Rudyard Kipling

I keep six honest serving-men

(They taught me all I knew);Their names are What and Why

and WhenAnd How

and Where and Who. 1

Electronic Data Discovery (EDD)

What is the ESI is? Why do you need it? When do you need it? How is the ESI to be produced? Where is this ESI located? Who has/had custody of the ESI?

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e-Discovery1. Not Just for Counsel for Fortune 500s• ESI now prevalent in almost every lawsuit• ESI can mean the difference between guilt

and innocence or millions of dollars

2. E-Competence• You don’t have to be Bill Gates• But you better understand ESI• Avoid malpractice and sanctions

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e-DiscoveryE-Competence• Proper discovery and admission of ESI is

now part of your Duty of CompetenceLawyers must have basic understanding:• Of ESI and related issues• Not just from legal standpoint• But also tech issues for cost effective

discovery and to protect Client• Risks: sanctions, costs, malpractice

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ESI – Information Goldmine• Electronic Communication– IM, email, text messaging, tweet

• Electronic Devices/Storage– Finger drives, blackberries, hard

drives, cell phones, GPS

• Web Content– Listserv, MySpace, Facebook, tweets

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E-Discovery Amendments

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Rule 26(a)(1)(B): Req Disclosures A party must, without awaiting a discovery

request, provide to other parties: a copy of, or a description by category and location of, all documents, data compilations, 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;

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Rule 26(f): Meet & Confer Effect

Must sit down before discovery begins to agree on some form of protocol

IntentParties must proactively deal with ESI

Practice PointMust be prepared in advance

Save time, money, headache, sanction 8

Rule 26(b)(2): Undue Burden Effect

Sets up two-tier discovery

IntentRemoves uncertainty about who pays

Practice PointsThis creates more work for defendantsMaintenance of data from old systems

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Rule 26 (b)(5): Claw Back Whoops!

Dude where’d my privileged ESI go?Intent

Allow "clawback" of infoPractice Point

Digital mulligan still damaging10

Zubulake v. UBS Warburg • Duty to preserve ESI during litigation

• Duty to monitor client’s compliance with electronic data preservation and production

• Data sampling

• Shifting the costs of restoring “inaccessible” back up tapes to the requesting party

• The imposition of sanctions for the spoliation of electronic evidence

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Qualcomm v. Broadcom • Attorneys and clients must both

understand how and where electronic documents, records and emails are maintained• And how best to locate, review, and

produce responsive documents• Attorneys must take responsibility for

ensuring that their clients conduct a comprehensive and appropriate document search 12

Rule 26(f): Meet & Confer Map ESI content

Where and what it is, preserve and collect

Preservation ActionsLitigation is pending or reasonably anticipated

Collection ProtocolsKnow how ESI is stored, accessed, extracted

Cost Burden ArgumentsEvaluate cost/burden finding certain info

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Gutman v. KleinMagistrate Judge in Brooklyn

• Recommended entering a default judgment vs. D• Destroyed and falsified electronic documents in a

federal fraud and RICO action

Expert's Report Stated that Defendant• Backdated the installation of the replacement

computer's OS to make it appear older• Uploaded thousands of files while the computer's

clock was set to a date months earlier• Ran a data recovery program to determine if he

had "covered his tracks"14

D’Onofrio v. Sfx Sports Group, Inc • Court declines to order production of

Metadata • Request for production did not specify

production in original format• Court orders evidentiary hearing on

spoliation allegations• To obtain metadata you may need, you

should specifically ask for it to begin with!15

Victor Stanley, Inc. v. Creative Pipe(1) The reasonableness of the precautions

taken to prevent inadvertent disclosure

(2) The number of inadvertent disclosures

(3) The extent of the disclosures

(4) Any delay in measures taken to rectify the disclosure

(5) Overriding interests in justice 16

Sedona Conference• Searches Specific legal context

• Due diligence in choosing a search product

• Using an information retrieval tool –No guarantee that all documents will be

identified

• Make a good faith attempt to cooperate on choosing and implementing information retrieval

• Expect that their choice of methodology will need to be explained

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Practice Points1. PRESERVE YOUR CLIENT'S ESI

2. ASSESS AND UTILIZE THE OPPOSING SIDE’S ESI

3. USE PRETRIAL CONFERENCES TO YOUR ADVANTAGE

4. CAREFULLY DRAFT DISCOVERY REQUESTS

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Practice Points5. PRODUCTION FORMATS ARE

CRUCIAL

6. DON'T HESITATE TO SEEK THE ASSISTANCE OF THE COURT

7. CAREFULLY GAUGE THE COSTS

8. DON’T PISS OFF THE JUDGE 19

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