Electronic Discovery and Document Production...E-Discovery or Electronic Discovery is the identification, collection and production of Electronically Stored Information ("ESI")(information

Electronic Discovery and Document Production

July 18, 2016

Pete Cuomo, Of Counsel

Sharon O'Brien, Of Counsel

IP Summer Academy 2016


Boston, Massachusetts

July 11 – 22, 2016


© 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Presentation Topics

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•What is Electronic Discovery and Why is it so Important?

•Unique Characteristics of Electronic Documents

• The Litigation Hold

• The Preservation Challenge

• The Electronic Discovery Vendor

• The Electronic Discovery Plan



July 11 – 22, 2016



Guidance for Conducting E-Discovery

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• Federal Rules of Civil Procedure

• The Sedona Conference

•Growing Body of Case Law

•Practicality in the face of skyrocketing expenses



July 11 – 22, 2016



What is E-Discovery and Why is it so Important?

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What is E-Discovery?

E-Discovery or Electronic Discovery is the identification, collection and production of Electronically Stored

Information ("ESI")(information that is created, modified, stored, and used in digital format) in response to a

request for documents in a civil litigation or government investigation. It also includes searching for relevant

information not only in court-ordered matters, but in internal investigations and pre-litigation activities such as

early case assessment.

Why is it so Important?

Most information these days is electronic and can potentially be sought as evidence in a court of law. The

costs and time associated with discovering and presenting such information, or the inability to present that

evidence can be huge. As the volume of electronic information grows daily the need to have systems and

procedures in place to promptly provide the electronic evidence requested becomes more and more evident.



July 11 – 22, 2016



E-Discovery’s Prevalence: Causes and Concerns

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•Global shift from paper to electronic media

– Information is increasingly maintained in electronic form:

• Widespread use of personal computers results in documents being generated electronically

• Many electronic documents are never reduced to hard copy, e-mail being the prime example

• Printed documents are not necessarily filed in reliance on existence of an “electronic” backup copy

– Ease of creation of electronic documents increases volume of documents and decreases formality of

process documents

•Peculiarities of electronic documents

– Organization of electronic documents can vary widely

– Metadata preserves information that has no paper equivalent



July 11 – 22, 2016



Potential Sources of E-Documents

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• Laptop and desktop computers

•Networks

•Removable media

– Floppies, CDs, DVDs, flash drives

•Back-up tapes or other disaster-recovery media

•BlackBerries, smart phones, PDAs

• Legacy systems

• Employees’ home computers

• Employees’ personal e-mail accounts

– Hotmail, Yahoo!, Gmail, alumni accounts

•Cloud storage (Google Docs, Xdrive, MediaMax)

•Voicemail systems

• Social Media (Facebook, Instagram, Twitter)

•Others

• If you can store information on it, it is discoverable.

• THIS CREATES THE POTENTIAL FOR MASSIVE VOLUME OF DATA!



July 11 – 22, 2016



Federal Rules

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• In 2006, the Federal Rules of Civil Procedure were amended to specifically address electronic

discovery

– Rule 26 (initial disclosures and confer regarding discovery schedule)

– Rule 33(d) (business records in response to interrogatories)

– Rule 34 (document requests)

– Rule 37 (sanctions)

– Rule 45 (subpoena)

• In 2007, they were amended again but the changes were “intended to be stylistic only.”

• In December 2015, revisions to the Rules were implemented

– Focus is on early and active judicial case management, proportionality, and increased cooperation

– Starting to see rulings interpreting the amendments, especially as to redefining the concepts of

proportionality and reasonableness which are laid out in Rules 26 and 37



July 11 – 22, 2016



Metadata – Unique to Electronic Discovery

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•Metadata - embedded data or data about data

•A critical difference between electronic and printed documents

•Critical component of electronically stored documents

•Describes how, when, and by whom an electronic document was created, modified, and

transmitted

• Inadvisable to attempt to manipulate metadata

•Courts tend not to require production of metadata absent good reason

– But see National Day Laborer Organizing Network v. US Immigration and Customs Enforcement Agency,

10 Civ. 3488, S.D.N.Y. (2011) (withdrawn 6/17/2011)



July 11 – 22, 2016



Example of Metadata in Use

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•Plaintiff sues for patent infringement and defendant claims invalidity due to sale of products

more than one year before filing of patent application.

•Plaintiff’s document production includes an order confirmation letter for the product dated

eleven months before the filing of the application.

•Defendant claims that the purchase order is actually older than it appears and was

impermissibly changed before production to avoid the disclosure bar.

•Defendant can then argue for the production of the metadata associated with that

document to confirm or dispel its suspicion.

– Metadata would include the creation date and modification dates of the document



July 11 – 22, 2016



When Litigation is Imminent

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• The “Litigation Hold” letter

– See Pension Committee v. Banc of America Securities, LLC, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y.).

•A critical first step in preservation of data

•Discontinues document retention for certain individuals

•Notification of proper individuals in the company

– Information technology department

– Document custodians

– Potential fact witnesses

• Subsequent reminders are required

•Active monitoring of compliance is required



July 11 – 22, 2016



Duty to Actively Monitor Compliance

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•Counsel has duty to locate, preserve and produce electronic data: “it is not sufficient to notify

all employees of a litigation hold and expect that the party will retain and produce all relevant

information. Counsel must take affirmative steps to monitor compliance so that all sources of

discoverable information are identified and searched.”

– Zubulake V , 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

• Self-collection can result in sanctions if not properly undertaken.

– Green v. Blitz USA, Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011) (sanctions including self-reporting to courts).



July 11 – 22, 2016



Duty to Preserve Evidence

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•At what point in time the duty to preserve evidence arises is viewed differently among

jurisdictions:

– No common law duty to preserve evidence absent a formal notice of intent to file lawsuit

• Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1311 (N.D. Fla. 2002) (citations omitted).

– Duty of care to preserve evidence “if a reasonable person in the defendant’s position should have foreseen

that the evidence was material to a potential civil action.”

• Sallenger v. City of Springfield, 2005 WL 2001502, at *28 (C.D. Ill. Aug. 4, 2005) (citations omitted).

– “[T]he case law imposes a ‘duty to preserve material evidence . . . not only during litigation but also . . .

[during] that period before the litigation when a party reasonably should know that the evidence may be

relevant to anticipated litigation.’”

• Renda Marine, Inc. v. United States, 58 Fed. Cl. 57, 60 (Fed. Cl. 2003) (citations omitted).



July 11 – 22, 2016



Failure to Preserve = Spoliation

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• Spoliation is defined as “the destruction or significant alteration of evidence or the failure to

preserve property for another’s use as evidence in pending or reasonably foreseeable

litigation.”

– Zubulake v. UBS Warburg LLC (Zubulake II), 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (quoting West v. Goodyear

Tire, 167 F.3d 776, 779 (2nd Cir. 1999).

•Routine Deletion Can Become Spoliation: deletion of electronically stored information

becomes spoliation when there is: (a) a duty to preserve the information, (b) a culpable

breach of that duty, and (c) resulting prejudice.

– Rimkus Consulting v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010).

– Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN, 2016 WL

1105297 (S.D. Fla. Mar. 22, 2016) (suspension of document retention policies for e-mails and other company

related data sources have improved, but is lacking when it comes to text messages and other new data

types).



July 11 – 22, 2016



Elements of Spoliation

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•Duty to preserve and maintain

•Ownership or control

• Evidence must be relevant

•Negligent or intentional conduct

•Prejudice to opposing party

•Bad faith not necessary



July 11 – 22, 2016



Potential Sanctions for Spoliation

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•Adverse Inference

•Monetary Sanctions

• Enhanced burden of proof

•Preclusion of Evidence

•Claim Preclusion

•Dismissal / Default



July 11 – 22, 2016



Sanctions Not Automatic

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•Allegedly injured party must often establish multiple elements (example: Adverse Inference)

•Party seeking the sanction of an adverse inference must establish:

1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed;

2) the evidence was destroyed with a culpable state of mind;

3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

•As to the third element, relevance itself requires an analysis of:

– (a) whether the evidence is relevant to the lawsuit,

– (b) whether the evidence would have supported the inference sought, and

– (c) whether the non-destroying party has suffered prejudice from the destruction of the evidence.

Rimkus Consulting, 688 F. Supp. 2d at 615-16.



July 11 – 22, 2016



Preservation Guidelines

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•Memory is cheap – Sanctions are not

•Preserve early

•Preserve widely

•Preserve robustly

•Common Techniques for E-Discovery Preservation

– Custodian Self-Preservation

– Preservation by Collection

– In-place Preservation

•Know the rules of accessible data and make informed decisions

•Circumstances drive what is reasonable

– Conduct must be “proportional to [the] case and consistent with clearly established applicable standards.”

• Rimkus Consulting, 688 F. Supp. 2d at 613



July 11 – 22, 2016



How Accessibility Affects Preservation

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• Initial obligation to preserve or produce is based on accessibility.

•Accessibility is generally based on type of media used

– Active online data (e.g. hard drives)

– Near-line data (e.g. storage devices like disks)

– Off-line storage (e.g. removable disks or magnetic tapes)

– Backup tapes

– Erased, fragmented or damaged data

Zubulake v. UBS Warburg, 217 F.R.D. 309, 318-19 (S.D.N.Y. 2003); W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245

F.R.D. 38, 42 (D.Mass. 2007).



July 11 – 22, 2016



How Accessibility Affects Preservation

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• Even if not reasonably accessible, court can order production for “good cause”

• Factors to determine “good cause”

– Specificity of request

– Quantity of information available from other sources

– Failure to produce relevant information that once existed but no longer does

– Likelihood of finding relevant information not available elsewhere

– Importance and usefulness of data

– Importance of issues to the litigation

– Parties’ resources

Aubuchon, 245 F.R.D. at 42.

• Same factors determine whether cost shifting occurs



July 11 – 22, 2016



The Preservation Challenge

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Scope of Preservation

Scope of Complaint

Scope of Amended Complaint

Scope of Discovery

Scope of Trial

Scope of Discovery

Scope of Trial



July 11 – 22, 2016



The Electronic Discovery Vendor

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•Whether to retain an outside vendor for document production

– Consider the volume of data you will need to review and produce

• High volume cases typically require an outside vendor

– Pros of outside vendors

• Technical expertise

• High volume storage capability

• Secure remote data hosting with Internet access

• Powerful and customizable review tools

• Allow attorneys to focus on legal work

– Cons of outside vendors

• Cost

– Weigh technology cost against attorney time

– Consider in-house resources

• Capabilities of in-house litigation support continue to expand



July 11 – 22, 2016



Electronic Discovery Plan

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•Determine Scope

• Identify and Harvest Data

• Stage and Filter Data

• Translate as Necessary

•Conduct Relevance and Privilege Review

•Produce



July 11 – 22, 2016




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• Step 1 – Establish the Scope of Electronic Discovery

– Understand the claims and defenses presented

– Identify the relevant time periods

– Identify the document custodians and likely key witnesses

– Get to know your client’s documents early

– Determine whether to seek a protective order

– Meet with opposing counsel to formulate a joint electronic discovery plan

• Address practical concerns and strategic concerns

• Limits on discovery (topics and dates)

• Accessibility of data

• Format of production

• Disclosure of what you’re NOT going to process

• Agreements regarding metadata, native files, backup tapes

• Procedure for inadvertent disclosure

• Sneak peek, claw back agreements

– FRE 502 – See http://federalevidence.com/node/176



July 11 – 22, 2016




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• Step 2 – Gather Potentially Responsive Data

– Create a harvesting team including counsel, e-discovery vendors, information technology, legal, and

heads of substantively involved departments.

– Include upper level information technology personnel

– IT or legal may need commitment from higher management

– Work with substantively involved departments to identify documents you need to gather

– Work with IT to map relevant information technology resources

– Work with vendor to plan actual data harvesting

– Gather first and search second versus search first and gather second

– Mind your metadata

– Don’t forget the paper!



July 11 – 22, 2016




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• Step 3 – Prepare Electronic Data for Attorney Review

– Centralize and homogenize different types of data to reside in one system

– Culling mechanisms

• Key words

• Metadata

• Date ranges

• De-duplication

• Analytics



July 11 – 22, 2016




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• Step 4 – Translation Of Documents

– COSTLY BUT NECESSARY

– Triage system

• Identify important issues, events, individuals, etc.

• Translators summarize document in counsel’s native language pulling important information to the top

• Triage Concerns

– Requires expertise in translation

– May require expertise in relevant technology

– Extremely time consuming

– Significant expense

– Summaries are not perfect

• Potential Partial Solutions

– Categorize documents

– Involve client representatives in preliminary triage

– Consider machine translation



July 11 – 22, 2016




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• Step 5 – Review of Electronic Data

– Review of assembled data by attorneys for relevance and privilege determination

– Proper review requires an informed and comprehensive protocol which will necessarily evolve over time

– Attorney must serve as project manager to ensure that review is conducted with all aspects of case

strategy in mind

– Volume and production deadlines requires layered review

– Web-based systems allow secure remote access and direct client involvement

– Technology Assisted Review (TAR) can assist with review

• Clustered review, concept folders, predictive coding

• Applies limited review to entire collection

• Requires statistical validation

– Review still requires attorney input



July 11 – 22, 2016




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• Step 6 – Production of Responsive Data

– Format of production is negotiated with opposing counsel or dictated by the rules.

– Redaction of non-responsive information/highly sensitive information/required by law

– Produced on DVD or hard drive, via FTP

– Your electronic discovery vendor can be very helpful with this step.

– Native production and production with metadata still remain the exception, but the balance is shifting.

– Privileged documents withheld but identified on privilege log



July 11 – 22, 2016



Tips to Minimize Costs and Maximize Efficiency

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•Primary Elements of Electronic Discovery Costs Are Proportionate to Document Volume

– Volume of potentially relevant client data

– Partial translation of documents

– Attorney review time

•Client and Counsel Must Proactively Limit Volume

– Client must employ policies to limit and organize documents

– Experienced counsel will negotiate with adversaries to limit scope of discovery

– Technology can be used to prioritize and streamline review

– Balance cost of technology against savings in attorney time

•Cost-Saving Trends

– Cooperation - Sedona Conference’s Cooperation Proclamation (July 2008)

– Predictive Coding - Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012)


Thank you!

[email protected]

[email protected]

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mailto:[email protected]

mailto:[email protected]