Cameron ESI Discovery Presentation

7/30/2019 Cameron ESI Discovery Presentation

http://slidepdf.com/reader/full/cameron-esi-discovery-presentation 1/47

How Techno logy Con t inues to Change (Drive) Discovery

Presentation to the Litigation and Intellectual Property Sections

of the Idaho State Bar

Sun Valley, Idaho

Kelly A. Cameron

October 29, 2010



2

"There's nothing out there?"



3

The Rules – Federal and State

Federal Rules of Civil Procedure

26(f)(3)(C) – Discovery Plan/ESI

34(a)(1)(A) – Generally

34(b)(1)(C) – Request/Form

34(b)(2)(D) & (E) – Response/Form

Idaho Rules of Civil Procedure

34(a) – ESI = "Document" but

34(b) – "specifically request"



4

Survey of 5,000 Lawyers finds:

98% report that 'digital evidence' had been "vital to the success

of legal matters" with past 24 months

60% "struggled" with volume of data

51% admit to "problems identifying and recovering" ESI

29% complain of lacking time to "conduct thoroughinvestigations"

24% admit lacking "sufficiently sophisticated e-discoverytechnology to fulfill requests effectively"

Source: Secure Business Intelligence Magazine, "Difficulties Producing 'Digital Evidence' Cause Lawyers to Lose Cases" (9/7/10)http://www.scmagazineuk.com/difficulties-producing-digital-evidence-cause-lawyers-to-lose-cases/article/178333/

http://www.scmagazineuk.com/difficulties-producing-digital-evidence-cause-lawyers-to-lose-cases/article/178333/




















5

The Big Picture:

Five Considerations for Today



6

(1) Identification Know Your Custodians and Sources o f ESI

Identify Document Custodians Review Complaint, demand letters, etc. Talk to key stakeholders Review organizational charts

Schedule Interviews of Document Custodians In-person is always best (if possible) Don't forget to interview IT department

Common Sources of Documents and ESI: Corporate and personal email systems Desktop or laptop computers External or networked ("shared") drives Instant Messaging Systems (including text messaging)

Internet and Social Networking sites Cloud Computing sites Backup Systems, media, and applications Traditional hard copy/paper files



7

(2) Preservation Send Hold Not ices and Track Compl iance

Issue Written Document Hold Notices

Describe litigation and claims Make clear relevant documents and ESI must be retained Ask custodians to acknowledge receipt, understanding, and commitment to full

compliance Custodians to notify HR or legal if they are departing the company, transferring,

or changing jobs Consider Suspending Routine Data Management Policies and Processes

Automatic email deletion Backup recycling procedures – this may be the sole source of relevant

information from key players whose data not otherwise readily accessible Document retention policies and archiving

Manage Document Hold Notices

Send periodic reminders Actively monitor compliance Coordinate with HR regarding departures, transfers, or job changes Consider engaging third party/e-Discovery vendors, tools, and/or software



8

(3) Collection Collect ESI Prompt ly and Correct ly

Once Relevant Custodians are Identified, Noticed & Interviewed . . .

Collect documents and ESI quickly Usually includes personal interviews with custodians Involve yourself in the process – treat this as a non-delegable duty Document and monitor all preservation efforts, decisions, chain of custody, etc.

Collection Options

Guided Collection

Active Data Collection Forensic Collection

An aside re: "End User-Based eDiscovery" – Avoid it if you can

Be Wary of Metadata

"Data about Data" Includes everything from header information in email to revision history for

documents Collection method can alter certain metadata (e.g., last opened date or last

modified date) Encourage use of third party for collection (ultimately cost-effective and safer)



9

(4) Processing and Review Early Case Assessment is Key

Processing Considerations

What file types will be excluded? What search terms will be used? Cooperative, iterative, discovering party, or responding party? Be careful. Expert (subject matter or technical) help required?

What other exclusions will apply (ACP, date, and custodian restrictions, etc.)? Vertical or horizontal de-duplication, or both? Highlighting for substance, privilege, work product, privacy, "Hot Docs," etc. Exception reports (corrupted, password protected, encrypted, foreign language,

etc.) – automated or manual?

Review Considerations

Linear Review Platforms (Concordance/FYI) Strategic Review Platforms (Attenex, Clearwell, Relativity) Large Firms with "Review Centers" (80 plus attorneys, "firm within the firm")



10

(5) Production Seek Agreement When Possib le

Rule 26(f) requires parties to discuss (among other things) the "disclosure or discovery of [ESI], including the form or forms in which it should be produced."

Volumes of data are so large, and the cost of review and production are so great,that parties must discuss production issues in advance.

Common Topics for Rule 26(f) Conference

Identity of custodians Privilege issues (including Clawback Agreements)

Potential and anticipated volume of data Search strategies to reduce data for review (agreement on search terms, etc.) Realistic timeline for production Production format

Native Static TIFF or PDF Images Combination thereof for different types of documents

Common "Reasonably Usable" Production Format Static TIFF or PDF Images Load File containing negotiated metadata in agreed-to format/software Extracted or OCR text (for keyword searching capability)



11

Single most informative (authoritative?) resource for ESI issues, best practices,overviews, and current state-of-the art and law

Developed "Working Group Series" ("WGSSM

") in 2002 Transitory and focused think-tanks to develop principles, guidelines & best practices in

targeted areas "ripe" for development

Regular Season Conferences serve to both launch Working Groups andcomment on output

WG1 – Electronic Document Retention & Production Organized in mid-2002 Goal is to advance the reasoned and just development of the law Built on breadth and depth of experience of invitees (participants) & observers

Designed around the dialogue model of achieving consensus Evolving, not static; address "tipping points" Life span based on need, goals & objectives as determined by the Working Group

http://www.thesedonaconference.org/



12

Glossary

55 pages

Updated September 2010 www.thesedonaconference.org





13

Principles of

Cooperation

[A] national drive to promote openand forthright information sharing,dialogue (internal and external),training and the development of practical tools to facilitatecooperative, collaborative,transparent discovery. This

Proclamation challenges the bar to achieve one's goals and refocuslitigation toward the substantiveresolution of legal disputes.

The Sedona Conference Cooperation Proclamationat 1 (2008).

www.thesedonaconference.org





14

Principles of

Cooperation – cont'd

Cooperation vs. Zealous

Advocacy – a False Choice

Over-contentious discovery isa cost that has outstripped anyadvantage in the face of ESIand the data deluge. It is not

in anyone's interest to wasteresources on unnecessarydisputes, and the legal systemis strained by 'gamesmanship'or 'hiding the ball,' to nopractical effect.

The Sedona Conference CooperationProclamation at 1 (2008).






15

Principles of

Proportionality

1. The burdens and costs of preservation of potentially relevantinformation should be weighedagainst the potential value anduniqueness of the informationwhen determining the appropriatescope of preservation.

The Sedona Conference WG1, Commentary onProportionality in Electronic Discovery, 11 TheSedona Conference J. 289, 291 (Fall 2010).






16

Principles of

Proportionality – cont'd

2. Discovery should generally beobtained from the mostconvenient, least burdensome,and least expensive sources.

The Sedona Conference WG1, Commentary on

Proportionality in Electronic Discovery, 11 TheSedona Conference J. 289, 291 (Fall 2010).






17

Principles of


3. Undue burden, expense, or delayresulting from a party's action or inaction should be weighedagainst that party.

The Sedona Conference WG1, Commentary onProportionality in Electronic Discovery, 11 TheSedona Conference J. 289, 291 (Fall 2010).






18

Principles of


4. Extrinsic information and samplingmay assist in the analysis of whether requested discovery issufficiently important to warrantthe potential burden or expense of

its production.








19

Principles of


5. Nonmonetary factors should beconsidered when evaluating theburdens and benefits of discovery.








20

Principles of


6. Technologies to reduce cost andburden should be considered inthe proportionality analysis.








21

Legal Hold Commentary

and Guidelines

Guideline 1

A reasonable anticipation of litigation arises when anorganization is on notice of acredible probability that it willbecome involved in litigation,seriously contemplates initiating

litigation, or when it takes specificactions to commence litigation.

The Sedona Conference WG1, Commentary onLegal Holds: The Trigger & The Process, 11 TheSedona Conference J. 265, 2269 (Fall 2010).






22


and Guidelines – cont'd

Guideline 5

Evaluating an organization'spreservation decisions should bebased on the good faith andreasonableness of the decisionsundertaken (including whether alegal hold is necessary and how itshould be executed) at the time

they were made.







23


and Guidelines – cont'd

Guideline 6

The duty to preserve involvesreasonable and good faith efforts,taken as soon as is practicableand applied proportionately, toidentify and, as necessary, notifypersons likely to have relevantinformation to preserve the

information.







24

Legal Issues in Recent Federal Case Law

Privilege and Inadvertent Disclosure

Legal Holds

Failure to Implement and/or Monitor Spoliation

Data Destruction

Culpability – Negligent, Gross Negligent



25

Privilege and Clawback



26

Privilege and Inadvertent Disclosure

Mt. Hawley Ins. Co. v. Felman Productio n, Inc .,

2010 WL 1990555 (S.D. W. Va. May 18, 2010)

Facts: You are in Federal Court and have producedover 1 million pages of data. 377 privileged emailsslipped through and were produced to the opposing

party. Fortunately, you have a clawback agreement. You used keywords to find responsive documents,

tested the search terms (for spelling variants) but you didnot sample for relevancy, or over- or under-inclusivenessand did not have "eyes on" responsive non-privileged

documents. Holding: Privilege waived.



27

Inadvertent Disclosure –

Federal Rule of Evidence 502(b)

Disclosure is not a waiver if:

(1) disclosure is inadvertent;

(2) the holder of the privilege took reasonable

steps to prevent disclosure; and

(3) the holder promptly took reasonable stepsto rectify the error, including (if applicable)

following Fed. R. Civ. P. 26(b)(5)(B).



28

Inadvertent Disclosure:

What are reasonable steps to prevent disclosure?

Fed. R. Evid. 502(b)(2)

Sampling to test the reliability of keyword searches of documents determined NOT to contain privilegedinformation.

"Eyes-on" review of potentially privileged documents. Consistency between privilege log and production. When on notice that some privileged documents were

produced, establish QC protocol to find others. What appears to have bothered the Court the most in

Mt. Hawley was the document/data "dump" withoutreview or sampling resulting in an overproduction of more than 30% and fact that counsel was well aware of rules, factors, and consequences.



29

Inadvertent Disclosure under Idaho Rule

of Civil Procedure 26(b)(5)(B)

No intent to waive Notification of inadvertent disclosure with a

"reasonable time" Prepare or add it to the Privilege Log required

under Rule 26(b)(5)(a) Recipient must promptly "return, sequester, or

destroy" the specified information and anycopies

Producing party must preserve pending ruling bythe court



30

Legal Holds and Spoliation

"Spoliation is 'the destruction or significantalteration of evidence, or the failure topreserve property for another's use as

evidence in pending or reasonablyforeseeable litigation.'"

Zubulake v. UBS Warburg ("Zubulake IV")

220 F.R.D. 212, 216 (S.D.N.Y. 2003)



31

First Step . . . Initiate Hold Notices

Remember Sedona Guideline 1:

Reasonable anticipation of litigation ariseswhen an organization is on notice of acredible threat it will become involved inlitigation or anticipates taking action toinitiate litigation.



32

Initiating Hold Notices (cont'd)

Reasonably anticipated, threatened or pending litigationor investigation

Applies to the initiator and target of litigation Arises from:

Common law duty to avoid spoliation evidence Inherent power of the courts Rules governing sanctions (e.g., Rule 37)

Necessary to avoid "collateral litigation" Duty may be ambiguous but can count on it being

second-guessed/scrutinized Based on good faith and reasonable evaluation of facts

as known at time



33

Pens ion Comm ittee (Zubu lake Revisi ted): HighlightsPension Comm it tee of Univ. of Montreal Pension Plan v. Banc of Am erica Securi t ies, Inc.,

2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)

Analytical framework for determining whether sanctions for spoliation are warranted: Level of culpability – negligent, grossly negligent or

willful;

Interplay between the duty to preserve and spoliation; Burden of proof – who has the burden of proving that

evidence has been lost or destroyed and theconsequences resulting from that loss; and

Appropriate remedy for the harm caused by thespoliation.



34

Pension Comm ittee:

Missteps that Led to Opinion

Some of the plaintiffs anticipated filing suit in2003; hold notices not issued, nor ESI collected,until 2007

Before 2007, total reliance on plaintiffs'

employees to select responsive records, withoutoversight by counsel (beware of "End-User Based e-Discovery")

Initial declarations served by plaintiffs explaining

conduct were materially incorrect – having toserve amended declarations didn't help their case – credibility key?



35

Lessons from Pens ion Comm ittee

"Courts cannot …expect that any party can meetthe standard of perfection." But…

"A failure to preserve evidence resulting in theloss or destruction of relevant information issurely negligent and …may be grossly negligentor willful." So remember…

What is negligent or worse will be considered in

hindsight with your opponent complaining thatwe can never know for sure which criticaldocuments and evidence were lost.



36

Specific Guidance re: Culpability from

Pens ion Comm it tee

Negligence: Failure to execute a comprehensive search for documents or to monitor

document collection (at least negligent); Failure to assess accuracy and validity of search terms; Failure to obtain records from all employees, including those tangentially related

(likely negligent).

Gross Negligence (when duty to preserve attaches): Failure to issue a written legal hold (legal hold triggers); Failure to identify key players and ensure that their electronic and paper records

are preserved; Failure to cease the deletion of email; Failure to preserve records of former employees in a party's possession, custody

or control; Failure to preserve backup tapes when they are the sole source of relevant

information or when they relate to key players, if the relevant informationmaintained by those players is not obtainable from readily accessible sources.



37

Pens ion Comm ittee :

Sanctions Available

Further discovery

Cost shifting

Adverse inference instructions

Preclusion of issues/evidence

Terminating Sanctions (e.g, default or dismissal)

Note: The appropriate sanction is inherentlysubjective and discretionary.



38

Pens ion Comm ittee:

Practice Tips

Preserve data by issuing written holdnotices

Interview document custodians

Consider suspending data management

Collect ESI promptly and correctly

Know the Rules of the Road and seekexpert guidance



39

ALAS Newsletter on Pens ion Comm it tee

Strongly recommends that ALAS firms confirm inwriting their communications with clientsregarding the responsibilities that client and

counsel have agreed to undertake. Pension Committee suggests that counsel may

have to involve themselves in the client's internalpreservation efforts or risk being held

responsible for conduct over which they had nocontrol.



40

ALAS Newsletter (cont'd)

Litigators should reach a clear understanding with the client aboutwho will be responsible for the following steps:

Prompt issuance of a written litigation hold notice once litigation is"reasonably anticipated;"

Review of complaint or anticipated claims to identify potentially relevant

subjects and key personnel with possible knowledge of documents andsources;

Discussion with key employees and others to identify possible sourcesand locations of relevant records, and to emphasize the employees'duty to comply with any litigation hold;

Discussion with client's IT personnel to confirm possible sources of relevant ESI; and

Monitoring compliance with document preservation instructions andissuing periodic litigation hold reminders.



41

Victo r Stanley II Victo r Stanley, Inc. v. Creative Pipe, Inc .,

2010 WL 3703696 (D. Md. Sep. 9, 2010) (Grimm, Mag.)



42

Victo r Stan ley II: Bad Facts

Defendants deleted or instructed others to deletethousands of files.

Defendants failed to implement a legal hold.

Defendants knowingly "wiped" and overwrote hard drives

and other files during the discovery period and inviolation of specific court orders.

Judge Grimm: Collectively Defendants' conductconstitutes the single most egregious example of spoliation that he has encountered in 14 years on thebench and in all of the spoliation cases he reviewed.

Don’t Miss: Judge Grimm's table of decisions.



43

Victo r Stan ley II: Sanctions

Defendant "consented" to default judgment on the mainclaim of copyright infringement.

Defendant must pay all of Plaintiff's attorneys' feesincurred relating to all of the discovery abuses.

Court ordered that individual Defendant's conduct betreated as contempt of the court "and that as a sanction,he be imprisoned for a period not to exceed two years,unless and until he pays to Plaintiff the attorneys' feesand costs awarded" after the itemized accounting.

Epilogue: Fees submitted are over $1 million – 66% of total fees incurred by Plaintiff in the litigation.



44

Victo r Stan ley II: Lessons Learned

Legal hold, Legal hold, Legal hold.

Monitor and be knowledgeable about whatyour client is doing.

Hire qualified and competent forensicconsultants.

Do not let discovery issues fester andgrow.



45

Conclusions

Cooperation may be your best, most cost-effective discovery tool and tactic.

Prophylactic and proactive management

by counsel of the entire e-discoveryprocess is paramount to avoid "discoveryabout discovery" and possible sanctions.

The first (and perhaps most important) tool – the Litigation Hold Notice.



46

Final Advice If your case involves (or may involve) ESI, become familiar with The

Sedona Conference commentaries and the leading cases (Zubulake

cases, Pension Committee, Rimkus, Victor Stanley decisions, etc.)and buckle up.



Questions and Discussion

Cameron ESI Discovery Presentation

Documents

Transcript of Cameron ESI Discovery Presentation