Spoliation Wars and other ESI highlights

Antigone Peyton & Steve Morrissett A Presentation by the Electronic Litigation Group

August 9, 2010

The Fundamentals

n  Litigation holds (preservation) n  Safe harbor - routine operation – 37(f)

n  Identifying ESI custodians n  Inventory of ESI sites n Rule 26(f) meeting ESI requirements n  Protective order provisions n  Searches – context, filters, key words n Metadata – searching, production n  “Not reasonably accessible” – 26(b)(2)(b)

More Fundamentals

n  E-discovery team n  Specify “form” of production – 34(b)

n Failure to specify “form” – 34(b)(ii) n Rule 33(d) complications for ESI n Redactions of electronic files n  Protecting confidentiality n  Privilege “claw-back” and diligence n  Service of process & subpoenas n  ESI sampling – 34(a)(1)

Yet More Fundamentals

n  Evidentiary issues – authentication n  Social media issues n  Transient (ephemeral) data n  Foreign privacy laws n  Foreign blocking statutes n  Foreign languages – search, review n  Service of process & subpoenas n Cost-shifting n  Proportionality: benefit v. burden

The Wrong Attitude

The Right Attitude

Themes in 2010 decisions

n  Sanctions and cooperation duties n Motions to compel and privilege

disputes n  Fewer decisions regarding

preservation, form of production, and accessibility of data

n  Privacy of information n  Social media discovery

Preservation

n  Synventive Molding Solns. v. Hysky Injection Molding Sys. (patent case)

n  Though not formally part of the FRCP’s, legal holds are mandatory

n  Court can implement holds, including directions for implementation, if existing hold is deemed inadequate

n  Ordered P to file sworn decl. describing hold and provide a list of affected custodians

Preservation

n Not just e-mail n  Ephermeral data (e.g., instant

messages, data logs) n  Skype messages n USB flash drive

Pension Committee

n  Issue written litigation holds early n  Future plaintiffs-no later than retention of outside

counsel n  Should instruct custodians not to destroy records n  Stop auto-destruction programs, especially for unique

data

n  Search broadly n  Preservation/collection from key custodians is required n  Failures relating to minor custodians, or redundant

docs can be negligent n  Follow up on former employees or those who may have

changed jobs within company

Pension Committee

n  Provide adequate discovery supervision

n  Need to be experienced and well-versed in duties n  Do not delegate to an unsupervised/inexperienced

person n  Do not allow employees to determine what is relevant

without guidance

n Memorialize discovery efforts during process

n  Describe rationale behind decisions and information relied on

Pension Committee

n Monitor and manage discovery and compliance (even if case is stayed)

n  Sweep all forms of ESI n  Include PDAs, home computers n  All known media the business uses

n Assume that oversights will be noticed

n Don’t oversell reliability of process (“all documents”)

n  Defensive affidavits should come from people with personal knowledge of the efforts

Pension Committee

n Gross negligence v. negligence line n  “Contemporary standards” of

discovery practice rendered failures re: key custodians grossly negligent

n Worthy of adverse inference n No proof of intentional misconduct

Rimkus

n  Judge Lee Rosenthal, Chair of Judicial Conference Committee on Rules and Practice and Proceedure

n  5th, 7th, 8th, 10th, 11th, and D.C. Circuits require bad faith to impose adverse inference

n  Gross negligence not enough n  2nd-negligence sufficient, each party bears

the risk of its actions n  3rd-balancing test (degree of fault vs.

prejudice)

Rimkus

n  5th-Adverse inference when there is bad faith, mere negligence not enough

n Dismissal appropriate when “conduct was so egregious as to amount to a forfeiture of his claim”

n Uses Sedona concept of proportionality-burdens and costs weighed against potential value and uniqueness of data

Sanctions

n  Failure to adequately supervise preservation/collection/production

n Cherrington Asia Ltd. v. A&L Underground Inc.-inadequate preparation of 30(b)(6) witness on party’s e-discovery collection efforts

n  Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co.-failure to produce native files and misinformation

Sanctions

n  In re A&M Florida Properties n  Client and outside counsel sanctioned

because outside counsel “simply did not understand the technical depths to which [e-discovery] can sometimes go”

n  No bad faith finding n  Court required facts relating to appropriate

allocation of sanctions

Redacted E-Filings

n  Increasing use of electronic filing systems

n Doc Type: searchable PDFs n  Issue: improper redactions of PDF n Conversion of redacted word doc to

PDF doesn’t properly redact the text

Redacted E-Filings n  Tribune Co. bankruptcy n  Issue: Failure to properly redact complaint filed by

trustee for creditors n  Redacted in Microsoft Word and converted to PDF

for e-filing n  Firm had redaction issue in another creditor case n  Sanction request: limit firm’s access to confidential

docs n  Examiner finding: no intentional or reckless

violation of confidentiality order (report published Aug. 3, 2010)

Social Media

n  Stats: Facebook n Over 500 million active facebook

users (50% daily users) n Over 100 million w/public information n Complete facebook profile contains

over 40 pieces of information (+wall posts & status updates)

n  2/3 of comScore’s Top U.S. websites integrated

Social Media

Social Media

n  Internet forums n  Weblogs n  Social blogs n  Microblogging n  Wikis n  Podcasts n  Pictures n  Video n  Ratings n  Social Bookmarking

Social Media in Court

n Criminal proceedings-sentencing

n  Evidence to discredit witness/ impeachment

n  Investigation tool-authorities, lawyers, and jury consultants

Social Media

n  Privacy preferences give way to liberal discovery rules in litigation

n Many rights are waived upon joining, or by default settings

n  Information may be subject to subpoena

n  Little to no expectation of privacy n  Leduc v. Roman (Quebec)-private

Facebook page still discoverable

Social Media

n  Phila. Bar Op. 2009-02 (3/2009) n  Lawyer had 3rd party send friend request to

adverse witness n  Lawyer cannot do that for purposes of

searching for otherwise private information on Facebook page

n  Rules regarding non-lawyer assistants apply to third-party actions

n  Concerns re: dishonesty, fraud, deceipt or misrepresentation

Social Media Guidance for lawyers and future lawyers n  Florida Supreme Court upholds

sanction against trial lawyer who called the judge a “Witch” on a blog

n  $1,200 + 5 misconduct charges n  First Amendment defense defeated

Social Media Guidance for lawyers and future lawyers n  Illinois public defender looses job over blog n  posted confidential information relating to representation

n  When is the LinkedIn profile an advertisement for business?

n  Bar groups considering formal searches and requesting access to social media sites

n  Florida ethics opinion-unethical for judge to friend lawyers who practice before him

n  Careerbuilder.com 2009 survey-45% of employers used social media sites to investigate job candidates

Social Media

n  The President’s Advice: “Well, let me give you some very practical tips. First of all, I want everybody here to be careful about what you post on Facebook, because in the YouTube age, whatever you do, it will be pulled up again later somewhere in your life.” “Obama warns U.S. teens of perils of Facebook,” Sept. 8, 2009 (Reuters).

Service of Process

n  London High Court allowed service of a court order to an anonymous blogger over Twitter

n Australian court allowed service of a default judgment through Facebook

n  9th Circuit-e-mail service ordered

Searching Metadata

n Data about data (D.C. Opinion 341) n  Avoid disclosure of confidential or

privileged information n  Employ reasonable means to remove

metadata that might disclose this type of information

n  Lawyers have a duty to acquire sufficient understanding of technologies to know how to protect information

Searching Metadata

n What do you do if you uncover confidential or protected metadata?

n  If actual knowledge that it was sent inadvertently, should not review before checking with other side

n  If not clear, always safer to check with other side

n Comply with instructions of sender if told to delete or return

Client Information In the Cloud

Protecting Client Information n  NY Bar Ethics Op. 820-2/8/2008 (Gmail/Yahoo, etc.) n  Lawyer may use e-mail service that conducts a computer

scan of e-mails to generate targeted ads (no human review) n  Provider stores e-mails n  Privacy policy-no one outside of sender or recipients read

messages or receive targeted ads n  Does not violate prohibition on lawyer or third party using

client confidences for their advantage n  Must stay abreast of evolving technologies to assess risk of

interception and potential alternative technologies that may reduce risks at reasonable costs

Protecting Client Information n  NC Proposed Ethics Op. NC-FEO-2010-7 (Clio-

cloud computing practice-management program) n  Attorney can use third-party SaaS in law practice n  Duty does not compel a particular method of

handling data n  Firm not required to guarantee invulnerable

security procedures n  Ethical obligation is the same: ensure provider

employs security measures that effectively minimize the risk confidential information will be lost or disclosed

Protecting Client Information n  NJ, Arizona, Vermont, Mass., and Nevada ethics

opinions n  Third-party storage and processing of data/outside

IT support n  Same confidentiality standards apply to physical

client files and e-files/stored client data n  Attorneys must exercise reasonable care when

choosing storage provider n  Must be must be knowledgeable about how it will

handle data entrusted to it n  Ensure agreements with provider include terms

requiring the preservation of the confidentiality and security of data

Evidentiary Issues

n  St. Clair v. Johnny’s Oyster & Shrimp, Inc.

n Any evidence procured of the internet is good for almost nothing

n  Lorraine v. Markel American Insurance Co.

n  counsel must be prepared to deal with the evidentiary issues associated with admissibility

Evidentiary Issues

n Authentication-FRE 901(a) n Must have evidence that doc is what

the proponent claims it is n  Internet Specialties West, Inc. v.

ISPWest-3rd party websites not authenticated by testimony of site visitor

n Need witness with some access or first-hand knowledge

Evidentiary Issues

n  FRE 901 n  901(b)(1). Testimony of witness with knowledge. n  901(b)(3). Comparison by the trier of fact or by

expert witnesses with a specimen. n  901(b)(4). Distinctive characteristics and the like. n  901(b)(7). Public records. n  901(b)(9). Evidence produced as a result of an

accurate process or system.

Evidentiary Issues

n  FRE 902: “SELF AUTHENTICATION” n  Three of the rules have been used in

the courts to authenticate ESI: n  902(5). Official publications. n  902(7). Self-authentication by

inscriptions, signs, tags or labels. n  902(11). Authentication of regularly

conducted business.

Evidentiary Issues

n  The Internet Archive n  Snapshots of web pages over time n  Backups of sites is irregular n  Telewizja Polska USA, Inc. v.

EchoStar Satellite Corp.-authenticated n  St. Luke’s Cataract & Laser Inst. v.

Sanderson-not authenticated, need statement from IA representative w/personal knowledge

Questions?

“Three things in life are certain: death, taxes, and computer failures.” -Erik Heels