E-Discovery in the Real World Tom O’Connor Gulf Coast Legal Technology Center gulfltc

1. E-Discovery in the Real WorldTom O’ConnorGulf Coast Legal Technology Center www.gulfltc.org

2. TOPICS

3. E JARGON • ESI • Metadata • Native Format • 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 • Processing • Culling • Deduping • Denisting • Reasonably Accessible • Meet and Confer • Cost Shifting

5. 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

6. Matters • Settlements • Collections. • Security. • Reporting. • Administration. Other CMP Areas Document Database • Profiled E-Docs. • PID • Evidentiary Docs. • Expert Reports • Scanned Docs. • Correspondence • Depositions • Any E-Docs. • Financial: • Fees • Expenses • Allocations • Co-Counsel Reports • Historic: • Events • Work • Premises • Custom Plaintiff Case Defendant Claim Injured Party • Document • Links: • Any E-Docs • Work Prod. • Scanned • Reports Contact Records • Calendar: • Key Dates • Tasks • Rules-Based • 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

7. Document Management Convergence Corporate Documents (until ~2002) Compliance Records Management Discovery (paper based) Knowledge Management

8. Document Management Convergence Corporate Documents (circa 2002 to present) Compliance Records Management Knowledge Management Discovery (mixed paper/edata)

9. Document Management Convergence Corporate Documents (2008 and beyond) Compliance Records Management Knowledge Management Discovery (mostly edata)

10. THE PROBLEM • ANY type of electronic info • WP documents • Spreadsheets • Audio files • Video files • Pictures • Metadata • Corrupt data • Deleted data

11. THE PROBLEM Information gets doubledapproximately every four years • Global Disk Space Per Person (GDSP) * • 1983 20k • 1996 28MB • 2000 472MB • 1 GB • 2008 2 GB • 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

12. 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

13. 10 25,000 500 20 50,000 1 100 250,000 5 200 500,000 10 300 750,000 15 400 1,000,000 20 500 1,250,000 25 1,000 2,500,000 50 2,000 5,000,000 100 5,000 12,500,000 250 10,000 25,000,000 500 20,000 50,000,000 1 40,000 100,00,000 2 60,000 150,000,000 3 Typical PC Hard Disk Gigabytes Typical Server Hard Disk Terabytes BOXES OF BYTES = = FileSizes 1 2,500 50 Megabytes

14. PAGES PER FILE TYPE

15. Web logs Word processing documents Graphic images ESI Spreadsheets Email messages and attachments

16. Pagers Desktop hard drives Laptop hard drives Floppy discs Network servers Backup tapes Cell phones CDs/DVDs PDAs “OLD” SOURCES

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

18. PARADIGM SHIFT • Taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s 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)

19. 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

20. THE CHALLENGE “don’t be a lost ball in tall weeds”

21. A SOLUTION

22. NEW RULES

23. 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 e-mails 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

24. NEW RULES EXPLAINED

25. 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

26. CONFIDENTIALITY • METADATA • Confidential Information • Strategic Information • Proprietary Information • Trade Secrets • Client Lists

27. 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

28. 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).

29. LITIGATION HOLD

30. 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.

31. 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)

32. 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 • Counsel’s 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

33. 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.

34. 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.”

35. 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

36. DUTY OFCOMPETENCE • Communication • ABA Rule 1.4 requires that a lawyer reasonably consult with a client about the means by which to accomplish the client’s objectives in the representation and consult with the client about any relevant limitation on the lawyer’s 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

37. SEARCH TECHNOLOGY

38. SEARCH TECHNOLOGY

39. 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

40. EDRM

41. REAL WORLD EDRM

42. EMAIL

43. WHAT TO DO? • EARLY ACTIONS TO TAKE • Meet with the client • Include IT representatives • Understand the client’s 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

44. SMALL CASES • Budget conscious solutions • Common native format files • Host your own data • Programs installed locally • Smaller collections • fit on DVD or external drive • Data exchange agreement • Selection • Format • Sampling

45. SMALL CASES • Technology is not the key to successful management of e-Discovery 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.

46. 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

47. CLIENT EXPECTATIONS • Expertise • Coordination with IT • Service & Pricing • Disclosure • Approvals • Decisions • Planned • Reactive

48. RESOURCES