E-Discovery in the Real World

Tom OConnor Gulf Coast Legal Technology Center www.gulfltc.org

TOPICS

E JARGON

ESI

Metadata Native Format

Processing

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

Culling Deduping Denisting

Reasonably Accessible Meet and Confer Cost Shifting

A Brief Look Back

1990 to 2002
Litigation was mostly paper based Legal profession was slow to embrace computerization Corporate IS applications operated as separate information Silos Records Retention and Compliance requirements were not taken seriously

Other CMP Areas Reports Financial:

Fees Expenses Allocations Co-Counsel Matters Settlements Collections. Security. Reporting. Administration.

Historic:

Plaintiff

Events Work Premises Custom

Defendant

Case
Injured Party

Claim
Document Links:

Contact Records

Calendar:
Key Dates Tasks RulesBased

Any E-Docs Work Prod. Scanned Reports

Document Database
Profiled E-Docs. PID Evidentiary Docs. Expert Reports Scanned Docs. Correspondence Depositions Any E-Docs.

Address Book:
Link to all Parties Plaintiff Defendant Oppos. Counsel Staff Experts/Drs. Co-counsel Etc.

Staffing:
Tasks User Profiles Security

Deposition Tracking Discovery Tracking

Document Management Convergence

Corporate Documents (until ~2002)

Records Management

Compliance

Discovery (paper based)

Knowledge Management

Document Management Convergence

Corporate Documents (circa 2002 to present)

Records Management

Compliance Knowledge Management

Discovery (mixed paper/edata)

Document Management Convergence

Corporate Documents (2008 and beyond) Compliance

Records Management
Discovery (mostly edata)

Knowledge Management

THE PROBLEM

ANY type of electronic info

WP documents Spreadsheets Audio files Video files Pictures

Metadata Corrupt data Deleted data

THE PROBLEM
Information gets doubled approximately every four years Global Disk Space Per Person (GDSP) * 1983 20k 1996 28MB 2000 472MB 2004 1 GB 2008 2 GB 2010 4 GB Average corporate hard drive holds 100 GB of data
Information Explosion. Confidentiality, Disclosure, and Data Access: Theory and Practical Applications for Statistical Agencies

THE PROBLEM
4 billion US emails every day

392 million per second

I trillion texts in Q3 & Q4 2010

294 billion messages per day worldwide

Source: www.about.com

BOXES OF BYTES
=
1
10
20 100 200 Typical Server Hard Disk Typical PC Hard Disk 300 400 500 1,000 2,000 5,000 10,000 20,000 40,000 60,000

=
2,500
25,000
50,000 250,000 500,000 750,000 1,000,000 1,250,000 2,500,000 5,000,000 12,500,000 25,000,000 50,000,000 100,00,000 150,000,000

File Sizes

50
500
1 5 10 15 20 25 50 100 250 500 1 2 3

Megabytes

Gigabytes

Terabytes

PAGES PER FILE TYPE

Document Type

Average Pages/Doc
8

Average Pages/GB
64,782

Average Pages/MB
63

Microsoft Word files

Email files Microsoft Excel files

Lotus 1-2-3 files Microsoft PowerPoint files Text Files

1.5 50
55 14 20

100,099 165,791
287,317 17,552 677,963

97 161
280 17 662 15

Image Files

1.4

15,477

14

ESI

Web logs Word processing documents

Graphic images Spreadsheets

Email messages and attachments

OLD SOURCES

Pagers

Desktop hard drives

Laptop hard drives Backup tapes Floppy discs

Network servers

Cell phones

CDs/DVDs

PDAs

NEW SOURCES
IM and Texting VOIP MP3 Storage Devices (iPods) Memory sticks/flash drives GPS Retail purchase card databases Social Media

PARADIGM SHIFT

Taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling ones opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.
Magistrate Judge John M. Facciola Covad Comm. Co. v. Revonet,Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009)

PARADIGM SHIFT
Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust. Hon. Lee Rosenthal

Chair, Standing Committee of the Judicial Conference

THE CHALLENGE

dont be a lost ball in tall weeds

A SOLUTION

NEW RULES

NEW LITIGATION RISKS

Price Waterhouse Cooper (2003) $345 million for overly slow production Phillip Morris (2004) -- $27.5 million sanction against 11 senior executives who failed to preserve emails Coleman Holdings v. Morgan Stanley (2005). . . $604 million in compensatory damages and $805 million in punitive damages after adverse instruction

Qualcom v Broadcom (2007) : attorneys reported to state bar

Victor Stanley, Inc. v. Creative Pipe, Inc.: $1M in sanctions and jail

NEW RULES EXPLAINED

DUTIES OF COUNSEL

Duty of Confidentiality Duty of Competence Duty of Loyalty: Conflicts with Clients Duty to Comply with Discovery Obligations Duty to Preserve Evidence

CONFIDENTIALITY
METADATA
Confidential

Information Strategic Information Proprietary Information Trade Secrets Client Lists

DUTY TO PRESERVE

When faced with anticipated or pending litigation or government investigation matters, corporations have a obligation to preserve potentially relevant evidence Preservation requires preventing willful or inadvertent destruction or alteration (spoliation) Records and information management is a key component, especially where it can be used to suspend document destruction The duty to preserve goes beyond documents under records management to wherever and in whatever format the potentially relevant evidence resides

DUTY TO PRESERVE
Once the subjects and information systems are identified, e-mail records and electronic files of key individuals and departments will be the most obvious candidates for preservation. (Advisory Committee Notes to Amendments to Fed. R. Civ. P. 37)

[T]he duty to preserve extends to those employees likely to have relevant information the key players in the case. (Zubulake IV, 220 F.R.D. at 217-18).

LITIGATION HOLD

DUTY TO BE PROACTIVE

Zubulake v. UBS Warburg (S.D.N.Y. 2004)

Phoenix Four, Inc. v. Strategic Resources Corp. (S.D.N.Y.2006)

ABA Civil Discovery Standard 10a

duty to advise client of preservation duty & consequences

Samsung Electronics Co., Ltd. v. Rambus, Inc. 2006 WL 2038417 (E.D.Va.)

General admonitions by counsel to preserve relevant documents is insufficient and counsel must instruct on the subject matter and kinds of documents to preserve.

DISCOVERY OBLIGATIONS

ABA Rule 3.4: A lawyer shall not

unlawfully obstruct another party' s access to evidence ABA Model Rule 3.4 (a) Counsel or assist a client to do so ABA Model Rule 3.4 (a) Fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party ABA Model Rule 3.4 (d)

DIRECT DISCOVERY

Counsel must actively oversee and direct the discovery and preservation process. Merely issuing an order or memo is not enough Zubulake V is clearest exposition of duties

Counsels duty to oversee extends to: the preservation of evidence the location of responsive information the timely production of responsive information
ABA Rule 5.3 requires lawyers to supervise all nonlawyer assistants

DUTY RE: REASONABLY ACCESSIBLE DATA

FRCP 26: [A] party need not provide discovery of information that the party identifies as not reasonably accessible; The producing party has the burden to show that requested electronic information is not accessible; and A court may order the production of inaccessible electronic information for good cause, if the requesting party seeks a court order compelling its production.

DUTY TO CONFER EARLY

FRCP 26 requires parties, before the initial case management conference, to:

(a) discuss any issues relating to preserving discoverable information; and (b) to present to the court a discovery plan setting forth the parties views concerning any issues relating to disclosure or discovery of electronically stored information, including the form in which it should be produced.

DUTY TO CONFER EARLY

Sedona Conference Cooperation Proclamation Mancia v. Mayflower Textile Services Co. (Civ. No. 1:08-CV-00273-CCB ,D. Md.

October 15, 2008)

Agree on search terms Cut cost BEFORE review J.Schiendlin EECA

DUTY OF COMPETENCE

Communication

ABA Rule 1.4 requires that a lawyer reasonably consult with a client about the means by which to accomplish the clients objectives in the representation and consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance that is not permitted by the rules or other laws.

Meritorious Claims Reporting Misconduct Technology

SEARCH TECHNOLOGY

SEARCH TECHNOLOGY

DUTY OF LOYALTY
Conflicts

with Clients

Scope of discovery effort Scope of preservation

Coleman (Parent) Holdings Inc. v. Morgan Stanley, Inc.,

2005 WL 674885 (Fla.Cir.Ct., 2005.) [$1.4 billion judgment, rev'd on other grounds, based on discovery misconduct.

Qualcomm v. Broadcom

EDRM

40

REAL WORLD EDRM

ELECTRONICALLY STORED INFORMATION PRESERVATION
Portable Devices, Hard Drives

Desktop Computers

Laptop Computers

Servers Email, File, Ecommerce

Removable USB Drives, Flash Media

CO LL EC

Forensics Copy, Image, Mirror

FILTER
E-Discovery Forensics

C RO P

S ES

Copied Data

Security Hash

Secure Storage

PRODUCTION

De De Dup Dup
De-Duplication

Filtering by Term, Date, Author, etc

Data Carve for double deleted

CO NV
Forensics Investigation, Review and Reporting

A
Native

Z
PDF, TIFF

ER

File Conversion PDF, Metadata, etc.

Digital Redaction and Clawback

Load File Creation

41

EMAIL

WHAT TO DO?
EARLY ACTIONS TO TAKE 1. Meet with the client a. Include IT representatives b. Understand the clients systems and policies 2. Issue Litigation Hold. 3. Agree (to the extent possible) on ESI and e-discovery issues before the initial conference with the court

SMALL CASES

Budget conscious solutions Common native format files Host your own data Programs installed locally Smaller collections

fit on DVD or external drive

Selection Format Sampling

Data exchange agreement

SMALL CASES

Technology is not the key to successful management of eDiscovery in small cases

The single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low cost solutions.

TAKE AWAYS

Understand the Distinctive Characteristics of ESI Become Familiar With ESI Storage Systems Learn About Records Management Programs and Policies Project Management is Critical Consulting as a Service Play Educate Your Client On Their Preservation and Discovery Duties

CLIENT EXPECTATIONS
Expertise Coordination with IT Service & Pricing

Disclosure Approvals

Decisions
Planned Reactive

RESOURCES