E Discovery


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E Discovery

  1. 1. e-Discovery Data Retention and Other Useful Discussion Topics
  2. 2. Document Retention Policy • Document retention means many things to many people depending on their business. • Sarbanes-Oxley’s (Sarbanes-Oxley's Document Retention Rules and Best Practices) • HIPPA • Can be mandated based on industry by either federal, or state jurisdictions, sometimes both. • Basically if you are not mandated to retain your documents, draft and adhere to your own document retention policy. This will make any electronic discovery process much more efficient. • Adhering to your own document retention policy ensures your ethical practices regarding data deletion if involved in litigation. • An effective data retention policy should: • Reduce “data artifacts” • Reduce the amount of production and review: if involved in electronic discovery • Properly store and delete company relevant data based on requirements set by the organization or mandating authority. • Address all relative data and storage options utilized by the company, pc hard disks, servers, mobile devices, tapes, archives, off-site storage
  3. 3. Electronic Discovery • Electronic discovery (or e-discovery) refers to discovery in civil litigation which deals with information in electronic format also referred to as Electronically Stored Information (ESI). Electronic information is different from paper information because of its intangible form, volume, transience and persistence. Also, electronic information is usually accompanied by metadata, which is not present in paper documents. However, paper documents can be scanned into electronic format and then manually coded with metadata. The preservation of metadata from electronic documents creates special challenges to prevent spoliation. • Electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure, effective December 1, 2006.[1] shows the changes, the complete Rules, where in particular rules 16 and 26 are of interest to electronic discovery. * source http://en.wikipedia.org/wiki/Electronic_discovery
  4. 4. Federal Rules of Civil Procedure Related to e-Discovery Rule 16. Pretrial Conferences; Scheduling; Management (a) Purposes of a Pretrial Conference. (3) discouraging wasteful pretrial activities; (b) Scheduling (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure or discovery of electronically stored information; (c) Attendance and Matters for Consideration at a Pretrial Conference. (2) Matters for Consideration (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; * Source : http://www2.law.cornell.edu/rules/frcp/Rule16.htm
  5. 5. Federal Rules of Civil Procedure Related to e-Discovery Rule 26. Duty to Disclose; General Provisions Governing Discovery (a) Required Disclosures (1) Initial Disclosures (A)In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (b) Discovery Scope and Limits. (2) Limitations on Frequency and Extent (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
  6. 6. Federal Rules of Civil Procedure Related to eDiscovery Rule 26. Duty to Disclose; General Provisions Governing Discovery (b) Discovery Scope and Limits (3) Trial Preparation: Materials. (A) Documents and Tangible Things. (B) Protection Against Disclosure. (C) Previous Statement. (5) Claiming Privilege or Protecting Trial- Preparation Materials. (B)Information Produced. (c) Protective Orders (1) In General (2) Ordering Discovery (d) Timing and Sequence of Discovery (1) Timing (2) Sequence (e) Supplementation of Disclosures and Responses. (1) In General (2) Expert Witness. (f) Conference of the Parties; Planning for Discovery (3) Discovery Plan. *source: http://www2.law.cornell.edu/rules/frcp/Rule26.htm
  7. 7. Electronically Stored Information (ESI) • Electronically stored information, for the purpose of the Federal Rules of Civil Procedure (FRCP) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. The term has become a legally defined phrase as the U.S. government determined for the purposes of the FRCP rules of 2006 that promulgating procedures for maintenance and discovery for electronically stored information was necessary. [1] • Types of ESI (1)Native Files (Office documents ect…) (2)Logical Data (RAM) [1]source: http://en.wikipedia.org/wiki/Electronically_stored_information_(Federal_Rules_of_Civil_Procedure) [2] Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure http://www.law.northwestern.edu/journals/njtip/v4/n2/3/
  8. 8. e-Discovery as Experienced The process as experienced: • Requesting attorney/party issues legal hold (usually broad), or requests financial impact information for the legal hold they are about to request. • Responding attorney/party rebuts request as too broad or implements legal hold on electronic information to the specified requirements of the request. • Parties conference and discovery requirements are mandated. • Responding party performs discovery on the data specified in the time frame required. • Information/documents produced from the discovery are given to counsel to review for privileged information. • Non-privileged information is given to requesting party in the specified required formats. Note: IT Department staff may be depositioned by requesting party counsel to assist them in developing their discovery requirements. • Typically this is a “data hunt” by the complainant counsel to discover what types of data are available, any data retention policies that exist, and in what formats the data is in. • This may even get into “known” information such as if the IT personnel is aware of any data destruction that has occurred since a legal hold has been requested. Or, if the IT personnel has assisted any specific employees in question with data deletion.
  9. 9. Legal Hold • With changes to the Federal Rules, the landmark Zubulake and Morgan Stanley cases, and the Supreme Court analyzing how document retention policies are enforced, corporate practices around the retention/ destruction of electronically stored information (ESI) have never been more important. • The “legal hold” operates at the intersection of litigation and corporate retention practices, and it has emerged as an almost-obligatory component of a company's response to notice or reasonable anticipation of litigation. The basis of this obligation is the common law duty against spoilation; that is, the duty to avoid the loss of, destruction of, or failure to preserve information that may be relevant to pending or potential proceedings. • In a pre-digital age, this duty was fairly straightforward: Don’t burn or shred the documents in your desk drawers or file cabinets. But modern businesses generate massive amounts of digital information, which is created and stored in an ever- expanding number of devices and locations, and which can be destroyed without any affirmative action. As a result, effective legal hold practices involve significantly more than merely issuing an internal letter and sitting back until the official discover process begins. * source : http://www.lexisnexis.com/applieddiscovery/lawlibrary/whitePapers/ADI_WP_LegalHolds.pdf
  10. 10. The Sedona Conference® Best Practices Recommendations & Principles for Addressing Electronic Document Production 1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation. 2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy 3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities 4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production 5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information 6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information 7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate
  11. 11. The Sedona Conference® Best Practices Recommendations & Principles for Addressing Electronic Document Production 8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities 9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information 10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information 11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information 12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case 13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party 14. Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party
  12. 12. Discussion Points • Legal professionals don’t fully understand information technology and the extent of their requests. How does this impact IT/IS? • Using cost-shifting as an effective tool to reducing e- Discovery requests. • Why would my company need a data retention policy? • Is data governance important to managing litigious corporate data? • Ethical, practical, and efficient data retention • Does it exist? • Who’s managing it?