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CBA Tort Law CommitteeFebruary 8, 2012

Presented by: George Bellaswww.bellas-wachowski.com

It’s no longer on paper It’s all in the computers Snail Mail is dying 103 billion emails a day 43 billion IM’s a day Some of this

information is useful. We need to get the

useful info and then figure out how to use it.

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What is e-Discovery? e-discovery is the

collection, preparation, review and production of ESI which is relevant to a legal proceeding.

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“ESI” – FRCP 34 Adopted with the Amendments to the Federal Rules

of Civil Procedure in December 2006. ESI is “Electronically Stored Information” and

includes all discoverable information ESI is subject to production under Rule 34(a) Under Rule 34(b) the form of production of ESI

can be specified by the requesting party in a request, or

thereafter by a responding party in a response but if you don’t specify, it must be produced

in the form in which is ordinarily maintained (ie. as ESI)

e-Mission Impossible? Get the ESI needed for your case and

then figure out how to use it.

But with computers this is not always easy to do – results in a lot of litigation.

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Storage Devices: Desktop Computers/Hard Drives/Laptops Backup Tapes Portable Flash Drives, Floppy, Zip and Jaz

Diskettes Optical Media - CDs, CD-Roms, DVDs Home Computers PDAs, Blackberry® smartphones and Cell Phones Digital Cameras and Flash Media Voicemail Fax Machines, Copiers and Printers iPod® and iPad® mobile digital devices, Kindle™

and Nook ™ eReaders, etc.

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Paper vs. ESI ESI, unlike paper, contains

METADATA . . . or information about the file that is recorded by the computer and the user in storing and retrieving the file at a later date.

Metadata is the history of the ESI7

Illinois Rules for e-Discovery Rule 201(b)(1) defines documents to

include “all retrievable information in computer storage”

Rule 214 requires production of all retrievable information in computer storage in printed form.

OUTDATED ! ! ! ! 8

Illinois Courts’ Simplistic Approach Comments to Rule 214 – reason for

production of paper . . . . “. . . intended to prevent parties producing information from computer storage on storage disks . . . Which may frustrate the party requesting discovery from being able to access the information produced.”

Outdated and ignores the importance of the original data.

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“tif” is just a Picture This is what you are currently getting in

discovery! Defendant prints out and images a .tif file

• Many files take up more than 1 page (spreadsheets)• Result is data spread over more than one page

resulting in separate .tif images• All underlying formulae are stripped and it is not

searchable – A .tif is just a picture of a document! To salvage it, OCR is administered

• But OCR is inherently error prone • OCR spell checking does correct errors• Numeric data cannot be spell-checked

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Effects of a “tif” tactic . . . By the time you get an edited picture of a picture . . . .• Usability – Gone• Searchability – Crippled• Integrity – Destroyed• Content – MisrepresentedIf you want to get the useful METADATA and see the document in its original format , you must insist on getting the ORIGINAL ESI FILES . . . but be careful for what you ask for!

Courts are seeing the light!Rather than simply copying the electronic media to permit ... search and review ... on a computer screen, the plaintiffs spewed the digital production onto paper and then copied the paper for review. Thus, the court must disagree with the plaintiffs counsel’s assertion that this case was a paradigm of efficient litigation.In re Instinet Group, 2005 Del.Ch. LEXIS 195 (Del.Ch. 2005)

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e-Admissibility – Nothing NewTraditional Rules Still Apply

Relevant Authentication Hearsay Best Evidence Rule (. . but what’s the

original document?) Probative Value & Unfair Prejudice

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Introduction of e-Evidence Old rules of evidence apply to paper. Authenticity goes to whether the

evidence is what it purports to be . . . Content and authorship goes to the

weight of the evidence. What rules should be applied to ESI to

be used in evidence at trial?• Commentators and scholars are debating

this subject.15

Introduction of e-Evidence

What rules should be applied to ESI to be used in evidence at trial?

Commentators and scholars are debating this subject.

New rules are being suggested. You must look to the record system it

comes from . . . and this is where the costs climb.

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Authentication of e-Evidence Social Media, Email and Electronic

Files are changing the ways we look at trial evidence

Paper is different than ESI Problems are with Authentication

• If government computers can be hacked, how safe are other computers?

ie., Wikileaks• Cloud Computing creates problems.

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Authentication of e-EvidenceWhat is the Original?

A digital file cannot exist independently from the media upon which it is recorded.

The original is just the binary code. Software is needed to “review” or view

the document. ESI consists of the human created

content and the metadata.18

Admissibility of ESI Lorraine v. Markel American Insurance

Company, 241 F.R.D. 534 (D.MD. 2007)

• a landmark decision about the admissibility and authentication of digital evidence was set down in a 100-page opinion by Magistrate Judge Paul W. Grimm

• established a detailed baseline for the use of ESI before his court.

• Given the guidelines and references provided by the judge, it now becomes difficult for counsel to argue against the admissibility of electronic evidence. 19

The Verdict – Key Evidence

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Forged Hospital Record

How do we deal with this problem in the 21st Century when all records are stored in electronic format?

Getting Hospital Records

Send request to the hospital Legal Counsel or Chief Information Officer, not the Records Custodian

Detail the information you are seeking:• ie, need to know when medical and nursing

licensed personnel documented on the chart and the time the changes were made - so you want the information surrounding the file that shows the changing of the file

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Getting Hospital Records(Part 2)

Request Audit Trail Information Request Logging Information Request the Data Dictionary

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Getting Hospital Records(Part 3 – The hard part)

No standards in the industry• All medical providers have different databases and these buzz

terms with get them to sit up, notice and balk...but most likely won't produce anything.  For example, audit trail information may not exist. 

• The data dictionary will be useless without the key to corresponding tables.  The facilities might not even have canned reports that they can spit out. 

You could request  a “Coma Delimited File” that would contain the information you are seeking, but in a spreadsheet type format that neither you nor possibly anyone else could understand.

Bottom line . . . Very expensive and hard to get.23

E-Discovery $ $ $ $ The cost of pursuing e-

discovery issues is prohibitive for most small offices . . . .

e-discovery threatens to eat up the value of litigation

New Rules attempt to make the process more affordable 24

Federal Rules – a Ray of Light!

Amendments effective on 12/6/06 specifically address ESI

The drafters noted that “the discovery of ESI is becoming more time consuming, burdensome and costly.”

Fear Not the Federal Rules Big Business is

terrified of the federal e-discovery rules

• They have spent millions preparing for e-discovery and consulting with e-discovery experts

• We will be getting generic collections and not specific answers

Embrace your fears

“ESI” – FRCP 34 Adopted with the Amendments to the Federal Rules

of Civil Procedure in December 2006. ESI is “Electronically Stored Information” and

includes all discoverable information ESI is subject to production under Rule 34(a) Under Rule 34(b) the form of production of ESI

can be specified by the requesting party in a request, or

thereafter by a responding party in a response but if you don’t specify, it must be produced

in the form in which is ordinarily maintained (ie. as ESI)

Format for Production of ESI Rule 34(b) requires the party

requesting ESI to specify the format in which information should be produced.

If not specified, the Rule permits the responding party to produce ESI either in:• the format in which it is ordinarily

maintained, or• a format that is reasonably usable

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The big change is the Meet and Confer

requirement of Rule 16

Required Disclosures• Rule 16(b) scheduling orders permit

the courts to include provisions for disclosure or discovery of ESI

• Parties are required to discuss preservation and disclosure of ESI at Rule 26 planning conferences in a “Meet and Confer” meeting.

• Parties are required to include ESI in their initial disclosures under Rule 26(a).

7th Circuit’s E-Discovery Pilot Program

Chair: Chief Judge James Holderman Includes lawyers, in-house counsel

and consultants.Several Lawyers are here today.

Primary Goal is to change the pretrial dynamic to lessen the cost of e-discovery.

Principle 1.01 – Purpose To “incentivize early and informal information

exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)”

To help courts secure the “just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information without Court intervention.”

Cornerstones of the Principles

Cooperation

Proportionality

Zealousness Dying No longer exists

in the ABA model rules

No longer has a place in our courts.

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Principle 1.02 – Cooperation An attorney’s zealous representation

is not compromised by cooperating in discovery

Failure of counsel/party to cooperate in “facilitating and reasonably limiting discovery requests and responses” contributes to a “risk of sanctions”• Note: Read Fed. R. Civ. P. 26(g) and Mancia v. Mayflower

Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

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Content Accessibility –the New Battlefield

FRCP allow responding parties to evaluate the relative expense and difficulty of producing information from one system (source) versus another.

The burden and costs may make the data “not reasonably accessible”

The question of what is – and what is not – reasonably accessible has already proven to be fertile grounds for disputes

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Reasonably Accessible – 7 Factors from Zubulake

The extent to which the request is specifically tailored to discover relevant information;

The availability of such information from other sources;

The total cost of production, compared to the amount in controversy;

The total cost of production, compared to the resources available to each party;

The relative ability of each party to control costs and its incentive to do so;

The importance of the issues at stake in the litigation; and

The relative benefits to the parties of obtaining the information.

Proportionality Emerging law has shifted the costs of

recovery of data to the requesting party.

The old rules provided that the court could issue an order to protect a party against “undue burden or expense.”

This was used as a shield by Defendants.

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Court Response: “Proportionality”

Courts developed new rules. • See Zubalake I – 217 FRD 309

Accessible vs. Inaccessible data The cost of producing accessible data is

borne by the producing party The cost of producing inaccessible data is

weighed under the 7 factor test developed by the Judge in Zubulake I and then codified in the Amendments.

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Principle 1.03 – Proportionality Fed. R. Civ. P. 26(b)(2)(C)

proportionality standard should be applied in formulating a discovery plan

ESI production requests and responses “should be reasonably targeted, clear, and as specific as possible”• Note: Proportionality standard applies to all discovery,

even “accessible” ESI

Principle 2.06 – Production Format

Requires a good-faith effort to agree on the format of ESI production at the initial 26(f) conference

If unable to agree, should be raised promptly with the court

ESI stored in a database can be produced by querying the database for information resulting in a report or other reasonably useable and exportable electronic file

Principle 2.06 – Production Format (Costs)

The requesting party is generally responsible for the cost of creating its copy of the requested information

Discussion of cost-sharing encouraged• Particularly when discussing the addition

of optical character recognition (OCR) or other upgrades of paper documents, or if non-text-searchable electronic information is contemplated by parties

Proportionality – Factors to Consider: What is the relevance of proposed discovery.

• This is a fundamental gate-keeping question. Is the discovery sought from a party or a nonparty? Does the discovery sought relate to a key player? Does the discovery relate to a key time period? Does the discovery relate to the core issues in the case? Does the discovery relate to a unique source of information? What are the burdens and costs involved? Is the information from a source that is not reasonably

accessible? What is the amount in controversy? What is the relative importance of issues at stake in the case? What are the relative resources of the parties?

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Principle 3.01 – Education It is “expected” that in any “litigation

matter” that counsel will be familiar with• The federal rules on e-discovery• The 2006 Advisory Committee report

concerning the federal e-discovery amendments

• The Seventh Circuit’s Pilot Program E-Discovery Principles

Discovery Pilot Program

Seeking to advance the Principles in other jurisdictions

Web site:•www.discoverypilot.com

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State Courts New York is considering the adoption

of the Federal Rules New Jersey courts are acting on their

own to adopt the Principles California is working on its own set of

rules (no big surprise here) Illinois . . . . is doing nothing . . . but

something may be afoot.46

E-Discovery is Expensive The cost of pursuing e-

discovery issues is prohibitive for most small offices . . . .

There are changes afoot to make the process more affordable

We need to take advantage of the rules

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Practice Suggestions Use the Federal Rules as a guideline Focus on what you need, not what you

want. Cooperate with the other attorney.

Failure to cooperate will be punished. Find ways to minimize the cost of e-

discovery Protect your client from inadvertent

destruction. 48

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Send Preservation Letters

Preservation Letter• Scope of Discovery Letter asking for

Rule 26 Disclosures• SEE SAMPLE LETTER

Demand production in a usable format• SEE SAMPLE LETTER

Additional Resources:Seventh Circuit Pilot Program:www.discoverypilot.com

Sedona Conference and Glossary:www.thesedonaconference.org/

EDRM: www.edrm.net/

Merrill Knowledge Source:www.merrillcorp.com/merrill-knowledge-source.htm

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For a copy of this Power Point please go to our web site:

www.bellas-wachowski.com/lawyer-attorney-1746778.html

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