“ Preservation, Collection, and Production of Documents and ESI in Construction Cases ”

1. “Preservation, Collection, and Production of Documents and ESI in Construction Cases” American Bar Association Forum on the Construction Industry 2012 Fall Meeting PRESENTERS: • John FoustJones DaySan Francisco, CA • U.S. Magistrate Judge Robert B. CollingsU.S. District Court, District of Massachusetts

2. Challenges with Documents and Esi In Construction Cases Factors that Make Documents and ESI Challenging in Construction Cases • Huge volume • Broad scope of relevance • Large amount of non-text-readable data

3. Preservation of Documents, Including ESI Current State of the Law • Duty attaches as soon as there is “anticipation of litigation” • Scope extends to all documents and ESI relevant to the subject matter of the dispute • Duty to preserve requires a litigation hold and suspension of routine destruction • Requires communication with key players about preservation obligations

4. Preservation of Documents, Including ESI Application in the Construction Industry • Determining when there is “anticipation of litigation” • Will probably turn on specific facts • Work with client to issue preservation letter and ensure that necessary documents are preserved

5. Collection and production of Hard Copy Documents Current State of the Law • All relevant, responsive, non-privileged documents must be produced • Either as maintained in the ordinary course of business, or organized to respond to requests • Growing trend for courts to set protocols, especially in larger cases

6. Collection and production of Hard Copy Documents Application in the Construction Industry • Identify the record set of project documents • Desk-side interviews with key players and custodians • Identify “working files” used by the people working on the project • Make originals available or produce scanned images (with OCR) or use a combination

7. Collection and production of Electronically Stored Information Current State of the Law • Identify “key players” • Collect all relevant data associated with each key player • Produce data in the form in which ordinarily maintained or “in a reasonably usable form” • Take care to produce unaltered metadata • Growing trend for special masters and protocols

8. Collection and production of Electronically Stored Information Application in the Construction Industry • Start by locating all potential sources of ESI • Identify the various types of files • Create a comprehensive plan

9. Collection and production of Electronically Stored Information Some Suggested Practices • Consider segregating text-readable files • Process non-text-readable data efficiently • Consider producing natives • Provide access to hosted data • Use digital parameters to help structure document review

10. Concluding thoughts Preservation • Watch out for signs that litigation is anticipated • Issue litigation hold and suspend all routine destruction of documents and ESI • Identify sources and custodians early by desk-side interviews, and consider collecting and storing ESI for safe measure

11. Concluding thoughts Collection and Production • Plan ahead • Conduct a thorough investigation to identify sources and types of documents and ESI • Devise a comprehensive plan for collecting and producing in a way that treats each type and source according to its own needs