ed in real world

8/3/2019 ED in Real World

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E-Discovery in the Real WorldTom O’Connor

Gulf Coast Legal Technology Center

www.gulfltc.org



TOPICS



E JARGON

ESI Metadata Native Format

If a request does not specify a form for producingelectronically stored information, a party must produce it in aform or forms in which it is ordinarily maintained or in areasonably usable form or forms

Processing Culling Deduping Denisting

Reasonably Accessible

Meet and Confer

Cost Shifting



A Brief Look Back

1990 to 2002 Litigation was mostly paper based

Legal profession was slow to embracecomputerization

Corporate IS applications operated asseparate information “Silos”

Records Retention and Compliancerequirements were not taken seriously



Claim

Calendar:• Key Dates• Tasks• Rules-

Based

Case

Injured

Party

• Profiled E-Docs.• PID• Evidentiary Docs.• Expert Reports

• Scanned Docs.• Correspondence• Depositions• Any E-Docs.

DocumentDatabase

Reports

DocumentLinks:• Any E-Docs• Work Prod.• Scanned• Reports

• Matters• Settlements• Collections.• Security.• Reporting.• Administration.

Other CMP Areas

Historic:• Events• Work • Premises• Custom

Contact

Records

Financial:• Fees

• Expenses• Allocations• Co-Counsel

Address Book:• Link to all

Parties• Plaintiff • Defendant• Oppos. Counsel• Staff • Experts/Drs.

• Co-counsel• Etc.

DepositionTracking

DiscoveryTracking

Staffing:• Tasks• User

Profiles• Security

Plaintiff

Defendant



Document Management Convergence

Corporate Documents

(until ~2002)

ComplianceRecords

Management

Discovery

(paper based)Knowledge

Management



Corporate Documents

(circa 2002 to present)

ComplianceRecords

Management

Discovery (mixed

paper/edata)

Knowledge

Management




Corporate Documents

(2008 and beyond)

Compliance

Records

Management

Discovery

(mostly edata)

Knowledge

Management




ANY type of electronic info WP documents

Spreadsheets

Audio files

Video files

Pictures

Metadata Corrupt data

Deleted data

THE PROBLEM



THE PROBLEM

Information gets doubled approximatelyevery four years

Global Disk Space Per Person (GDSP) *1983 20k1996 28MB2000 472MB2004 1 GB2008 2 GB

2010 4 GB

Information Explosion. Confidentiality, Disclosure, and Data Access:Theory and Practical Applications for Statistical Agencies

Average corporate hard drive holds 100 GB of data


http://slidepdf.com/reader/full/ed-in-real-world 12/50Source: www.about.com

4 billion US emails every day

392 million per second

I trillion texts in Q3 & Q4 2010

294 billion

messages per day worldwide

THE PROBLEM



BOXES OF BYTES

Megabytes1 2,500 50

FileSizes

= =

Typical PCHard DiskTypical Server

Hard Disk

Terabytes

Gigabytes

10 25,000 500

20 50,000 1

100 250,000 5

200 500,000 10

300 750,000 15

400 1,000,000 20

500 1,250,000 25

1,000 2,500,000 50

2,000 5,000,000 100

5,000 12,500,000 250

10,000 25,000,000 500

20,000 50,000,000 1

40,000 100,00,000 2

60,000 150,000,000 3



PAGES PER FILE TYPE

Document Type AveragePages/Doc Average

Pages/GB AveragePages/MB

Microsoft Word files 8 64,782 63

Email files 1.5 100,099 97

Microsoft Excel files 50 165,791 161

Lotus 1-2-3 files 55 287,317 280

Microsoft PowerPoint files 14 17,552 17

Text Files 20 677,963 662

Image Files 1.4 15,477 15

14



ESI

Word processingdocuments

Graphic images

Web logs

SpreadsheetsEmail messages and attachments

http://cres.anu.edu.au/outputs/anuclim/spreadsheet-big.gif

http://www.le.ac.uk/cc/cfs/images/mailbox005.jpg



“OLD” SOURCES

Laptop harddrives

Desktop hard drives

Floppy discs

CDs/DVDs PDAs

Backup tapes

Pagers

Cell phones

Network servers



NEW SOURCES

IM and Texting VOIP

MP3 Storage Devices

(iPods) Memory sticks/flash drives

GPS

Retail purchase carddatabases

Social Media



PARADIGM SHIFT

Taking an electronic document such as aspreadsheet, printing it, cutting it up, andtelling one‟s opponent to paste it back

together again, when the electronicdocument can be produced with akeystroke is madness in the world in

which we live.” Magistrate Judge John M. Facciola

Covad Comm. Co. v. Revonet,Inc., 2009 U.S.Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009)



PARADIGM SHIFT

“Litigation habits and customs learnedin the days of paper must be revisitedand revised.

The culture of bench and bar mustadjust.”

Hon. Lee Rosenthal

Chair, Standing Committee of the Judicial Conference



THE CHALLENGE

“don‟ t be a lost ball in tall weeds”



A SOLUTION



NEW RULES



Price Waterhouse Cooper (2003) … $345 million for

“overly slow” production

Phillip Morris (2004) -- $27.5 million sanction

against 11 senior executives who failed to preserve e-

mails

Coleman Holdings v. Morgan Stanley (2005). . .

$604 million in compensatory damages and $805

million in punitive damages after adverse instruction

Qualcom v Broadcom (2007) : attorneys reported to

state bar

Victor Stanley, Inc. v. Creative Pipe, Inc.: $1M insanctions and jail

NEW LITIGATION RISKS



NEW RULES EXPLAINED



DUTIES OF COUNSEL

Duty of Confidentiality Duty of Competence

Duty of Loyalty: Conflicts with Clients

Duty to Comply with Discovery

Obligations Duty to Preserve Evidence



CONFIDENTIALITY

METADATA Confidential

Information

Strategic Information Proprietary

Information

Trade Secrets

Client Lists



DUTY TO PRESERVE

When faced with anticipated or pending litigation orgovernment investigation matters, corporations have aobligation to preserve potentially relevant evidence

Preservation requires preventing willful or inadvertent

destruction or alteration (spoliation)

Records and information management is a key component,especially where it can be used to suspend documentdestruction

The duty to preserve goes beyond documents under “recordsmanagement” to wherever and in whatever format thepotentially relevant evidence resides



DUTY TO PRESERVE

“Once the subjects and informationsystems are identified, e-mail records andelectronic „files‟ of key individuals anddepartments will be the most obvious

candidates for preservation.” (AdvisoryCommittee Notes to Amendments to Fed.R. Civ. P. 37)

“[T]he duty to preserve extends to thoseemployees likely to have relevantinformation – the „key players‟ in the case.” (Zubulake IV, 220 F.R.D. at 217-18).



LITIGATION HOLD

DUTY TO BE PROACTIVE



DUTY TO BE PROACTIVE

Zubulake v. UBS Warburg (S.D.N.Y. 2004)

Phoenix Four, Inc. v. Strategic ResourcesCorp. (S.D.N.Y.2006)

ABA Civil Discovery Standard 10a duty to advise client of preservation duty &

consequences

Samsung Electronics Co., Ltd. v. Rambus,Inc. 2006 WL 2038417 (E.D.Va.) General admonitions by counsel to preserve relevant

documents is insufficient and counsel must instruct onthe subject matter and kinds of documents to preserve.



DISCOVERY OBLIGATIONS

ABA Rule 3.4: A lawyer shall not “unlawfully obstruct another party' s

access to evidence…” ABA Model Rule3.4 (a)

Counsel or assist a client to do so ABA Model Rule 3.4 (a)

Fail to make reasonably diligent effort tocomply with a legally proper discovery

request by an opposing party ABA Model Rule 3.4 (d)



DIRECT DISCOVERY

Counsel must actively oversee and direct thediscovery and preservation process. Merely issuing an order or memo is not enough Zubulake V is clearest exposition of duties

Counsel‟s duty to oversee extends to: the preservation of evidence the location of responsive information the timely production of responsive information

ABA Rule 5.3 requires lawyers to supervise allnonlawyer assistants



DUTY RE: REASONABLY

ACCESSIBLE DATA

FRCP 26:

“[A] party need not provide discovery of information that the party identifies as not

reasonably accessible;”

The producing party has the burden to showthat requested electronic information is notaccessible; and

A court may order the production of inaccessible electronic information for goodcause, if the requesting party seeks a courtorder compelling its production.



DUTY TO CONFER EARLY

FRCP 26 requires parties, before the initialcase management conference, to:

(a) “discuss any issues relating to preservingdiscoverable information”; and

(b) to present to the court a discovery plansetting forth the parties‟ views concerning “any

issues relating to disclosure or discovery of electronically stored information, including theform in which it should be produced.”



DUTY TO CONFER EARLY

Sedona Conference Cooperation Proclamation

Mancia v. Mayflower Textile Services

Co. ( Civ. No. 1:08-CV-00273-CCB ,D. Md.October 15, 2008)

Agree on search terms

Cut cost BEFORE review J.Schiendlin … EECA



DUTY OF COMPETENCE

Communication ABA Rule 1.4 requires that a lawyer reasonably consultwith a client about the means by which to accomplishthe client’s objectives in the representation and consultwith the client about any relevant limitation on thelawyer’s conduct when the lawyer knows that the client

expects assistance that is not permitted by the rules orother laws.

Meritorious Claims

Reporting

Misconduct Technology



SEARCH TECHNOLOGY



DUTY OF LOYALTY

Conflicts with Clients Scope of discovery effort

Scope of preservation

Coleman (Parent) Holdings Inc. v. Morgan Stanley, Inc.,2005 WL 674885 (Fla.Cir.Ct., 2005.) [$1.4 billion judgment, rev'd on other grounds, based on discoverymisconduct.

Qualcomm v. Broadcom



40

EDRM



41

REAL WORLD EDRM

ForensicsCopy, Image,

Mirror

CopiedData

SecurityHash

ANative Z

PDF, TIFF

File ConversionPDF, Metadata, etc.

Digital Redactionand Clawback

Load File Creation

C O L L E C T

P R O C

E S S

C O N V E R T

Secure Storage

PRESERVATION

PRODUCTION

PortableDevices,

Hard Drives

DesktopComputers

Laptop

Computers

ServersEmail, File,Ecommerce

ELECTRONICALLY STORED INFORMATION

RemovableUSB Drives,Flash Media

Filtering by Term, Date,Author, etc

Data Carvefor double deleted

Forensics Investigation,Review and Reporting

FILTER

De-Duplication

E-Discovery Forensics



EMAIL



WHAT TO DO?

EARLY ACTIONS TO TAKE

1. Meet with the client

a. Include IT representatives

b. Understand the client’s systemsand policies

2. Issue “Litigation Hold.”

3. Agree (to the extent possible) on ESI

and e-discovery issues before the initial

conference with the court

SMALL CASES



SMALL CASES

Budget conscious solutions

Common native format files

Host your own data

Programs installed locally Smaller collections

fit on DVD or external drive

Data exchange agreement Selection

Format

Sampling

SMALL CASES



SMALL CASES

Technology is not the key tosuccessful management of e-Discovery in small cases

The single most effective way to keepeDiscovery costs low is to work with

your opposition in a cooperativemanner so you can stipulate to theuse of low cost solutions.

TAKE AWAYS



TAKE AWAYS

Understand the DistinctiveCharacteristics of ESI

Become Familiar With ESI StorageSystems

Learn About Records ManagementPrograms and Policies

Project Management is Critical

Consulting as a Service Play Educate Your Client On Their

Preservation and Discovery Duties



CLIENT EXPECTATIONS

Expertise

Coordination with IT

Service & Pricing Disclosure

Approvals

Decisions Planned

Reactive

RESOURCES



RESOURCES