Litigation Preparation:What Records Managers Need to Know

Lori A. Tetreault, Esq.

May 17, 2011

We’re Gonna talk About:

Pre-trial Discovery The new Federal Rules of Civil Procedure “Electronically Stored Information” (ESI) The Infamous “Litigation Hold” and your

Retention Policies and Architecture Subpoenas to Non-Parties Certifying or Testifying at Trial

PRE-TRIAL DISCOVERY

What is “Discovery”?

Pre-trial devices used by a party to obtain facts and information about the case from the other

A party can get most anything that is reasonably calculated to lead to the discovery of admissible evidence.

It’s NOT all Rule 26:

State Courts Administrative Agencies

Regulators

All allow discovery or request documents, and this has included electronic records for as long as

electronic records have existed

Federal Rules of Civil Procedure:Kinds of Discovery

Depositions upon oral or written questions;

Written interrogatories;

Requests for Admissions

Permission to enter upon land or other property;

Physical or mental examinations

Requests for the

Production of

Documents!

The 1ST Thing Records Managers Need to Know:

#1 You and your company’s IT

Department are instrumental in assisting counsel in document

production

Federal Rules Governing Document Discovery:

Rule 26, F.R.C.P. General Provisions Governing Discovery

Rule 34, F.R.C.P. Producing Documents, Electronically Stored Information, . . .

Rule 37, F.R.C.P. Failure to Make Disclosure or to Cooperate in Discovery; Sanctions

Rule 45, F.R.C.P. Subpoena

Rule 26(a): Duty to Disclose; General Provisions Governing

Discovery

Initial Disclosure: a party must, without awaiting a discovery request, provide the other party with a copy – or a description by category and location – of all documents and electronically stored information (ESI), that it has in its possession or control and may use to support its claims or defenses.

Rule 26(e): Supplementing Disclosures and Responses

Parties MUST supplement their prior discovery disclosures in a timely manner whenever the party learns that their response was incomplete or incorrect, or upon order of the court

Rule 26(g): Signing Responses

Every discovery response MUST be signed by at least one attorney of record

Signature certifies that the discovery response - to the best of that person’s knowledge, information and belief formed after reasonable inquiry - is complete and correct as of the time it is submitted.

Attorneys can get in BIG trouble (disbarred) for misrepresenting to a court!

The 2nd Thing Records Managers Need to Know:

#2 Keep communications open

with your counsel and IT department – your counsel will probably insist on it!

ELECTRONICALLY STORED

INFORMATION(ESI)

So what is ESI?

3 General Categories:

- Data Files- Background Information (e.g.,

metadata)- E-mail

1. Data Files

Active data (Readily accessible) Archival data (Stored remotely) Back-up data (Tapes, discs, zip drives, etc.) Legacy data (What’s left after equipment has

been removed from active use or data has been migrated)

Residual data (What’s left after files have been “deleted”)

*Not all data is recoverable: wiped files, IMs, overwritten files, encryptions, segments of files and files on which file shredding applications have been run

2. Background Information

Metadata Audit Trails Access Control Lists Non-printing Information

This information can be VERY important to party-litigants!

3. E-Mail

Need I say more?

The 3rd Thing Records Managers Need to Know:

#3 How to work with your

IT department

(Let me know how that works for you!)

Rule 26(b): Discovery Scope and Limits

(1) Parties can obtain discovery on any non-privileged matter that is relevant to any party’s claim or defense;

(2) However, a party need not provide ESI from sources that the party identifies as “not reasonably accessible”

So, what’s “Not Reasonably Accessible”?

Good question!

At this point, it’s is a moving target, but:

- Be readily usable- Not require

restoration or manipulation

- Be active, online, near-line or archival

- Be not readily usable- Require some type of

manipulation/restoration/reconstruction

- Be erased, like tapes- Fragmented- Damaged

“Accessible” data may: “Inaccessible” data may:

Even if it’s not “Reasonably Accessible”

A court may still order it produced depending on:

The potential value of the information Whether it can be discovered from some

other source How difficult it really is to access the data How much it will cost Whether a party cooperates in good faith in

the discovery process

AND, under Rule 26:

A court may balance the cost of producing data that is “not reasonably accessible” by shifting all or part of that cost to the requesting party, depending on the circumstances - Good Faith is VIP

In larger organizations, that cost can be astronomical. Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684

Rule 34: Producing Documents

and ESIA party may request:

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 either directly or, if necessary, after translation by the responding party into a reasonably usable form. . .

Rule 34(2) -The party against whom the request was served

must respond (either object or assent)

Within 30 days!

So, the 4th Thing You Need to Know:

#4

Make this a priority

(and get staff overtime pre-approved!)

Rule 34(b): Producing Documents

and ESI

The requesting party may specify the form or forms in which ESI is to be produced (native files, litigation support files,

TIFF images, metadata, extracted text, PDF, printed

paper)

If I could afford the cost –I would ALWAYS want the native

file with the Metadata!

Why?

Rule 34: Producing Documents

and ESI

If a Request does not specify a form for producing ESI, a party

must produce it in a form or forms in which it is ordinarily maintained or in a reasonably

usable format.

The infamous

LITIGATION HOLD

Document retention and destruction policies;

Document retention architecture:

Your servers, email system, back up systems, off-site storage facilities, data custodians, access rights, IM archiving, voice mail archiving, etc.

If you don’t have these mapped out, you should!

The first thing your counsel will do is learn your:

If litigation is reasonably anticipated, Counsel may:

Issue a Litigation Hold letter, identifying the information to be preserved

Insist that you suspend routine document and ESI destruction (generally does not apply to routine back up tapes)

Meet with the major business units (Records, IT, HR) to explain the hold

Institute tracking and audit measures

Meet with all employees Require changing records

management or IT procedures

Communicate directly and often with you, IT and key players

Reissue the Litigation Hold Letter repeatedly and send periodic reminders

Assess whether key individuals should be required to certify their preservation and retention actions

This seems like a lot

Why go through all this?

Rule 37: Failure to Make Disclosures or to Cooperate in

Discovery; Sanctions

An award of attorney’s fees and expenses to the party moving for an order to compel discovery

Directing the jury to take as established the matters claimed to be withheld in discovery

Prohibiting the disobedient party from introducing designated matters into evidence

Striking pleadings in whole or in part

Dismissing the action in whole or in part

Rendering a default judgment against the disobedient party

Treating the discovery failure as contempt of court

Taking action against the party AND ITS ATTORNEY!

The 5th Thing Records Managers Need to Know:

#5

Your lawyer’s not being a pest just because

she can!

NON-PARTIES

Rule 45: Subpoenas

May be issued to non-parties If to a non-party, Notice must first be served on

the parties, and the Subpoena so should indicate May specify the form or forms in which ESI must

be produced Must be issued by a court or authorized attorney May command a personal appearance or the

production of documents, or both, at a date/time/place certain (Subpoenas duces tecum)

Non-party may object within 14 days

Responding to a Subpoena for Documents

Must produce them as they are kept in the ordinary course of business, or

Must organize and label them to correspond to the categories in the Subpoena

If a Subpoena does not specify a form for ESI, the ordinary form is required

A non-party may make copies in lieu of producing the originals

What’s it Gonna Cost Us?

If you choose to make copies, you are usually required to pay your own costs of production

Non-party may make the same objection to producing ESI that is “not reasonably accessible”

Non-party MUST respond/object within 14 days or

The non-party is deemed to have waived any objection

If you do object, the Court has a duty to protect you from unreasonable costs of production

AT TRIAL

Rule 803: Federal Rules of Evidence

Documents are admissible if they are kept in the course of a regularly

conducted business activity AND the custodian of records testifies or

certifies as to their authenticity

Written Certification must state

under oath:

When the record was made; That it was made and kept as a

regular practice; In the regular course of business; and That it is authentic or an authentic

copy

What does this mean for ESI?

Your system should have the ability to freeze a record – and the metadata can prove this

You should have, at the very least, an audit trail showing document creation, modification, access, duplication, etc.

The 6th Thing Records Managers Need to Know:

#6

You need to be sure when testifying or

certifying under oath

We talked about:

Pre-Trial Discovery, specifically Document Production, and your role in it;

The nuances of Electronically Stored Information;

Why it’s important to have retention and destruction policies in place, and to map your retention architecture;

What to expect in a litigation hold; Sanctions for failure to produce documents at

trial; Subpoenas to non-parties; and Testifying or certifying authenticity at trial

QUESTIONS

COMMENTS

EXPERIENCES

???

Lori A. Tetreault, Esq.

Thank you!