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eDiscovery & eRetention: eDiscovery & eRetention: Facing the ChallengeFacing the Challenge

Presented by:Presented by:

Thomas GreeneThomas GreeneSpecial Assistant Attorney GeneralSpecial Assistant Attorney General

September 22, 2008September 22, 2008

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OverviewOverview

Why Are Lawyers Knocking on My Door?Why Are Lawyers Knocking on My Door? Federal DevelopmentsFederal Developments

Amended rules for “Electronically Stored Amended rules for “Electronically Stored Information” (ESI) effective 12/1/06Information” (ESI) effective 12/1/06

State Law DevelopmentsState Law DevelopmentsProposed amendments to CA Code of Civil Proposed amendments to CA Code of Civil

Procedure and Rules of Court (AB 926 Procedure and Rules of Court (AB 926 (Evans).)(Evans).)

Spoliation and Litigation HoldsSpoliation and Litigation Holds

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How is Information How is Information Created?Created?

Over 92% of information is created Over 92% of information is created electronically. electronically.

0

20

40

60

80

100

Digital

Non-Digital

School of InformationManagement and SystemsU.C. Berkeley

November 2003

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How is Information Stored?How is Information Stored?

70% of e-documents 70% of e-documents are are nevernever printed. printed.

Considering only Considering only paper documents is paper documents is the equivalent of the equivalent of ignoring 7 of 10 file ignoring 7 of 10 file drawers of drawers of potentially relevant potentially relevant information.information.

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E-Documents Are Often E-Documents Are Often Powerful Evidence at Trial Powerful Evidence at Trial

Far Far moremore candid, far candid, far lessless guarded. guarded.

““The Litigation Gift That Keeps On The Litigation Gift That Keeps On Giving”Giving”

Microsoft, Edw. JonesMicrosoft, Edw. Jones

Metadata can be probative, e.g., date Metadata can be probative, e.g., date of preparation, source of prior of preparation, source of prior versions of documents or receipt by versions of documents or receipt by specific individual.specific individual.

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Electronically Stored Electronically Stored Information (ESI) Information (ESI)

FRCP 34(a):”…FRCP 34(a):”…electronically stored electronically stored informationinformation—including writings, —including writings, drawings, graphs, charts, photographs, drawings, graphs, charts, photographs, sound recordings, images, and other sound recordings, images, and other data or data compilations data or data compilations stored in any stored in any mediummedium from which information can be from which information can be obtained—translated, if necessary, …obtained—translated, if necessary, …into reasonably useful form…”into reasonably useful form…”

Proposed CA CCP § 2016.020: Proposed CA CCP § 2016.020: “information that is stored in an “information that is stored in an electronic medium.”electronic medium.”

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Four Concepts in the Federal Four Concepts in the Federal ESI Rules and Proposed State ESI Rules and Proposed State

RulesRules Early Consideration of ESI issuesEarly Consideration of ESI issues

Two-Tier Approach to Back-up MediaTwo-Tier Approach to Back-up Media

Practical AdjustmentsPractical Adjustments

Shallow Safe Harbor for E-Document Shallow Safe Harbor for E-Document DestructionDestruction

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Helpful ResourceHelpful Resource

26-Page26-Page “ “Pocket Guide” to ESI from Pocket Guide” to ESI from the Federal Judicial Center, the Federal Judicial Center, at at http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/elhttp://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdfdscpkt.pdf

Designed for attorneys and judges Designed for attorneys and judges but written in plain English.but written in plain English.

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Critical Decisions Come Early Critical Decisions Come Early In the Federal SystemIn the Federal System

Rule 26(f) Conference Among Counsel Rule 26(f) Conference Among Counsel ASAP but not later than 16 days before Rule 16 ASAP but not later than 16 days before Rule 16

conference or issuance of scheduling order.conference or issuance of scheduling order. Rule 26(a) disclosures of ESIRule 26(a) disclosures of ESI

At or w/in 14 days of 26(f) conference unless a At or w/in 14 days of 26(f) conference unless a different schedule per stipulation or order.different schedule per stipulation or order.

Rule 16 Conference OrderRule 16 Conference Order ASAP but at least w/in 90 days of appearance of ASAP but at least w/in 90 days of appearance of

defendant or 120 days from service of defendant or 120 days from service of complaint.complaint.

CA Local Practices Also Suggest Early CA Local Practices Also Suggest Early Review (“1-Geek Rule”)Review (“1-Geek Rule”)

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New Local RulesNew Local Rules

Federal N.D. Cal. Civil Local Rule 16-9 Federal N.D. Cal. Civil Local Rule 16-9 requires a description of:requires a description of: ““Steps taken to preserve evidence Steps taken to preserve evidence

relevant to the issues reasonably relevant to the issues reasonably evident in the action, including evident in the action, including interdiction of any document-destruction interdiction of any document-destruction program and any ongoing erasures of e-program and any ongoing erasures of e-mails, voice-mailsmails, voice-mails, and any other , and any other electronically-stored material.” electronically-stored material.” ((Standing Order for All Judges of the Northern District of California re: Contents of Joint Case Management Statement (March 1, 2007) at CAND/Judges.nsf/700c1c62613a833e88256d48005fd21b)

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Better Guidance on What to Better Guidance on What to Cover at Early ConferencesCover at Early Conferences

Maryland D.Ct. issues useful protocol Maryland D.Ct. issues useful protocol ((Suggested Protocol for Discovery of Electronically Stored Information (D.Md.2007), at http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf)

““Gold” standard but delimits Gold” standard but delimits obligationsobligations

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Implications for CIOsImplications for CIOs

Early conferences with lawyers on what Early conferences with lawyers on what you have and how it is stored.you have and how it is stored.

Probable participation in early conferences Probable participation in early conferences with opposing counsel.with opposing counsel.

Possible testimony to describe and explain Possible testimony to describe and explain systems at case management conference systems at case management conference and at Person Most Knowledgeable (PMK) and at Person Most Knowledgeable (PMK) deposition.deposition.

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Two-Tier Approach; Rule 26(b)Two-Tier Approach; Rule 26(b)(2)(C) (2)(C)

““A party need not provide discovery of [ESI] A party need not provide discovery of [ESI] from sources that the party identifies as not from sources that the party identifies as not reasonably accessible”reasonably accessible”

ButBut Advisory Committee states that Advisory Committee states that retention obligation continues even if don’t retention obligation continues even if don’t have to produce.have to produce.

Demanding party can motion for production Demanding party can motion for production if value outweighs burden; . if value outweighs burden; . Burden of persuasion on Burden of persuasion on producingproducing party to show party to show

why too costly/irrelevant to produce.why too costly/irrelevant to produce.

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California ProposalCalifornia Proposal

Challenger bears “burden of Challenger bears “burden of demonstrating that information is from demonstrating that information is from a source that is not reasonably a source that is not reasonably accessible because of undue burden or accessible because of undue burden or expense.” (CCP expense.” (CCP § 2031.310(g).)§ 2031.310(g).)

ButBut responder need not pay to responder need not pay to “translate any data compilations”, i.e. “translate any data compilations”, i.e. recovery from back-up tapes. (CCP § recovery from back-up tapes. (CCP § 1985.8(g); see also 1985.8(g); see also Toshiba v. Superior Toshiba v. Superior Court (Lexar)Court (Lexar) (2004) 124 Cal.App.4(2004) 124 Cal.App.4thth 762.)762.)

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Forms of ProductionForms of Production

FRCP 34(b) authorizes FRCP 34(b) authorizes demanding demanding partyparty to “specify the to “specify the form or formsform or forms in in which [ESI] is to be produced”.which [ESI] is to be produced”. Subject to challenge by responding party.Subject to challenge by responding party. Can specify different forms for Can specify different forms for

spreadsheets and documents.spreadsheets and documents. CA proposal similar (CCP CA proposal similar (CCP § §

2031.030(a)(2).)2031.030(a)(2).)

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Bringing E-Bringing E-Documents into Evidence:Documents into Evidence: Lorraine v. Lorraine v.

MarkelMarkel (D. Md. 2007) 241 F.R.D. 534

AuthenticationAuthentication Testimony of System AdministratorTestimony of System Administrator Hash marksHash marks MetadataMetadata Inscriptions, marks, tagsInscriptions, marks, tags

Hearsay ExceptionsHearsay Exceptions Excited utterance; business recordExcited utterance; business record

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Implications for CIOsImplications for CIOs

More likely to have to preserve and More likely to have to preserve and produce information with original produce information with original metadata.metadata.

May have to testify to “authenticate” May have to testify to “authenticate” electronic records.electronic records.

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““Shallow Safe Harbor”Shallow Safe Harbor”

FRCP 37(f) provides that “absent FRCP 37(f) provides that “absent exceptional circumstances, a court exceptional circumstances, a court may not impose sanctions…[for ESI]… may not impose sanctions…[for ESI]… lost as a result of the lost as a result of the routine, good-routine, good-faith operationfaith operation of an electronic of an electronic information system.”information system.”

Proposed CA CCP § 2031.060(i): No Proposed CA CCP § 2031.060(i): No sanction if loss due to “sanction if loss due to “routine, good routine, good faith operation of electronic systemfaith operation of electronic system” ” but no alteration “of any obligation to but no alteration “of any obligation to preserve discoverable information.”preserve discoverable information.”

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Spoliation SanctionsSpoliation Sanctions Adverse Inference InstructionAdverse Inference Instruction

Truly ugly in competent handsTruly ugly in competent hands MonetaryMonetary

Most commonMost common Evidence or IssueEvidence or Issue

A focused remedy that can put injured party A focused remedy that can put injured party in position would have been absent spoliationin position would have been absent spoliation

TerminatingTerminating Only in most egregious circumstances but a Only in most egregious circumstances but a

number of reported casesnumber of reported cases

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Litigation Hold is CrucialLitigation Hold is Crucial

E-Mail is typically E-Mail is typically destroyed on a 30, 60 destroyed on a 30, 60 or 90 day cycle.or 90 day cycle.

Voice Mail is typically Voice Mail is typically destroyed in 20-30 destroyed in 20-30 days.days.

If don’t act If don’t act fastfast, the , the evidence is evidence is gone.gone.

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Litigation Hold Policy: Basic Litigation Hold Policy: Basic ElementsElements

Who sets?Who sets? When set?When set? Focus on “key players”, specific time Focus on “key players”, specific time

periods and relevant topics.periods and relevant topics. Secure back-up media.Secure back-up media. Secure home PCs, “private” Secure home PCs, “private”

collections.collections. Monitor and follow up regularly.Monitor and follow up regularly. Document what you do.Document what you do.

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ResourcesResources

Electronic Discovery and EvidenceElectronic Discovery and Evidence by by Michael ArkfeldMichael Arkfeld

Sedona Conference Sedona Conference (sedonaconference.com)(sedonaconference.com)

Internet resourcesInternet resources Discoveryresources.org; Discoveryresources.org;

krollontrack.com; FIOS.com; krollontrack.com; FIOS.com; applieddiscovery.comapplieddiscovery.com

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ConclusionConclusion

Sanctions for failing to properly Sanctions for failing to properly secure and produce e-evidence secure and produce e-evidence Draconian.Draconian.

E-discovery is and will be a major CIO E-discovery is and will be a major CIO responsibility.responsibility.

Technology and law changing so Technology and law changing so quickly that CIOs and lawyers need to quickly that CIOs and lawyers need to work in partnership.work in partnership.