defendants&apos; reasonable attorney&apos;s fees and costs attributable to the discovery dispute.&#xA0; <br /> 3. Requirement to provide further discovery if possible, noting that the goal of discovery is "to obtain evidence, not to issue sanctions."&#xA0;&#xA0;&#xA0; <br />
  • What is abuse of e-discovery? <br /> <br />
  • What is abuse of e-discovery? <br /> <br />
  • 80% <br />
  • 80% <br />
  • either: <br /> What is producing a privileged email or other electronic document? <br /> What is failing to follow the client&#x2019;s document retention policy? <br />
  • either: <br /> What is producing a privileged email or other electronic document? <br /> What is failing to follow the client&#x2019;s document retention policy? <br />
  • mandatory waiver of privilege during the deposition of counsel <br />
  • mandatory waiver of privilege during the deposition of counsel <br />
  • treating e-discovery nonchalantly <br />
  • treating e-discovery nonchalantly <br />
  • legal elements of a claim or defense <br />
  • legal elements of a claim or defense <br />
  • Relevant and properly authenticated. <br />
  • Relevant and properly authenticated. <br />
  • Middle District of Florida <br />
  • Middle District of Florida <br />
  • Complex Business Litigation Division Amended Procedures for the Thirteenth Judicial Circuit Court in and for Hillsborough County, Florida <br />
  • Complex Business Litigation Division Amended Procedures for the Thirteenth Judicial Circuit Court in and for Hillsborough County, Florida <br />
  • negligent <br />
  • negligent <br />
  • <br />

E-Discovert Ethhics CLE April 25 2010 E-Discovert Ethhics CLE April 25 2010 Presentation Transcript

  • Keeping Inviolate Clients’ Secrets in the Age of Electronic Communications, Websites, and Emails A Game of E-Discovery Jeopardy Suzanne D. Meehle Innes & Meehle, P.L. 730 Maitland Avenue Altamonte Springs, Florida 32701 Phone 407-792-6503 Fax 407-792-6504 Email suzanne@innesmeehle.com
  • WHO ARE YOU? AND WHY SHOULD I LISTEN TO YOU ANYWAY? Hi! I’m Suzanne. I grew up in Huntsville, Alabama - home of Werner Von Braun’s rocket program - and moved to Central Florida in 1999. I graduated magna cum laude from the University of Alabama in Huntsville with a Bachelor of Arts in English in 1991. Despite my liberal arts background, I stumbled into a 10+ year as a systems engineer working for a number of start-up software and heath care technology firms as well as running my own consulting business. In plain English,I was a computer network and database “geek,” and I really understand computer systems: networks, operating systems, databases, data warehouses, email servers, ... you get the idea. I went on to obtain a Juris Doctor from Barry University School of Law, graduating cum laude in 2003. I previously worked as an associate with ShuffieldLowman, where I specialized in corporate transactions and intellectual property.  Because of my background, I also became the “go to” person when e-discovery issues reared their ugly heads in our litigation department. Most of the time, I happily worked on the side of litigation avoidance, but I have drafted my share of litigation hold letters and given plenty of lectures to my clients about preservation of electronic evidence. Oh, and in December 2008, I received my certification in e-discovery from Kroll Ontrack. And if that doesn’t convince you, there’s always the chocolate.
  • RULES • At the top of the screen you will see the selected topic or category. (Sorry! You don’t get to choose the category.) • An answer will appear on the screen before you. • Raise your hand quickly if you know the response and wait to be called. • Remember that your response must be in the form of a question.
  • Oath Text
  • Oath Text This duty is imposed on Florida lawyers by the Oath of the Florida Bar regarding client communications.
  • Oath Text This duty is imposed on Florida lawyers by the Oath of the Florida Bar regarding client communications. What is maintaining confidentiality and preserving inviolate the secrets of client communications?
  • Oath Text
  • Oath Text These days, client communications include all of these.
  • Oath Text These days, client communications include all of these. What are electronic communications between client and attorney, including text (SMS) messages, email messages, instant messages (IMs), fax messages, and voice mail.
  • GENERAL ETHICS
  • GENERAL ETHICS Florida lawyers must abide by this code of ethics and responsibility.
  • GENERAL ETHICS Florida lawyers must abide by this code of ethics and responsibility. What are the Rules Regulating The Florida Bar (or more specifically, Section 4 - The Rules of Professional Conduct)?
  • GENERAL CONFIDENTIALITY
  • GENERAL CONFIDENTIALITY This duty is imposed on Florida lawyers regarding client communications.
  • GENERAL CONFIDENTIALITY This duty is imposed on Florida lawyers regarding client communications. What is protecting the confidences of all clients and abiding all statutes or rules now in effect or hereafter to be enacted controlling privileged communications?
  • ELECTRONIC COMMUNICATION
  • ELECTRONIC COMMUNICATION The Rules regard electronically stored client communication as this.
  • ELECTRONIC COMMUNICATION The Rules regard electronically stored client communication as this. What is privileged? (Yeah - it’s obvious, but give it a minute to sink in. That means that those emails and cell phone calls have to be secure!)
  • GLOSSARY
  • GLOSSARY “ESI”
  • GLOSSARY “ESI” What is the commonly-used abbreviation for “Electronically Stored Information?”
  • GLOSSARY
  • GLOSSARY This type of information deals with a particular data set which describes how, when and by whom the data was collected, created, accessed, or modified and how it is formatted and is fully discoverable.
  • GLOSSARY This type of information deals with a particular data set which describes how, when and by whom the data was collected, created, accessed, or modified and how it is formatted and is fully discoverable. What is “metadata?” See The Sedona Guidelines: Best Practice Guidelines & Commentar y for Managing Information & Records in the Electronic Age.
  • GLOSSARY
  • GLOSSARY Hash algorithms
  • GLOSSARY Hash algorithms What are the numerical values assigned to individual data files that uniquely identify each electronic file every time it is moved, printed, altered or otherwise “handled” by a computer user?
  • GLOSSARY
  • GLOSSARY Native format
  • GLOSSARY Native format What is the original file format that an application uses internally when creating a document, database or other ESI?
  • GLOSSARY
  • GLOSSARY These files have been deleted and are no longer listed in the operating system but are located on a hard drive or other stored device, in whole or in part, because they have not yet been overwritten.
  • GLOSSARY These files have been deleted and are no longer listed in the operating system but are located on a hard drive or other stored device, in whole or in part, because they have not yet been overwritten. What are “double deleted” files?
  • GLOSSARY
  • GLOSSARY Keyword, Boolean, proximity and concept are four of these.
  • GLOSSARY Keyword, Boolean, proximity and concept are four of these. What are types of searches?
  • GLOSSARY
  • GLOSSARY These are files that may NOT be “reasonably accessible” because they require obsolete, no longer used, or not easily available software.
  • GLOSSARY These are files that may NOT be “reasonably accessible” because they require obsolete, no longer used, or not easily available software. What are legacy files?
  • THE NEW RULES
  • THE NEW RULES Though Florida has yet to adopt formal statewide rules for dealing with electronic evidence, most State judges, when confronted with e-discovery issues, do this.
  • THE NEW RULES Though Florida has yet to adopt formal statewide rules for dealing with electronic evidence, most State judges, when confronted with e-discovery issues, do this. What is follow the Federal Rules of Civil Procedure and federal court decisions regarding e-discovery?
  • THE NEW RULES
  • THE NEW RULES How a party may be able to recover from an inadver tent disclosure of privileged communication.
  • THE NEW RULES How a party may be able to recover from an inadver tent disclosure of privileged communication. What is the “clawback” provision of FRCP Rule 26(b)(5)(B)? Rule 25(b)(5)(B) states: “If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”
  • THE NEW RULES
  • THE NEW RULES The new Federal Rules of Civil Procedure dealing with e-discovery went into effect on this date.
  • THE NEW RULES The new Federal Rules of Civil Procedure dealing with e-discovery went into effect on this date. What is December 1, 2006? (Not so “new,” are they?)
  • THE NEW RULES
  • THE NEW RULES The five-part e-discovery rulings in this case, which predates the 2006 FRCP, highly influenced the “new” Rules as well as the courts that have interpreted the Rules.
  • THE NEW RULES The five-part e-discovery rulings in this case, which predates the 2006 FRCP, highly influenced the “new” Rules as well as the courts that have interpreted the Rules. What is Zubulake v. USB Warburg?
  • E-DISCO INFERNO
  • E-DISCO INFERNO
  • E-DISCO INFERNO The so-called “Zubulake duty” refers to the lawyer’s duty to do this under FRCP 26(f)?
  • E-DISCO INFERNO The so-called “Zubulake duty” refers to the lawyer’s duty to do this under FRCP 26(f)? What is becoming fully familiar with the client’s data retention architecture?
  • E-DISCO INFERNO The so-called “Zubulake duty” refers to the lawyer’s duty to do this under FRCP 26(f)? What is becoming fully familiar with the client’s data retention architecture? Rule 26(f) requires that the parties to litigation meet and confer early in the litigation to discuss the scope of and agree on rules for discovery, during which counsel must be prepared to provide details regarding the location of and nature of any relevant ESI.
  • E-DISCO INFERNO
  • E-DISCO INFERNO These are two of the many places where relevant data may be stored (e.g. where the lawyer will be expected to look) .
  • E-DISCO INFERNO These are two of the many places where relevant data may be stored (e.g. where the lawyer will be expected to look) . We will accept any two of these: What are tapes, hard drives, portable storage devices (thumb/jump drives), networks, mobile devices (cell phones, pager s), home computers, PBX (voicemail) systems, RAID arrays, or servers?
  • E-DISCO INFERNO
  • E-DISCO INFERNO How Judge Sheindlin defines “gross negligence” in preserving electronic evidence in  Pension Comm. of the Univ. of Montreal Pension Plan v.   Banc of America Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). 
  • E-DISCO INFERNO How Judge Sheindlin defines “gross negligence” in preserving electronic evidence in  Pension Comm. of the Univ. of Montreal Pension Plan v.   Banc of America Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010).  “After a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence... (T)he following failures support a finding of gross negligence...: to issue a written litigation hold, to identify the key players and to ensure that their electronic and paper records are preserved, to cease the deletion of email or to preserve the records of former employees that are in a party’s possession, custody, or control, and to 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.
  • E-DISCO INFERNO
  • E-DISCO INFERNO Ralph Losey, in his book Introduction to e- Discovery, calls this “the number one trend” in e-discovery.
  • E-DISCO INFERNO Ralph Losey, in his book Introduction to e- Discovery, calls this “the number one trend” in e-discovery. What is abuse of e-discovery? The large volume of information that is stored electronically by many companies has led some lawyers to make discovery battles more important than the actual merits of the case.
  • E-DISCO INFERNO
  • E-DISCO INFERNO This is the estimated percentage of electronic records that are never converted to paper in the ordinary course of business.
  • E-DISCO INFERNO This is the estimated percentage of electronic records that are never converted to paper in the ordinary course of business. What is 80%? That means... Most of the time you cannot authenticate a printout of an e-mail as “kept in the ordinary course of business.”
  • E-DISCO INFERNO
  • E-DISCO INFERNO This is a common way that lawyers inadvertently waive privilege.
  • E-DISCO INFERNO This is a common way that lawyers inadvertently waive privilege. We will take either: 1. What is producing a privileged email or other electronic document? 2. What is failing to follow the client’s document retention policy?
  • E-DISCO INFERNO
  • E-DISCO INFERNO In the context of e-discovery spoliation, courts have sometimes allowed this erosion of attorney-client privilege.
  • E-DISCO INFERNO In the context of e-discovery spoliation, courts have sometimes allowed this erosion of attorney-client privilege. What is the mandatory waiver of privilege during the deposition of counsel regarding document preservation, collection and production?
  • E-DISCO INFERNO
  • E-DISCO INFERNO Lawyers most often make inadvertent disclosures of privileged information by doing this.
  • E-DISCO INFERNO Lawyers most often make inadvertent disclosures of privileged information by doing this. What is treating electronic discover y nonchalantly? See Gragg v. International Management Group, Inc., 2007 WL 1074894 (N.D.N.Y April 2007) (determining that in-house counsel, who delegated preparation and production of ESI to non-attorney assistant, and outside counsel, who forwarded the same to plaintiff ’s attorney without reviewing the production, had voluntarily waived privilege through their nonchalance).
  • E-DISCO INFERNO
  • E-DISCO INFERNO Metadata is useful in establishing or discounting this.
  • E-DISCO INFERNO Metadata is useful in establishing or discounting this. What are the legal elements of a claim or defense (especially when used to show knowledge, notice or spoliation of evidence)?
  • E-DISCO INFERNO
  • E-DISCO INFERNO Useful or not, to be admitted into evidence metadata must also be this.
  • E-DISCO INFERNO Useful or not, to be admitted into evidence metadata must also be this. Relevant and properly authenticated.
  • E-DISCO INFERNO
  • E-DISCO INFERNO This court specifically ordered metadata production by enumerating relevant metadata fields, thereby creating a blueprint for metadata production for other courts.
  • E-DISCO INFERNO This court specifically ordered metadata production by enumerating relevant metadata fields, thereby creating a blueprint for metadata production for other courts. What is the Middle District of Florida? See In re Seroquel Prods. Liab. Litig., 2007 WL 219989 (M.D. Fla., Jan. 26, 2007) (U.S. Magistrate Judge David A. Barker found that sanctions were warranted for the defendant's "purposefully sluggish" ESI production and failure to produce "usable" or "reasonably accessible" documents).
  • E-DISCO INFERNO
  • E-DISCO INFERNO Issued in August 2009, the first set of e-discovery rules, following in large part the Federal Rules, sets the standard for e-discovery in Florida State courts.
  • E-DISCO INFERNO Issued in August 2009, the first set of e-discovery rules, following in large part the Federal Rules, sets the standard for e-discovery in Florida State courts. What are the Complex Business Litigation Division Amended Procedures for the Thirteenth Judicial Circuit Court in and for Hillsborough County, Florida? Orange County may be next if the judges have their way. Bottom line - Florida judges “get” e-discovery!
  • FINAL JEOPARDY: “NOT MY JOB”
  • FINAL JEOPARDY: “NOT MY JOB” In In re A & M Florida Properties II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010), Plaintiff ’s lawyers were found to be this when they over- delegated to their client the lawyers’ duty to find and collect digital evidence.
  • FINAL JEOPARDY: “NOT MY JOB” In In re A & M Florida Properties II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010), Plaintiff ’s lawyers were found to be this when they over- delegated to their client the lawyers’ duty to find and collect digital evidence. What is negligent? While the Bankruptcy Court found no bad faith on the part of the lawyers or their clients, the Court determined that the lawyers’ failure to adequately educate their clients regarding the need to preserve and search email archives was negligent.
  • Suzanne D. Meehle Email: suzanne@innesmeehle.com Web: http://www.innesmeehle.com