e-docs and forensics in the new e-discovery era · e-docs and forensics in the “new”...

March 19, 2007

ELECTRONICALLY STORED INFORMATION

e-Docs and Forensics in the “New” e-Discovery Era

www.aplf.org

March 19, 2007

FRAMEWORK

Overview of the Rule Changes

Pre-Litigation Planning

IT Audit

Document Retention Policies

Planning Discovery

Conducting Discovery

Costs

Privilege

March 19, 2007

OVERVIEW

Changes go into effect December 1, 2006

Rules changes deal with a “new” category of information: electronically stored information (ESI)

ESI is distinct from documents or things

Focus is on “accessible” ESI

Attempt to balance need for information versus cost and time of discovery

Safe harbor provisions for inadvertent production of privilege

March 19, 2007

HAS ANYTHING REALLY CHANGED?

ESI has been the focus of much discovery in previous years

Numerous state and federal jurisdictions already have specific rules in place to address e-discovery or have begun to work on such rules

BUT, official recognition of both importance of ESI and difficulties in dealing with it

March 19, 2007

JURISDICTIONS IMPLEMENTING SPECIFIC RULES

March 19, 2007

RULE CHANGES

Rule 16/Form 35

Rule 26

Rule 33

Rule 34

Rule 37

March 19, 2007

RULE 16(b) – CASE MANAGEMENT

(b) ….The scheduling order also may include…

(5) provisions for disclosure or discovery of electronically stored information;

(6) any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production;

Form 35 also provides specific provisions for addressing ESI

March 19, 2007

RULE 26(a)(1)(B) – DISCOVERY IN GENERAL

(a) Required Disclosures; Methods to DiscoverAdditional Matter.

(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:….

(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

March 19, 2007

RULE 26(b)(2)(B) –LIMITATIONS

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:….

(2) Limitations.….

(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

March 19, 2007

RULE 26(b)(5)(B) - PRIVILEGE

(5) Claims of Privilege or Protection of Trial-Preparation Materials.….

(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

March 19, 2007

RULE 26(f) – CASE MANAGEMENT

(f) Conference of Parties; Planning for Discovery. …[T] he parties must…confer…to develop a proposed discovery plan that indicates the parties’ views and proposals concerning:

….(3) any issues relating to disclosure or discovery of

electronically stored information, including the form or forms in which it should be produced;

(4) any issues relating to claims of privilege or of protection as trial-preparation material, including— if the parties agree on a procedure to assert such claims after production — whether to ask the court to include their agreement in an order;….

March 19, 2007

RULE 33(d) - INTERROGATORIES

(d) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locateand to identify, as readily as can the party served, the recordsfrom which the answer may be ascertained.

March 19, 2007

RULE 34(a) – ESI PRODUCTION

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

March 19, 2007

RULE 34(b) – FORM OF ESI PRODUCTION

(b) Procedure. ….The request may specify the form or forms in which electronically stored information is to be produced….The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to therequested form or forms for producing electronically stored information, stating the reasons for the objection….If objection is made to the requested form or forms for producing electronicallystored information — or if no form was specified in the request —the responding party must state the form or forms it intends to use….Unless the parties otherwise agree, or the court otherwise orders:

(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in therequest;

(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and

(iii) a party need not produce the same electronically stored information in more than one form.

March 19, 2007

RULE 37(f) - SANCTIONS

(f) Electronically Stored Information. 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.

March 19, 2007

DO THE NEW RULES CLARIFY MY OBLIGATIONS?

“Reasonably accessible”

“Undue burden or cost”

“Good cause”

“Routine operation”

“Good faith”

March 19, 2007

WHAT IS ESI?

March 19, 2007

WHY DISTINGUISH ESI?

Exponentially greater volume

Do you know your terabytes?

March 19, 2007

SHOULD IT BE CALLED A TERROR-BYTE?

Varies by type of document, but if e-mail, then roughly 40,000 boxes

March 19, 2007

WHY DISTINGUISH ESI?

Exponentially greater volume

Do you know your terabytes?

Dynamic nature of ESI

Are you improperly altering metadata?

ESI may be incomprehensible when separated from the system that created it

Native format or hard copy?

- Advisory Committee Report at 18

March 19, 2007

ADDITIONAL CONSIDERATIONS WITH ESI

Need to collect from more numerous locations

Redundancy/Duplicability

Disposal

Obsolescence

Cost

Privilege

March 19, 2007

FRAMEWORK



IT Audit


Planning Discovery


Costs

Privilege

March 19, 2007

PRE-LITIGATION PLANNING

In-house counsel: Conduct an IT “Autopsy” NOW

Why now instead of when litigation is imminent?

Outside counsel: Learn your clients’ systems NOW

How do I justify this to the client?

Document retention/destruction policy NOW

Create or revise

March 19, 2007

WHY SHOULD I GO TO ALL THIS TROUBLE?

SANCTIONS

Severity of misconduct

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March 19, 2007

CONGRATULATIONS – YOU’RE NOW AN IT PROFESSIONAL

ArchivalDefragmenting

Temp cleanDo I have it?

Why?

Why?Who?What?When?How?

Where?

Automatic ProgramsLegacy DataBackups

March 19, 2007

CONGRATULATIONS – YOU’RE NOW AN IT PROFESSIONAL

Portable hard drives

USB keys

CD/DVD

Any policies governing use?

How many?

Procedures for storage on

personal hard drives?

Backups?

How many?

Procedures for storage on

personal hard drives?

Backups?

March 19, 2007

DOCUMENT RETENTION/DESTRUCTION POLICY

Destruction of documents does not equate to spoliation

Do I really have to have one?

YES!

Having one may be evidence of good faith, so long as it is entered for the right reasons and is reasonable

Can’t you just give me a form policy?

NO!

No such thing as one size fits all

Individual industries and regulations have a significant impact

March 19, 2007

DOCUMENT RETENTION/DESTRUCTION POLICY

Considerations

What should be covered?

How long?

Who is in charge?

Policing?

Suspend for litigation hold?

March 19, 2007

WHAT DO I DO ABOUT TAPE BACKUPS?

Remember, key is “routine good faith operation” of the system

Consider good faith alternatives

E.g., If you keep a copy of the backups existing at the time the litigation hold commences, can you then continue the recycling program afterwards and still assure that not relevant documents will be lost?

The only completely safe solution is to end recycling when litigation hold commences

March 19, 2007

“Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail

or electronic document, and every backup tape? The answer is clearly ‘no.’ Such a rule would

cripple large corporations…that are almost always involved in litigation.”

-Zubulake v.UBS Warburg LLC-220 F.R.D. 212, 217 (S.D.N.Y. 2003)

WHY IS THIS QUESTION SO DIFFICULT?

The case law, committee notes and commentaries are singularly unhelpful…

“The proposed rule also recognizes that suspending or interrupting [automatic deletion] features can be prohibitively expensive and

burdensome, again in ways that have no counterpart to managing hard copy information.”


“It can be difficult to interrupt the routine operation of computer systems to isolate and preserve discrete parts of the information they

overwrite, delete, or update on an ongoing basis, without creating problems for the larger system”


It is unrealistic to expect parties to stop such routine operation of their computer systems as soon as they anticipate litigation. It is also undesirable; the result would be even greater accumulation of duplicative and

irrelevant data that must be reviewed, making discovery more expensive and time consuming


There is CONSIDERABLE UNCERTAINTY as to whether a party – particularly a party that produces large amounts of information – NONETHELESS HAS TO INTERRUPT THE

OPERATION OF THE ELECTRONIC INFORMATION SYSTEMS it is using to avoid any loss of information because of the possibility that it might be sought in discovery, OR RISK

SEVERE SANCTIONS


March 19, 2007

FRAMEWORK



IT Audit


Planning Discovery


Costs

Privilege

March 19, 2007

Must balance need for information against need to minimize disruption of “routine operations critical to ongoing activities.”


Seek agreement regarding:Form of Production of Documents

Native format?Duty of preservation

Accessible and inaccessible informationSearch TermsPrivilege IssuesCost sharing

RULE 26(F) CONFERENCE

March 19, 2007

THE RULE 16 CONFERENCE

A complete and thorough Rule 26(f) conference is key

The easier you make it for the court, the more likely the court is to adopt your plan

Consider previewing the likely points of dispute

Definitely address limitations, especially with respect to inaccessible data

March 19, 2007

FRAMEWORK



IT Audit


Planning Discovery


Costs

Privilege

March 19, 2007

Preservation of Information

Requesting & Responding to Discovery

Form of Production

Cost Shifting

Privilege Issues

Sanctions/Safe Harbor

CONDUCTING DISCOVERY UNDER REVISED RULES

March 19, 2007

DUTY TO PRESERVE

Duty to preserve documents arises as soon as party knows or should know about litigation, or if litigation is reasonably anticipated in the future.

Duty varies district-by-district

March 19, 2007

HOW DO I COMPLY WITH MY DUTY TO PRESERVE?

Counsel should issue Litigation Hold to employees as soon as litigation begins--ASAP

Only those with litigation holds will likely be able to seek protection from sanctions under Rule 37(f)’s new safe harbor provisions…more later

Periodically reissue Litigation Hold to all employees so that new employees are also aware of it

March 19, 2007

ASSESS THE SCOPE OF THE DUTY

Make direct contact with “key players”

Interview

Importance of preservation

Consider imaging hard drives

Contact IT personnel

Importance of preservation

IT infrastructure

Accessibility of Information

Can it be found elsewhere?

May need to preserve inaccessible, potentially relevant information

Organize team of point persons in each department

March 19, 2007

COMMUNICATION IS KEY

Contact opposing counsel immediately

Scope of preservation

Form of production

Preservation letter?

Seek guidance from Court

March 19, 2007

INITIAL DISCLOSURES

Rule 26(a)(1)(B) substitutes “Electronically Stored Information” (“ESI”) for data compilations

Must disclose description by category and location of documents & ESI relevant to claim or defense

Should search available electronic systems for relevant information

Disclose existence of documents in paper & electronic form

Consider disclosing IT personnel or 30(b)(6) witness

March 19, 2007

DRAFTING/RESPONDING TO DISCOVERY REQUESTS

New Rule 26(b)(2)(B): Limitations.

“A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

Responding party bears burden of showing ESI is not reasonably accessible because of undue burden or cost

Information may still be ordered produced if Requesting Party shows good cause

- Committee Notes to Proposed Amendments at 14

March 19, 2007

DRAFTING/RESPONDING TO DISCOVERY REQUESTS

New Rule 26(b)(2)(B): Limitations.

Court may set conditions (cost-shifting)

Committee Notes: “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing.”

Detailed enough so that others can evaluate burdens, costs, likelihood of relevance

May still need to preserve inaccessible ESI


March 19, 2007

ACCESSIBILITY OF DATA

Examples of data identified in the Committee Report as “present[ing] particular problems” in terms of accessibility:

Back up tapes intended for disaster recovery purposes that are often not indexed, organized or susceptible to electronic searchingLegacy data remaining from obsolete systems, which is unintelligible to current systems“Deleted” data (including fragmentary data) that requires forensics for recoveryDatabases designed to create information in certain ways that cannot readily create that information in other ways


March 19, 2007

ACCESSIBILITY OF INFORMATION

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March 19, 2007

REVISED RULES FOR DISCOVERY REQUESTS

Rule 34—Document Requests

Adds Electronically Stored Information (“ESI”) as category of information may be produced

Rule 33(d)—Interrogatories Relying on Business Records

Adds ESI (replaced data compilation)

ESI is proper type of information to rely upon in interrogatory answers

May have to provide additional information to make equally accessible to requesting party

Rule 45 (Subpoenas) revised to include ESI as appropriate information to seek

March 19, 2007

FORM OF PRODUCTION

Entitled to specify form of production (paper vs. pdf, etc.)

If not specified, responding party may produce in any form that is “reasonably usable” OR “in that which ESI is ordinarily maintained”; Rule 34(b)(ii)

If form specified, responding party must state whether they object to that form & what form they intend to produce

Also must disclose if other forms available, even if requester only asks for one form. In re Bristol-Myers Squibb Sec. Litig., 2005 F.R.D. 437 (D. N.J. 2002); Storch v. IPCO Safety Products, Inc., 1997 U.S. Dist. LEXIS 10118 (E.D. Pa. Jul. 16, 1997).

Only need produce one form for documents

Rule 34(b)(iii)

March 19, 2007

DOCUMENT REQUEST DRAFTING/RESPONDING

Broad requests in = Broad production out

Consider narrowing to specific person’s files and date ranges

More productive, more likely to stand up

If object to searching or producing ESI because unduly burdensome, must disclose what is not being searched and where it is

Communicate with counsel

Metadata?

“Quick Peek”/Clawback

March 19, 2007

HOW DO I RESOLVE DISPUTES ABOUT THE SCOPE OF MY SEARCH?

Requesting party should evaluate information from accessible sources before asking responding party to search and produce information from not reasonably accessible sources.

If they still want you to search, parties should confer regarding burdens and costs of accessing/retrieving information, needs to support good cause showing, and limitations that should be imposed.

If still in dispute

Motion to Compel

Motion for Protective Order

- Committee Notes to Proposed Amendments at 14-15.

March 19, 2007

HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH?

Court balances burden and costs against particular circumstances in case. Committee notes cite these considerations:

1. Specificity of discovery request

2. Quantity of information available from other and more easily accessed sources

3. Failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources

4. Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources

5. Predictions as to the importance and usefulness of information

6. Importance of issues at stake in litigation

7. Parties’ resources


March 19, 2007

If dispute regarding accessibility, Court may order sampling of offline data to determine relevance

Zubulake I, 217 F.R.D. 309, 324 (S.D.N.Y. 2003)(ordered defendant to search and produce five backup tapes out of ninety-four backup tapes to determine whether relevant information existed on the backup tapes that was not present elsewhere)

Delta Financial Corp. v. Morrison, 2006 N.Y. Misc. LEXIS 2232 (S. Ct. N.Y. August 17, 2006) (ordered plaintiff to do sample searches to determine whether relevant information existed on backup tapes; cost-shifted entire test run, including review, to defendant)

HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH?

March 19, 2007

COST SHIFTING

26(b)(2)(B)—“A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

If court finds something not reasonably accessible—may still get it if prove good cause, but may have to share in costs.

Cost of compliance may or may not include attorney review time

Committee Notes to Proposed Amendments at 17: Suggests that cost of restoration can be cost shifted, unclear on attorney review time (although does note that the producing party’s burden in reviewing information for relevance and privilege may be weighed by the Court when determining good cause)

Zubulake: Court excluded attorney time

Responding party pays for response

Limited by 26(c): Unduly burdensome, labor intensive, significant financial burden.

New RulesTraditional approach

March 19, 2007

COST SHIFTING

Zubulake factors — Hierarchy of importance:

1. Extent to which request specifically tailored to discover relevant information

2. Availability of such information from other sources

3. Total cost of production, compared to the amount in controversy

4. Total cost of production, compared to the resources available toeach party

5. Relative ability of each party to control costs and incentives to do so

6. Importance of the issues at stake in the litigation

7. Relative benefits to the parties of obtaining the information

- Zubulake v. UBS, 217 F.R.D. 309, 322 (S.D.N.Y. 2003)

March 19, 2007

COST SHIFTING

Zubulake factors followed by:

ND Illinois (Wigington, additional factor “importance of the requested discovery in resolving the issues in the litigation”)

ED Wisconsin (Hagemeyer)

ND California (OpenTV)

Zubulake not followed in these jurisdictions:

ND Texas

Supreme Court of NY, Nassau County

March 19, 2007

ACCESS TO DOCUMENTS

Rule 34(a) includes inspection, copying, testing

Could permit court to allow direct access to ESI

In practice, access only permitted if bad faith (noncompliance with discovery)

Rule 33(d)

Direct access “only if that is necessary to afford requesting party an adequate opportunity to derive or ascertain an answer to the interrogatory”; Committee Notes to Proposed Amendments at 28.

March 19, 2007

PRIVILEGE ISSUES

New Rules 26(b)(5) & 45(d)(2)(B) establish procedure only for addressing inadvertent disclosure of privileged materials

Does not change substantive privilege law (i.e. whether production results in waiver)

March 19, 2007

PRIVILEGE ISSUES

New Procedure (Rule 26(b)(5)) for retrieving inadvertently-produced material protected by privilege or work product

Privilege holder notifies receiving party immediately upon becoming aware of disclosure

After being notified, receiving party must return, sequester, or destroy

Receiving party cannot use or disclose information (if already used or disclosed, must take reasonable steps to retrieve)

Receiving party may promptly present information to court under seal for determination of claim

Whether material privileged still substantive law issue

March 19, 2007

PRIVILEGE ISSUES

Proposed FRE 502—Formalize “subject matter” waiver of AC/WP privilege for voluntary disclosure, exception: “inadvertent” disclosure

502(a): Subject Matter Waiver—Requires production of similar information

502(b): Exception: Inadvertent disclosure—if holder of privilege/WP took reasonable precautions to prevent disclosure, AND took reasonably prompt measures to rectify the error (pursuant to F.R.C.P. 25(b)(5)(B).

Comment period ending Feb. 2007.

March 19, 2007

SANCTIONS—RULE 37

Situations that may warrant sanctions:

1. willful destruction of evidence

2. failure to preserve information on backup tapes

3. unreasonably or inconsistently enforced document retention policy

4. negligence in production

5. purposeful sluggishness in production

6. incomplete & inaccurate Rule 26 disclosures

March 19, 2007

SANCTIONS—RULE 37

Modified to add safe harbor provision—37(f): “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system.”

Good faith requires litigation hold. If no hold, probably no safe harbor for inadvertent deletion.

Intervention with deletion may be required; consider availability elsewhere, potential relevance

Committee Notes: ordinary computer use results in routine alteration & deletion of information for reasons unrelated to litigation

March 19, 2007

WHAT DOES IT ALL MEAN?

Learn what systems and types of information you will be dealing with as soon as possible

Put guidelines in place now to streamline production issues in the future – a little extra work on the front end may significantly reduce costs later

Be prepared to address all e-discovery issues very early in the litigation process; have plans for your preferred methods of dealing with production issues

Until further case law develops, err on the side of retention

Always remember that demonstrable good faith is extremely important

March 19, 2007

SELECTED RESOURCES

Amendments to the Federal Rules of Civil Procedure, available at www.uscourts.gov/rules/EDiscovery_w_Notes.pdf

Report of the Advisory Committee on the Federal Rules of Civil Procedure to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (May 2005), available at www.uscousts.gov/rules/reports.htm

www.applieddiscovery.com

www.thesedonaconference.org

March 19, 2007

QUESTIONS?

March 19, 2007

THANK YOU

March 19, 2007

S. Richard Carden ([email protected])

Jennifer M. Kurcz ([email protected])

MBHB300 South Wacker DriveChicago, Illinois 60606-6709312 913 0001 phone312 913 0002 faxwww.mbhb.com

www.aplf.org

February 8, 2007

INTERESTING NEW CASES

• In re NTL, Inc. Securities Litigation, 2007 WL 241344 (S.D.N.Y. 2007) (granting adverse instruction, costs and fees for failure to properly implement litigation hold)

• Hutchens v. Hutchens-Collins, 2007 WL 319990 (D.Or. 2007) (cost shifting does not apply to accessible ESI)

• Miller v. Holzman, 2007 U.S. Dist. LEXIS 2987 (D.D.C. 2007) (applying Sedona Conference principles in addressing litigation hold)

• In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D.N.Y. 2007) (requiring production of metadata for future productions in existing case)

• Quinby v. WestLB AG, 2007 U.S. Dist. LEXIS 2955 (S.D.N.Y. 2007) (addressing cost shifting in restoration of backup tapes)

February 8, 2007

INTERESTING NEW CASES

• Ameriwood Indus., Inc. v. Liberman, 2006 U.S. Dist LEXIS 93380 (E.D. Mo. 2006) (conducting good cause analysis in granting request for imaging of hard drives)

• Zurich American Insurance Co. v. ACE American Reinsurance Co., 2006 U.S. Dist. LEXIS 92958 (S.D.N.Y. 2006) (granting sampling of “opaque” data storage system intentionally used by “sophisticated” company)

• Kentucky Speedway, LLC, v. Nat’l Ass’n of Stock Car Auto Racing, 2006 U.S. Dist. LEXIS 92028 (E.D. Ky. 2006) (citing Sedona Conference and commentator in endorsing a presumption against the production of metadata)

• Williams v. Sprint/United Management Co., 2006 WL 3691604 (D. Kan. 2006) (denying production of e-mails in native format where parties had previously agreed to production in other format)

• Flexsys Americas LP v. Kumho Tire U.S.A., 2006 U.S. Dist. LEXIS 88303 (N.D. Ohio 2006) (creating e-discovery plan for parties when they had not reached agreement on one)