illinois state bar association december 2, 2011
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Illinois State Bar Association December 2, 2011
Presented by: George Bellaswww.bellas-wachowski.com
It’s no longer on paper It’s all in the computers Snail Mail is dying 103 billion emails a day 43 billion IM’s a day Some of this
information is useful. We need to get the
useful info and then figure out how to use it.
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What is e-Discovery? the collection,
preparation, review and production of ESI which is relevant to a legal proceeding.
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Storage Devices:
Desktop Computers/Hard Drives/Laptops Backup Tapes Portable Flash Drives, Floppy, Zip and Jaz Diskettes Optical Media - CDs, CD-Roms, DVDs Home Computers PDAs, Blackberry® smartphones and Cell Phones Digital Cameras and Flash Media Voicemail Fax Machines, Copiers and Printers iPod® and iPad® mobile digital devices, Kindle™
and Nook ™ eReaders, etc.4
e-Mission Impossible? Get the ESI needed for your case and
then figure out how to use it.
But with computers this is not always easy to do – results in a lot of litigation and is very costly. 5
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Benefits to Small Firms Corporate Defendants are fearful
of e-discovery and the amendments to the federal rules
e-discovery makes it easier for small firms to compete with big business
One Person and One Computer can conduct a document review
e-discovery equalizes the process IF DONE ECONOMICALLY
e-Admissibility – What’s admissible evidence?
Traditional Rules of evidence still apply• Authentication• Relevant
Probative Value vs. Unfair Prejudice• Hearsay• Best Evidence Rule . . but what’s the
original document?
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Admissibility of ESI Lorraine v. Markel American Insurance
Company, 241 F.R.D. 534 (D.MD. 2007)
• a landmark decision about the admissibility and authentication of digital evidence
• established a detailed baseline for the use of ESI
• Given the guidelines and references provided by the judge, it now becomes difficult for counsel to argue against the admissibility of electronic evidence.
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Illinois Rules for e-Discovery Rule 201(b)(1) defines documents to
include “all retrievable information in computer storage”
Rule 214 requires production of all retrievable information in computer storage in printed form.
OUTDATED ! ! ! ! 9
Illinois Courts’ Simplistic Approach Comments to Rule 214 – reason for
production of paper . . . . “. . . intended to prevent parties producing information from computer storage on storage disks . . . Which may frustrate the party requesting discovery from being able to access the information produced.”
Outdated and ignores the importance of the original data.
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“tif” is just a Picture This is what you are currently getting in
discovery! Defendant prints out and images a .tif file
• Many files take up more than 1 page (spreadsheets)• Result is data spread over more than one page
resulting in separate .tif images• All underlying formulae are stripped and it is not
searchable – A .tif is just a picture of a document! To salvage it, OCR is administered
• But OCR is inherently error prone • OCR spell checking does correct errors• Numeric data cannot be spell-checked
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Effects of a “tif” tactic . . . By the time you get an edited picture of a picture . . . .• Usability – Gone• Searchability – Crippled• Integrity – Destroyed• Content – MisrepresentedIf you want to get the useful METADATA and see the document in its original format , you must insist on getting the ORIGINAL ESI FILES . . . but be careful for what you ask for!
Courts are getting it ! ! !Rather than simply copying the electronic media to permit ... search and review ... on a computer screen, the plaintiffs spewed the digital production onto paper and then copied the paper for review. Thus, the court must disagree with the plaintiffs counsel’s assertion that this case was a paradigm of efficient litigation.In re Instinet Group, 2005 Del.Ch. LEXIS 195 (Del.Ch. 2005)
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E-Discovery = $ + $ The cost of pursuing e-
discovery issues is prohibitive for most small offices . . . .
e-discovery threatens to eat up the value of litigation
New Rules attempt to make the process more affordable 14
Federal Rules – a Ray of Light!
Amendments effective on 12/6/06 specifically address ESI
The drafters noted that “the discovery of ESI is becoming more time consuming, burdensome and costly.”
These rules have changed the pretrial dynamic in federal court . . . And in state courts!
Fear Not the Federal Rules We can use the new
federal rules for e-discovery as guide posts
Embrace the federal rules and case law . . . They have paved the road for rules changes now b
Use the Force, Luke!
Why should we consider the new federal rules ? ? ?
Because it can be used as precedence in the absence of any applicable local rules . . . and Illinois has no rules right now.
Because States are adopting the federal rules and the Principles promulgated by the 7th Circuit E-Discovery Committee
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“ESI” – FRCP 34Defines ESI
Adopted with the Amendments to the Federal Rules of Civil Procedure in 2006.
ESI is “Electronically Stored Information” and includes all discoverable information
ESI is subject to production under Rule 34(a) One new battlefield . . . under Rule 34(b) the form of
production of ESI can be specified by the requesting party in a
request, or thereafter by a responding party in a response But if not specified, it must be produced in
the form in which is ordinarily maintained.
Format for Production of ESI Rule 34(b) requires the party
requesting ESI to specify the format in which information should be produced.
If not specified, the Rule permits the responding party to produce ESI either in:• the format in which it is ordinarily
maintained, or• a format that is reasonably usable
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The big change is the Meet and Confer
requirement of Rule 16
Required Disclosures• Rule 16(b) scheduling orders should
include provisions for disclosure of ESI• Parties are required to discuss
preservation and disclosure of ESI at Rule 26 planning conferences in a “Meet and Confer” meeting.
• Parties are required to include ESI in their initial disclosures under Rule 26(a).
• ASK FOR RECORD MANAGEMENT PROCEDURES AND POLICIES!
7th Circuit’s E-Discovery Pilot Program
Chair: Chief Judge James Holderman Includes lawyers, in-house counsel
and consultants.Several Lawyers are here today.
Primary Goal is to change the pretrial dynamic to lessen the cost of e-discovery.
Principle 1.01 – Purpose To “incentivize early and informal information
exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)”
To help courts secure the “just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information without Court intervention.”
Cornerstones of the Principles
Cooperation
Proportionality
Principle 1.02 – Cooperation An attorney’s zealous representation
is not compromised by cooperating in discovery
Failure of counsel/party to cooperate in “facilitating and reasonably limiting discovery requests and responses” contributes to a “risk of sanctions”• Note: Read Fed. R. Civ. P. 26(g) and Mancia v. Mayflower
Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)
Zealousness Dying concept No longer exists
in the ABA model rules
No longer has a place in our courts.
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Content Accessibility –the New Battlefield
FRCP allow responding parties to evaluate the relative expense and difficulty of producing information from one system (source) versus another.
The burden and costs may make the data “not reasonably accessible”
The question of what is – and what is not – reasonably accessible has already proven to be fertile grounds for disputes
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Reasonably Accessible – 7 Factors from Zubulake
The extent to which the request is specifically tailored to discover relevant information;
The availability of such information from other sources;
The total cost of production, compared to the amount in controversy;
The total cost of production, compared to the resources available to each party;
The relative ability of each party to control costs and its incentive to do so;
The importance of the issues at stake in the litigation; and
The relative benefits to the parties of obtaining the information.
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What isReasonably Accessible?
Under Rule 26(b)(2) the Zubulake “reasonably accessible” information rule is codified.
ESI that is not reasonably accessible due to undue burden or cost need not be initially produced, however the party claiming “inaccessibility” has the burden of proving inaccessibility
Proportionality Emerging law has shifted the costs of
recovery of data to the requesting party.
The old rules provided that the court could issue an order to protect a party against “undue burden or expense.”
This was used as a shield by Defendants.
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Court Response: “Proportionality”
Federal courts responded by developing a new set of rules. • See Zubalake I – 217 FRD 309
Accessible v. Inaccessible data The cost of producing Accessible data is
borne by the producing party The cost of producing Inaccessible data is
weighed under the 7 factor test developed by the Judge in Zubulake I and then codified in the Amendments. 31
Principle 1.03 – Proportionality Fed. R. Civ. P. 26(b)(2)(C)
proportionality standard should be applied in formulating a discovery plan
ESI production requests and responses “should be reasonably targeted, clear, and as specific as possible”• Note: Proportionality standard applies to all discovery,
even “accessible” ESI
Proportionality – Factors to Consider: What is the relevance of proposed discovery.
• This is a fundamental gate-keeping question. Is the discovery sought from a party or a nonparty? Does the discovery sought relate to a key player? Does the discovery relate to a key time period? Does the discovery relate to the core issues in the case? Does the discovery relate to a unique source of information? What are the burdens and costs involved? Is the information from a source that is not reasonably
accessible? What is the amount in controversy? What is the relative importance of issues at stake in the case? What are the relative resources of the parties?
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Principle 2.06 – Production Format
Requires a good-faith effort to agree on the format of ESI production at the initial 26(f) conference
If unable to agree, should be raised promptly with the court
ESI stored in a database can be produced by querying the database for information resulting in a report or other reasonably useable and exportable electronic file
Principle 2.06 – Production Format (Costs)
The requesting party is generally responsible for the cost of creating its copy of the requested information
Discussion of cost-sharing encouraged• Particularly when discussing the addition
of optical character recognition (OCR) or other upgrades of paper documents, or if non-text-searchable electronic information is contemplated by parties
State Courts New York is considering the adoption
of the Federal Rules New Jersey courts are acting on their
own to adopt the Principles California is working on its own set of
rules (no big surprise here) Illinois . . . . is doing nothing . . . but
something may be afoot.36
E-Discovery is Expensive The cost of pursuing e-
discovery issues is prohibitive
There are changes afoot to make the process more affordable
We need to take a more realistic approach to what we are seeking in discovery.
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Dirt Cheap Software Tools One Click Collect –
• harvests ESI Adobe Acrobat 9
• manages email discovery issues dtSearch
• Manages review of large collections of docs & email produced in native file
Breeze e-Discovery Suite• Scanning software that processes ESI
and delivers it multiple formats.38
Our Client’s Duties We have to preserve our client’s e-
discovery information Recent case by the same Judge who
decided the Zubulake case punished the Plaintiff’s attorneys
“those who cannot remember the past are condemned to repeat it”
Pension Committee v. Banc of America, 1/15/10 Amended Opinion
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Practice Suggestions Use the Federal Rules as a guideline Focus on what you need, not what you
want. Cooperate with the other attorney.
Failure to cooperate will be punished. Find ways to minimize the cost of e-
discovery Protect your client from inadvertent
destruction. 40
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Send Preservation Letters
Preservation Letters should be sent early in your case . . . even before you file suit.
Send one to your client as well! Start discovery with a scope of Discovery
Letter asking for production in a usable format
Practice Pointers . . . Don’t ask for everything! Be specific!
• The days of fishing expeditions are over! Follow up with Rule 201(k) letters and
offers to meet and confer. File motions to compel production which
include sufficient information to educate the judge on the seven criteria from the Committee Notes to Federal Rule 26(b)(2)• See Zubulake v. UBS Warburg LLC, 217 F.R.D.
309, 322 (S.D. N.Y. 2003). 42
Practice Pointers . . . Submit a draft order itemizing ESI to be produced
with specificity and which provides a realistic time for production.
First insist on production of any document management policies of the opponent in every case.
Always insist on an affidavit of completeness of the production response.
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Metadata & Authenticity Authenticity is established by
producing the document in its native format.
But discovery of metadata can be expensive.
Work this out with your opponent.• Agree to forego production of metadata
unless authenticity is at issue.
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Hire a Consultant . . . . . E-discovery rules will
join lawyers and EDD vendors at the hip in an uneasy alliance
Hire a vendor who will provide a White Paper and sworn testimony and will take reasonable steps to get the information
Discovery Pilot Program
Seeking to advance the Principles in other jurisdictions
Web site:•www.discoverypilot.com
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Additional Resources:Seventh Circuit Pilot Program:www.discoverypilot.com
Sedona Conference and Glossary:www.thesedonaconference.org/
EDRM: www.edrm.net/
Merrill Knowledge Source:www.merrillcorp.com/merrill-knowledge-source.htm
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In Summary . . . . Embrace Technology Learn the e-discovery rules Prepare before you file suit Be creative in what you seek Prepare for discovery in
advance Demand that provisions for
disclosure of ESI be included in the defendants’ responses
Be alert to your client’s situation
For a copy of this Power Point please go to our web site:
http://www.bellas-wachowski.com/lawyer-attorney-1746778.html
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