I presented comprehensive e-discovery webinar with Eric Mandel, national e-discovery counsel and leader of the information law practice group at Zelle Hofmann Voelbel & Mason LLP. Here are a selection of the slides that I created for the presentation

1. Mastering
Electronic Discovery
Brendan M. Kenny
Blackwell Burke
Minneapolis, MN
Eric P. Mandel
Zelle Hofmann
Minneapolis, MN

2. Don’t Be an Unreliable Narrator

3. The Unreliable Narrator and Law
Within the field of literature, the unreliable narrator is a
storyteller who violates our trust.
Whatever the cause, the reader starts to notice things
that suggest that the narrator is either lying or doesn’t
understand what is really going on.

5. Logical Fallacies
https://bookofbadarguments.com/

6. Appeal to Ignorance & Spoliation
https://bookofbadarguments.com/

7. Affirming the Consequent
https://bookofbadarguments.com/

8. Section 5
Drafting &
Responding to
Requests for
E-Discovery Under
the Revised Rules

9. Protecting Privileged Material During
E-Discovery

10. (3) Contents of the Order. * * *
(B) Permitted Contents. The scheduling
order may:
(iii) provide for disclosure, or discovery,
or preservation of electronically
stored information;
(iv) include any agreements the parties
reach for asserting claims of privilege
or of protection as trial-preparation
material after information is produced,
including agreements reached
under Federal Rule of Evidence 502
Rule 16 Order

11. Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, [considering the
amount in controversy, the importance of the issues at
stake in the action,] considering the importance of the
issues at stake in the action, the amount in controversy,
the parties relative access to relevant information, the
parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Scope of Discovery: Rule 26(b)

12. Culling by Objective Criteria
http://www.papergreat.com/2014/01/old-style-ruth-manning-sanders-library.html
We want to use to cull out
irrelevant documents using these
filters:
Domain
Name
User
Date range
Custodian
Clustering

13. What Is the Case About?
Facts/admissions
Statute of limitations
Claims
Defenses

14. How Do My Client’s Systems Work?
Retention Schedule
Key Custodians
Document
Management

15. Obligations of Counsel Under Rule 26(g)

16. Metadata: How Important Is It?
What?: Data about data.
When?: Whenever lawyers
send, produce or receive ESI
containing metadata in
response to a discovery
request or subpoena.
Why?: If the history, tracking,
or management of an
electronic document matters.
How?: Review and produce
the document in a form that
maintains the metadata.
THE SEDONA CONFERENCE® COMMENTARY ON ETHICS & METADATA
What is to be done?
Work with other side to
determine how to deal
with metadata during
production.

17. Requesting Production of Native Files
Rule 34(b)(2)(E)
Producing the Documents or Electronically Stored Information.
Unless otherwise stipulated or ordered by the court, these
procedures apply to producing documents or electronically stored
information:
(i) Aparty must produce documents as they are kept in the usual
course of business or must organize and label them to
correspond to the categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form
or forms in which it is ordinarily maintained or in a reasonably
usable form or forms; and
(iii) A party need not produce the same electronically stored
information in more than one form.

18. Case Law | Metadata & Cooperation
Covad Commc’n Co. v. Revonet, Inc.
Facts: Covad moved to compel Revonet to produce
documents in native format, even though Covad never
requested that they be produced in native form and
Revonet already produced the documents in hard copy.
Outcome: Motion denied
Take Away: Parties should cooperate to figure out
forms of production in Rule 26(f), include in the Discovery
Plan, and then make it part of Rule 16 order.

19. Objective Criteria Established During 26(f)
(f) CONFERENCE OF THE PARTIES;
PLANNING FOR DISCOVERY.
(3) Discovery Plan. A discovery plan must
state the parties’ views and proposals on: * *
*
(C) any issues about disclosure, or
discovery, or preservation of electronically
stored information, including the form or
forms in which it should be produced;
(D) any issues about claims of privilege or of
protection as trial-preparation materials,
including — if the parties agree on a
procedure to assert these claims after
production — whether to ask the court to
include their agreement in an order under
Federal Rule of Evidence 502;

20. Stake out your position

21. Section 6
Admitting ESI
into Evidence
for Trial

22. Evidence Admissible Only IF
Relevant: tends to make a fact “of consequence” more or
less probable.
Authentic: prima facie showing of trustworthiness that the
document is what the party claims it to be.
Non-Hearsay: not a third-party’s out-of-court statement
offered for its truth.
Hearsay Exception: hearsay statement, but falls under
exception.
Original or Duplicate Writing: original or duplicate
required unless proven by acceptable secondary evidence.

23. Applying FRE 901 and 902 to ESI
Rule 901: Can you show that the ESI is what you say it is?
Authorizes “[e]vidence describing a process or system
used to produce a result and showing that the process or
system produces an accurate result.”
Rule 902: Is the ESI self-authenticating?
Official Publications: Books, pamphlets, or other
publications purporting to be issued by public authority.
Trade Inscriptions: Information in the document
generated in the course of business that shows ownership,
control, or origin.
Records of Regularly Conducted Activity. Document
with declaration that showing that document was created
and kept in the regular course of business.

24. Hashtags & Metadata to Meet Rule 901
“A party that seeks to introduce its own electronic records
may have just as much difficulty authenticating them as
one that attempts to introduce the electronic records of an
adversary.”
-- Judge Grimm
Hashtags: A unique numerical identifier that can be
assigned to a file, a group of files, or a portion of a file.
Metadata: Information describing the history, tracking, or
management of an electronic document.

25. Tips for Authenticating Social Media Evidence
Don’t rely on print-outs.
Use programs to capture
and authenticate.
Remember: social-media
evidence = evidence.
Don’t forget circumstantial
evidence.

26. Using Witnesses to Introduce ESI
From the creator?
From the receiver?
From anyone else who could
know?

27. Evaluating Forensic Reports and
Handling Daubert Challenges

28. Framework for Evaluating Report
How was evidence collected?
Provides sufficient details to replicate findings?
Establishes tools used?
Establishes assumptions made?

29. Case Law | ESI Forensic Report
Nucor Corp v. Bell
Background: Nucor’s forensic report
stated that data was wiped from former
employee Bell’s laptop.
Problem: Nucor moved for a default
judgment or an adverse inference jury
instruction, based partly on expert’s theory
that specialized software wiped data from
laptop hard drive.
Outcome: Motion denied
Nucor expert’s methodology insufficient to show that defendants
intentionally wiped data, especially because he arrived at his final
theories only after the defendants’expert discredited his others.

30. Applying Daubert
Testing: Can and has the scientific procedure
been independently tested?
Peer Review: Has the scientific procedure
been published and subject to peer review?
Error rate: Is there a known error rate, or
potential to know the error rate, associated with
the use of this scientific procedure?
Standards: Are there standards and
protocols for the execution of the methodology?
Acceptance: Is the scientific procedure
generally accepted by the relevant scientific
community?

31. ESI and the Rules of Hearsay
Non-Hearsay #1: Some ESI isn’t
hearsay because no person created
the document and no assertion is
made in it.
Non-Hearsay #2: Not offered to
prove assertions.
Don’t Forget Business
Records Exception!

32. Applying the Original Writing /
Best Evidence Rule
ESI offered as evidence an original or a
duplicate?
Admissible secondary evidence (e.g.,
testimony)?
Rely on summaries?
Party admissions?
Object or you waive!

33. Section 7
Ethics

35. ABA Model Rule 1.1
Competence
“A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation reasonably
necessary for the representation.”

36. Case Law | Competence
Brown v. Tellermate Holdings Ltd.
Background: Fired salespeople bring sex-
discrimination action against Tellermate.
Problem: Defense counsel did not understand how to
find and produce information on client’s salesforce.com
account and made false statements to opposing counsel
and the court.
Outcome:

37. NY Rule Prof. Conduct 4.2(a)
Communication w/ Party
“[A] lawyer shall not communicate about the
subject of a representation with a party” who the
lawyer “knows to be represented by another
lawyer in the matter” unless the lawyer has the
consent of the other lawyer or the contact is
“authorized to do so by law.”

38. The Model Rule 3.3(a)
Candor
A lawyer shall not knowingly:
(1) Make a false statement of fact or law; or
(2) Offer evidence lawyer knows to be
false.

39. The Model Rule 3.4(a)
Fairness
“A lawyer shall not unlawfully obstruct another party’s
access to evidence or unlawfully alter, destroy or
conceal a document or other material having
potential evidentiary value. A lawyer shall not counsel
or assist another person to do any such act….”

40. Ethics Hypothetical
Axis employee loses control of concrete truck,
hits Bester’s car, and kills Bester’s wife.
Employee pleads to manslaughter.
Bester hires McGuire and sues Axis under
wrongful death and loss-of-consortium theories.
Axis counsel receives Facebook message from
Bester and found on profile; served
discovery.
McGuire’s office tells Bester to “clean up”
Facebook; no Facebook photos produced; Axis
moves to compel.

41. Claims:
Loss of Consortium
What’s relevant?
In a wrongful death action in Virginia, a spouse may
recover for sorrow, mental anguish, and solace, which
can include society, companionship, comfort,
guidance, “kindly offices” and advice of the decedent.

42. Facebook Ethics
Background: At the time, Facebook allowed you to
briefly access the private Facebook of anyone who
responds to your message.
AXIS COUNSEL OUT-OF-BOUNDS?
Some what-ifs:
Bester contacted Axis’s counsel first?
Bester told Axis’s to stay away from his Facebook
page?
Bester invited Axis’s counsel to be Facebook friends?
Axis’s counsel knew that the photo was private?

43. Discovery Ethics: Relevance & Scope
Flickr/a4gpa
The Big Picture: Is the photo
relevant under any circumstances?
Some What-ifs:
Picture taken before his wife died?
Picture taken a year after wife died?
Picture taken at wedding reception
where grooms men were given
shirts and expected to behave
badly.

44. Preservation Ethics
Can Bester’s attorney tell him to delete something from his
Facebook profile without violating ethics?
Some What-ifs:
McGuire tells Bester to “clean-up” his Facebook profile
because he doesn’t want to see photos as trial exhibits?
McGuire has paralegal contact Bester and asks him to
“clean-up” Facebook profile.

45. Discovery Ethics: Preparing & Responding
Some what-ifs:
Axis sends out discovery requesting: “screen print copies on
the day this request is signed of all pages from Isaiah Lester’s
Facebook page including, but not limited to, all pictures, his
profile, his message board, status updates, and all messages
sent or received.” OR…
Axis sends out more narrowly tailored discovery request.
OR…
Bester responds to discovery with “I do not have a Facebook
page on the date this is signed.” OR…
Bester objects to discovery because no showing that evidence
is relevant.

46. Motion to Compel
What Should
Court Do?

47. Investigating Panelists and Voir Dire
Juror did not hold his card up.
Juror did not hold his card up.

48. Juror’s Social Media
“No, we are not champions of civil/human rights. In
fact, our Courts are willing to usurp and strip each
and every one of those rights in order to protect
false entities, these big businesses.”
“Our people are in bondage. The shackles of wage
slavery and money are placed silently on our
minds from birth.”

49. Monitoring Jury’s Use of Social Media

50. Protecting Client Confidentiality
in Digital Communications
Model Rule 1.6 | Confidentiality: A lawyer shall
make reasonable efforts to prevent the inadvertent
disclosure of, or unauthorized access to, information
relating to the representation of a client.

51. The FRE 502 Order Shall Set You Free

52. Case Law | Confidentiality
Alamar Ranch, LLC v. County of Boise
Held: Court found privilege was waived
regarding e-mails sent via company e-mail
addresses using company computers.
Why: Attorney should have been aware
client’s employer would be monitoring and
accessing e-mail sent to that address since
it is now a common practice.

53. Cyber-Liability and Data Breach Risks
in Managing E-Discovery
Cloud computing raises legal ethics issues, particularly
around competence and confidentiality of information
as information stored in the cloud is outside the
lawyer’s control, and is often in numerous locations,
including different countries.
Lawyers must ensure steps are taken to safeguard
security and confidentiality of client information.