E-DISCOVERY: In Ohio and Federal Courts

1. E-DISCOVERY: In Ohio and Federal Courts Understanding and Controlling Cost & Risk Katie Giumenti, Esq.Greg Krabacher, Esq. Bricker & Eckler LLP 100 South Third Street Columbus, OH 43215 kgiumenti@bricker.com 614.227.8825

2. Roadmap for Today Overview of the July 2008 Amendments to the Ohio Rules of Civil Procedure Likely Impact of Ohio Rules Based On Emerging Trends in Federal Courts

3. Ohio Rules of Civil Procedure Amended to Accommodate eDiscovery Effective Date: July 1, 2008 Apply to: All new cases Pending actions, unless not feasible or unjust

4. Terms of Art ESI: Electronically Stored Information eDiscovery: Discovery of ESI

5. Amendments to Ohio Rules of Civ. P. Based on 2006 Amendments to the Federal Rules of Civil Procedure Very Similar � BUT Not Identical Differences in the Practical Application Similarities Far Outweigh Differences

6. Scope of Discovery Amended Ohio R. Civ. P. 26(A): As before, the Scope of Discovery: Relevant, and Not Privileged (See Ohio R. Civ. P. 26(B)(1)) Now, expressly refers to discovery of ESI

7. Discovery of ESI Amended Ohio R. Civ. P. 34(A): Request for production can include ESI Amended Ohio R. Civ. P. 34(B): Request may specify the form in which ESI is to be produced But, cannot require production of ESI in more than one form

8. Reasonably Useable Form Amended Ohio R. Civ. P. 34(B)(3): IF request for ESI does not specify form of production, responding party may produce the ESI either In the form in which it is ordinarily maintained if that form is reasonably useable; or In any form that is reasonably useable

9. Exception if eDiscovery is Burdensome Amended Ohio R. Civ. P. 26(B)(4): Proper objection to discovery of ESI if production imposes: �Undue burden or expense� If motion to compel discovery or for protective order is filed: Responding party must show that ESI is �not reasonably accessible� because of undue burden or expense

10. No Black and White Test Advisory Com. Notes to Federal Rule 26(b)(2): �It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information.� Simply put: Accessibility of ESI is determined on a case-by-case basis.

11. �Good Cause� Exception EVEN IF eDiscovery causes undue burden or expense: Court may still order production of ESI IF requesting party shows �good cause�

12. Factors in Analysis of �Good Cause� Amended Ohio R. Civ. P. 26(B)(4): Is info sought unreasonably duplicative? Can info be obtained from less burdensome source? Has requesting party had ample opportunity to get info in discovery? Does the burden/expense of production outweigh its likely benefit?

13. Additional Factors Considered in Federal Courts Advisory Com. Notes to Federal Rule 26(b)(2): Can the burdens and costs of discovery of ESI that is not reasonably accessible be justified in circumstances of the case? Accessibility of ESI is determined on a case-by-case basis.

14. Duty to Preserve ESI � Triggered when litigation is �reasonably anticipated� � �[G]enerally left to the discretion of the trial judge.� (See Staff Notes to Ohio R. Civ. P. 37(F)) � Mechanisms for preservation: Litigation Hold Preservation Letter

15. Claims of Privilege Amended Ohio R. Civ. P. 26(B)(6)(a) � To Withhold Information: � Make the claim of privilege expressly; and � Describe what is withheld in sufficient detail to enable the demanding party to contest the claim.

16. Oops Rule Amended Ohio R. Civ. P. 26(B)(6)(b) � Information Produced: Built-in �Oops Rule� for how to handle mistakenly produced privileged material. Producing party must: Notify receiving party of the claim and basis for it; and Preserve the info until claim resolved.

17. Oops Rule Amended Ohio R. Civ. P. 26(B)(6)(b) (cont�d) Receiving party must: Promptly return, sequester, or destroy the info; Not use or disclose the info until claim resolved; Take reasonable steps to retrieve info if already disclosed; and May present info to the court under seal for determination.

18. Claw-Back Agreement Amended Ohio R. Civ. P. 16(9): Parties may proactively enter into a �Claw Back� Agreement to address the possible future inadvertent production of privileged info.

19. Bricker & Eckler�s eDiscovery Blog

20. Bricker & Eckler�s eDiscovery Blog www.eDiscoTech.com

21. Questions? Katie Giumenti, Esq. kgiumenti@bricker.com 614.227.8825 Columbus � Cleveland � Cincinnati-Dayton www.bricker.com

22. � Bricker & Eckler LLP Technology is Changing the Nature of Litigation In this portion of the presentation we will: Examine the challenges that set eDiscovery apart from traditional paper discovery; Take a walk through the process of eDiscovery from end-to-end; and Identify minimum requirements under the Rules as well as areas of strategic advantage.

23. � Bricker & Eckler LLP A large and rapidly expanding �Digital Universe� Challenge: the ever decreasing cost to store digital information and the ever increasing reliance on digital information for all aspects of human activity is leading to an information explosion that far, far outstrips even the impressive warehouse sized document repositories large organizations once maintained. E.g., a single 1MB email sent to four colleagues might grow to 51.5 MB by the time it has been backed up by each user�s system � including automated desktop backups, email server back ups, redundant server back ups, etc. Five (5) exabytes of new digital information created in the year 2002, equivalent to 136,000 times the Library of Congress, 92% of this was stored electronically. Lyman, Peter and Hal R. Varian. �How Much Information?� 2003. In 2006 the entire �digital universe� was roughly 180 exabytes. By 2007 it had grown to 281 exabytes. By 2011 it is projected to be roughly 1,800 exabytes (now that�s a lot of libraries of Congress!) � ten fold growth over 5 years. International Data Corporation, �The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth Through 2011� (March 2008) <http://www.emc.com/leadership/digital-universe/expanding-digital-universe.htm>. Challenge: the ever decreasing cost to store digital information and the ever increasing reliance on digital information for all aspects of human activity is leading to an information explosion that far, far outstrips even the impressive warehouse sized document repositories large organizations once maintained. E.g., a single 1MB email sent to four colleagues might grow to 51.5 MB by the time it has been backed up by each user�s system � including automated desktop backups, email server back ups, redundant server back ups, etc. Five (5) exabytes of new digital information created in the year 2002, equivalent to 136,000 times the Library of Congress, 92% of this was stored electronically. Lyman, Peter and Hal R. Varian. �How Much Information?� 2003. In 2006 the entire �digital universe� was roughly 180 exabytes. By 2007 it had grown to 281 exabytes. By 2011 it is projected to be roughly 1,800 exabytes (now that�s a lot of libraries of Congress!) � ten fold growth over 5 years. International Data Corporation, �The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth Through 2011� (March 2008) <http://www.emc.com/leadership/digital-universe/expanding-digital-universe.htm>.

24. � Bricker & Eckler LLP Challenge: Identifying where certain information may be located and how it is maintained is a complex task. Data and system �topography� maps become out of date (assuming they have been developed in the first place). The oral tradition within the IT Department does not always perfectly reflect the written policy � work arounds, short cuts, new strategies not �yet� added to the manual. Challenge: Identifying where certain information may be located and how it is maintained is a complex task. Data and system �topography� maps become out of date (assuming they have been developed in the first place). The oral tradition within the IT Department does not always perfectly reflect the written policy � work arounds, short cuts, new strategies not �yet� added to the manual.

25. The Dynamic and Fragile Nature of ESI Every time a computer is booted up �available� disk allocation space is overwritten and latent data � data that was earlier deleted but still persists on the system � may be destroyed. Metadata may be changed each time an electronic file is opened, printed, saved, etc ? Talk about both issues in a moment Every time a computer is booted up �available� disk allocation space is overwritten and latent data � data that was earlier deleted but still persists on the system � may be destroyed. Metadata may be changed each time an electronic file is opened, printed, saved, etc ? Talk about both issues in a moment

26. A Walk Through of the eDiscovery Process Iterative process � we�ll walk through these steps quickly here and in a basically linear fashion; the reality is that the process must be iterative if it will be done correctly. As your understanding of the case evolves and more information becomes known you will need to revisit these steps With each new discovery request you will need to run back through the fire drill. Better information management = less cost in doing this and lower risk of failing to meet discovery obligations Iterative process � we�ll walk through these steps quickly here and in a basically linear fashion; the reality is that the process must be iterative if it will be done correctly. As your understanding of the case evolves and more information becomes known you will need to revisit these steps With each new discovery request you will need to run back through the fire drill. Better information management = less cost in doing this and lower risk of failing to meet discovery obligations

27. � Bricker & Eckler LLP Your Information Management 2007 -- Annual Cohasset Associates Electronic Records Management Survey sponsored by ARMA AIIM 35% of respondents evaluate their program as either �marginal� (13%) or �fair� (22%)�a 6% improvement from 2004 36% of the respondents reported that their organizations follow their retention schedules either �not regularly� (20%) or only �when time permits� (16%) 40% of the organizations represented do not include electronic records in their retention schedules�only a 7% improvement from 2004 85% do not have retention practices for instant messaging 44% do not include electronic records in litigation holds�down from 65% in 2004 68% have �some� (38%), �considerable� (20%) or �great� (10%) difficulty in retrieving information from back up or archival storage media. 2007 -- Annual Cohasset Associates Electronic Records Management Survey sponsored by ARMA AIIM 35% of respondents evaluate their program as either �marginal� (13%) or �fair� (22%)�a 6% improvement from 2004 36% of the respondents reported that their organizations follow their retention schedules either �not regularly� (20%) or only �when time permits� (16%) 40% of the organizations represented do not include electronic records in their retention schedules�only a 7% improvement from 2004 85% do not have retention practices for instant messaging 44% do not include electronic records in litigation holds�down from 65% in 2004 68% have �some� (38%), �considerable� (20%) or �great� (10%) difficulty in retrieving information from back up or archival storage media.

28. � Bricker & Eckler LLP Your information management�on litigation Moral of this story � getting your electronic house in order BEFORE litigation occurs for less disruption of business activities while litigation is on-going and to reduce the costs and risks during litigation Organization and planning ahead of time is the key driver for the rest of the process. Map your systems and data storage repositories Organize and label your data repositories in a manner that makes them efficient to search � relational databases, document level XML fields, taxonomies Consider retention in light of regulatory, business, and present litigation needs Correct data storage anomalies � i.e., that stack of un-labeled DVDs with 212 gigs of who knows what Create a paper trail that resonates with the reasonableness of your approach Implement your procedures through training and quality checks � it�s a bad moment at the CIO�s deposition when he�s unable to explain the failure of the organization to follow its own procedures Review and revise on-going so that written procedures match actual practice ? More on how to prepare in advance of litigation in the next segment by Alan Ross. Moral of this story � getting your electronic house in order BEFORE litigation occurs for less disruption of business activities while litigation is on-going and to reduce the costs and risks during litigation Organization and planning ahead of time is the key driver for the rest of the process. Map your systems and data storage repositories Organize and label your data repositories in a manner that makes them efficient to search � relational databases, document level XML fields, taxonomies Consider retention in light of regulatory, business, and present litigation needs Correct data storage anomalies � i.e., that stack of un-labeled DVDs with 212 gigs of who knows what Create a paper trail that resonates with the reasonableness of your approach Implement your procedures through training and quality checks � it�s a bad moment at the CIO�s deposition when he�s unable to explain the failure of the organization to follow its own procedures Review and revise on-going so that written procedures match actual practice ? More on how to prepare in advance of litigation in the next segment by Alan Ross.

29. � Bricker & Eckler LLP �Safe Harbor� from Sanctions Amended Ohio R. Civ. P. 37(F): �Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.�

30. � Bricker & Eckler LLP �Safe Harbor� Factors to Consider Courts will consider the following factors: Whether and when the obligation to preserve was triggered; Whether info was lost due to routine alteration or deletion that attends the ordinary use of the system; Whether the party intervened in a timely fashion to prevent loss of info; Any steps taken to comply with court order or party agreement requiring preservation of specific info; and Any other relevant facts.

31. � Bricker & Eckler LLP No Port in the Storm �Safe Harbor� provision only applies to the ordinary use of the system Case Facts: Hard drives on computers of key personnel wiped out; Tampering of four PST files; Backup process modified during litigation Result: Adverse inference instruction.

32. � Bricker & Eckler LLP No Port in the Storm Legal Holds must be timely implemented � Case Facts: Defendant failed to suspend automatic e-mail deletion for over 2 years after lawsuit filed. � Result: Court ordered restoration of defendant�s backup tapes at its expense. ? Note: Could have been worse if relevant data not on back up tapes

33. � Bricker & Eckler LLP Information Management Strategies Designed to Reduce Cost & Risk Record retention schedules and formal policy for record destruction New IRS From 990 for 501(c)(3)s, Sarbanes-Oxley, Enron & WorldCom Legal hold policy and implementation strategy that is swift, defensible, and non-disruptive Litigation response protocol Advanced documentation for later litigation System diagrams, HW/SW inventory, usernames, user rights & access, encryption, back-up procedures, web, telephony, mobile devices, etc Understanding of user storage habits Costs for recovery of various data & data stores Well documented training program

34. A Walk Through of the eDiscovery Process

35. � Bricker & Eckler LLP Identification of Relevant Data in Litigation Perform initial evaluation of the case: What are the substantive issues involved? Who within the organization is likely to be a custodian of relevant information? Really understand the information management system & user habits Where and how is date stored? Backed up? Are there differences between actual practice and written procedures? User habits of key players -- how do custodians deal with ESI on a daily basis?

36. � Bricker & Eckler LLP Identification of Relevant Data in Litigation Design and apply the search strategy: Reliance upon custodians to eye-ball relevant ESI pursuant to your instructions Keyword, Boolean logic, and Proximity (iteratively) Clustering�similarity with ESI already identified Taxonomy & Ontology�relationship searching Bayesian classifiers�statistical probability that ESI is relevant Fuzzy logic�degree to which ESI may be relevant Document your strategy with a view that you may well need to defend it later

37. � Bricker & Eckler LLP Scope of Discovery Like the Federal Rule, Ohio now expressly allows discovery of ESI General limits: relevant and not privileged Additional limits for ESI: �not reasonably accessible because of undue burden or cost�

38. A Walk Through of the eDiscovery Process

39. � Bricker & Eckler LLP Preservation of ESI Reasonable efforts to preserve must begin as soon as litigation is reasonably anticipated � Civ. R. 37(F)(1) & (3) Safe Harbor timing Collection (extraction of data) may come later when you are faced with a discovery request provided it was adequately preserved Litigation hold Written instructions to possible custodians and �key players� not to delete relevant information Issue early on and supplement as your understanding of the case & key players evolves (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division. (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division.

40. � Bricker & Eckler LLP Preservation of ESI IT staff/consultants & specialized software may be needed for: Imaging or ghosting entire hard drives Suspending back up tape recycling (not a substitute for imaging) Suspending automated document destruction (perhaps selectively) Tools: Ghosting Tools: E.g., �Norton Ghost� Imaging Tools: E.g., �DD� (Dept of Defense) (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division. (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division.

41. � Bricker & Eckler LLP Defensible Collection of ESI Planning the collection strategy Consider terms of discovery agreements or orders Consider instructions of the requesting party and your arguments for deviation Unreasonably broad, burdensome Not relevant or reasonably likely to lead to admissible evidence (low threshold) If Metadata will be produced, take care to avoid disturbing

42. � Bricker & Eckler LLP Defensible Collection of ESI Chain of custody Document collection activities on standardized forms Limit & document access after collection Involve personnel whom you don�t mind being deposed Consider Hashing ESI at point of collection to create digital �fingerprints� Use appropriate collection tools E.g., RoboCopy to collect ESI from Windows PCs E.g., Hashing with HashTab or PinpointHash E.g., Forensic Toolkits such as EnCase ($$$) or PenguinSleuth, Helix, Fire

43. � Bricker & Eckler LLP A Word on Discovery Agreements / Orders Nearly always helpful to clarify the obligations and expectations of the parties and the court Remember that burdensome discovery may be ordered upon a showing of good cause Therefore you had better preserve it until or unless you get an agreement/order stating that you don�t have to Come to the negotiation table knowing what your costs are to respond Remember that the Safe Harbor factors include compliance with orders / agreements Safe Harbor Provisions (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division.Safe Harbor Provisions (1) Whether and when any obligation to preserve the information was triggered; (2) Whether the information was lost as a result of the routine alteration or deletion of information that attends the ordinary use of the system in issue; (3) Whether the party intervened in a timely fashion to prevent the loss of information; (4) Any steps taken to comply with any court order or party agreement requiring preservation of specific information; (5) Any other facts relevant to its determination under this division.

44. � Bricker & Eckler LLP A Word on Discovery Agreements / Orders Fed Cases � Discovery meeting, plan required Ohio�s Rule 16 makes this discretionary: Part 12 catch all provision makes preservation issues potential topic New Part 8 �[t]he timing, methods of search and production, and the limitations, if any, to be applied to the discovery of documents and electronically stored information� New Part 9 �Claw Back� Agreements [26(B)(6)(b) default] The Last Word: Honor your agreements and don�t screw around with skirting Court Orders Bank One Trust Co. v. Ronald E. Scherer (Ohio 10th App Dist) upheld: Ron Scherer ordered to pay $74K in costs & penalties for failure to comply with discovery requests Attorney James Wiles slapped with a criminal contempt charge, 10 days in jail (subject to reduction) for continuous interference with the discovery process and rude behavior before the judgeBank One Trust Co. v. Ronald E. Scherer (Ohio 10th App Dist) upheld: Ron Scherer ordered to pay $74K in costs & penalties for failure to comply with discovery requests Attorney James Wiles slapped with a criminal contempt charge, 10 days in jail (subject to reduction) for continuous interference with the discovery process and rude behavior before the judge

45. A Walk Through of the eDiscovery Process

46. � Bricker & Eckler LLP Processing ESI Many vendors & software products available De-duplication Hash (MD5 or SHA-1) each file or (better) parts of each file Create an index of all unique hash values Compare each file�s hash value to the index Eliminate redundant data �chunks� & replace with pointer to the saved single instance Compression can be 10:1 or even 50:1 Filtering, e.g. Date range, keyword, custodian, or other agreed parameters Prepare for review�triage, organize, format

47. � Bricker & Eckler LLP Review & Analysis of ESI Review & analysis must be iterative process Review plan For big jobs consider using support staff, temps, etc for initial review, summary, tagging, coding, indexing Provide very clear direction and careful oversight to support staff Attorney should make the call for production decisions after the prep work has been completed

48. � Bricker & Eckler LLP Review & Analysis of ESI Technology to speed the process: Hosted environments such as Applied Discovery�, Kroll Ontrack�, FIOS�, Pitney-Bowes These vendor offer end-to-end support for identification, collection, processing, review, and production Older, less jazzy litigation support tools such as Summation� and Concordance� Huge install base Far cheaper for small cases Limited functionality Custom solutions by your in-house IT staff or IT consultants

49. A Walk Through of the eDiscovery Process

50. � Bricker & Eckler LLP Production Fed & Ohio Rule 34(B): Request may specify the form or forms in which ESI is to be produced May request different info be produced in different formats but can�t request same info be produced in multiple formats If no form specified, responding party must provide in a reasonably usable form Staff Notes to Federal Rule: If the ESI is ordinarily kept in a searchable form then �reasonably useable� requires that it be produced in a searchable form

51. � Bricker & Eckler LLP Production Best practice: attempt to agree in advance on the production formats If a dispute arises the court may order that ESI be re-produced in certain formats E.g., court ordered the Gov�t to re-produce ESI in such a manner that each document could be traced to the source custodian

52. � Bricker & Eckler LLP Continuing Obligation to Produce Duty to produce responsive ESI is a continuing one. Qualcomm, Inc. v. Broadcom Corp. (S. D. Cal. January 7, 2008) 21 emails found. Over 200,000 more pages of emails eventually located � after trial. Counsel failed to follow-up on indications that additional responsive ESI existed. Sanctions of over $8 million!

53. A Walk Through of the eDiscovery Process

54. � Bricker & Eckler LLP Presenting ESI at Depos, Hearings, Trial, Etc The majority practice today is to image the ESI, create a TIFF or PDF, and stamp a bates number on the image Chain of custody and proper foundation important to admissibility Present either a printed copy or use a program such as Trial Director� to bring up the image on the screen

55. � Bricker & Eckler LLP Questions? Greg Krabacher, Esq. gkrabacher@bricker.com 614.227.2369  Columbus � Cleveland � Cincinnati-Dayton www.bricker.com