UNIVERSITY OF HOUSTON SUMMER III 2010 – 5297 E- DISCOVERY Effective Use of the Meet and Confer

UNIVERSITY OF HOUSTON

SUMMER III 2010 – 5297 E-DISCOVERY

Effective Use of the Meet and Confer

Why is the meet and confer important?

In Re: Seroquel Products Liability Litigation, 2007. (M.D. Fla. July 3, 2007)

Lack of a meaningful meet and confer and purposeful sluggishness leads to failure to comply with numerous discovery obligations and potential sanctions.

Understanding the Meet and Confer

Practical Application of Federal Rule 26(f)

Understanding Meet and Confer Understanding Electronically Stored

Information Understanding Electronic Discovery Tasks Understanding Meet and Confer Tasks Translating Understanding into Execution

Understanding Meet and Confer - Definition

Meet and confer -- a requirement of courts that before certain types of motions and/or petitions will be heard by the judge, the lawyers (and sometimes their clients) must "meet and confer" to try to resolve the matter or at least determine the points of conflict.

Characteristics Defining in Approach Collaborative in Nature Preparation Intensive Binding in Agreement

Key Points Requirement Pre-Motion/Petition Meet to Determine and/Resolve Points of Conflict Objective of Accelerating Judicial Process

The Relevant Rules…

Rule 16

Rule 16(b) - parties must “meet and confer” at least 21 days before the scheduling conference which, in turn, must occur within 120 days of filing a lawsuit.

Rule 16(b) - scheduling order must include “provisions for disclosure or discovery of electronically stored information (ESI).

Rule 26

Rule 26(a) - explicitly defines ESI as discoverable. Rule 26(f) - mandates early meet-and-confer sessions

specifically to resolve e-discovery issues. Rule 26(b)(5) - addresses inadvertent production of

privileged information during e-discovery. Rule 26(b)(2) - provides guidance regarding claims

that ESI is unduly burdensome to produce.

The Relevant Rules…

Rule 34 Rule 34(a) - addresses the scope of ESI to

include information type and location. Rule 34 (b) - addresses and provides guidance

concerning the production of ESI.

Key Rule: Rule 26(f). See p. 23 of your textbook.

Documentation

Form 35 - Report of Parties Planning Meeting

Standardizes discovery agreements. Designed to avoid delays centered around discovery. Provides reminder/documentation of requirement to

address ESI (Rule 26(f)).

From the Southern District of Texas

Documentation

Meet and Confer Checklist Guide

1. Preservation Practices 2. Scope of Discovery 3. Accessibility 4. Production of Metadata 5. Costs & Burdens 6. Forms of Production 7. Privilege Issues & Waiver 8. Variations from FRCP Rules 9. Inventory of Opponent's IT

Infrastructure 10. Other Info that may be Important

to e-discovery

Experts

Why the need for e-discovery experts? Avoids mistakes. Allows for the selection of an e-discovery liaison to

facilitate Meet and Confer coordination and communication.

Allows for the proactive selection and training of Rule 30(b)(6) experts.

Who could be the e-discovery expert/liaison? Attorney (In-House or Outside Counsel) Third Party Consultant Company/Organization Employee

Experts

What makes a good expert e-discovery liaison?

Technical familiarity with party’s electronic systems and capabilities.

Technical understanding of e-discovery. Familiarity with and ability to establish “chain of

custody” for all ESI. Prepared to participate in e-discovery dispute

resolutions and litigation.

Qualcomm v. Broadcom

Factual Summary of Qualcomm

Qualcomm sued its rival Broadcom claiming infringement of two of its key patents.

Broadcom defended by claiming the patents were invalid because they were developed at the time Qualcomm was participating in an international standards setting group called the “Joint Video Team.”

Qualcomm denied participating in this team.


Numerous discovery requests were made for Qualcomm to produce documents related to this defense. Qualcomm repeatedly denied having any such documents, consistent with their position that they never participated.

Qualcomm maintained this position for years, and eventually the case went to trial.


After weeks of trial a Qualcomm witness, Viji Raveendran, admitted on cross examination to having 21 emails related to Qualcomm’s participation in the standards setting team.

Raveendran had told Qualcomm’s lawyers about these 21 emails as part of final preparation for her trial testimony, and Qualcomm’s outside counsel had seen the emails, but decided to hide them, and hope it would not come up on cross.


Apparently, the direct exam questions of this honest witness by Qualcomm’s attorney were carefully designed to avoid asking Raveendran any question that might cause her to reveal the existence of those 21 emails.

Right after this revelation from Raveendran, Broadcom’s attorney complained to the judge. The judge summoned counsel to a sidebar conference.


Qualcomm’s attorneys assured the court that they had looked at these emails, and they were not responsive, and that there was no cover-up as Broadcom was now alleging. The judge accepted these assurances by the prominent and senior trial attorney conducting the case.

Days later the jury found for the defendant.


After trial, at Broadcom’s urging, the judge ordered a complete investigation into whether there had been an email cover-up.

The Court then discovered that there had been a significant cover up, including that sidebar.


Broadcom proved that Qualcomm had not only lied about and hid 21 emails, they had hidden over 46,000 emails with attachments totalling over 200,000 pages of relevant evidence.


Qualcomm was stripped of it patents and ordered to pay $8,568,633.24 in fees to the prevailing defendant, Broadcom.

And what do you think about Qualcomm’s credibility with other courts now? Especially those with similar cases.

And we are not done…


Sanctions motions against Qualcomm and its attorneys followed.

Qualcomm had by now fired their former attorneys, and now they were each blaming the other for the massive fraud on the court.

Six of the many outside counsel representing Qualcomm were then sanctioned by the Magistrate, and referred to the California Bar for further action.

Qualcomm Lessons

Here are the top lessons gleaned from this case regarding electronic discovery:

Communication is critical. Have robust communication channels among organizations and organizational strata. The hot documents were identified by an entry level associate, raised to the partner level and potentially not disclosed to trial counsel.

Qualcomm Lessons

Run down the red flags in real time. The hot docs could have been considered and mitigated had they been searched and vetted by senior attorneys when the standards issue (and welcoming e-mail) turned up in a deposition.

Qualcomm Lessons

Put your best foot (expert) forward. Make sure your "person most knowledgeable" can answer basic questions about their particular subject. In this case, a second "person most knowledgeable" was served up to repeat denials in the face of the hot email discussed in Lesson number two.

Qualcomm Lessons

Understand the ethical obligations in your state. It is difficult to please everyone – senior partners, clients, courts. Make sure you are on the right side of the line. It is difficult to do that unless you know where the line is.

Qualcomm Lessons

Read work done by others first. Before signing pleadings or filings prepared by others, read them. Independently verify that they are true. This does not mean do the work again, but it does mean having a reason to trust, or at the very least no reason to distrust, the contents of the filing.

Qualcomm Lessons

Review your ESI identification protocols. Understand how your client or organization stores this information, and then dig to find out where the ESI is really stored. Qualcomm produced hundreds of thousands of pages of documents after trial, in part, because they missed a server where a key group stored documents.

Qualcomm Lessons

Educate your trial attorneys on the electronic discovery process. They may find themselves (as the outside counsel for Qualcomm did) in front of the bench being asked about particular documents. If your counsel understands and can communicate a coherent process, it will demonstrate good faith, even if there was a glitch in the process.

Qualcomm Lessons

Have a "go-to" person who understands law and technology. This person does not need to be educated on the basics and can get to the heart of an issue quickly. This person, also referred to as a Technology Counsel, can oversee the electronic discovery process, escalate legal and technology issues, and oversee and facilitate collaboration of discovery counsel, IT and trial counsel.

The end result …

April 27, 2009Qualcomm to Pay Broadcom to Settle a Patent Dispute By MATT RICHTELQualcomm has agreed to pay $891 million over four years to

Broadcom, a chief rival, to settle a contentious patent dispute over technology used in the microprocessors that power mobile phones.

Qualcomm has suffered a series of legal setbacks in the dispute. In June 2007, Broadcom prevailed in a jury trial in federal court in California after it claimed that Qualcomm had violated three patents that include methods for transmitting high-speed data over cellphones.

Qualcomm v. Broadcom

PHASE 1 Actions & Decisions

PreservationPreservation CollectionCollection AnalysisAnalysis

1.1. Identify Key PlayersIdentify Key Players

2.2. Publish Lit HoldPublish Lit Hold

3.3. Interview Key PlayersInterview Key Players

4.4. Determine Relevant ESI Determine Relevant ESI Locations with Data MapLocations with Data Map

5.5. Identify Vulnerable ESIIdentify Vulnerable ESI

6.6. Determine Privacy or Determine Privacy or Confidentiality IssuesConfidentiality Issues

7.7. Determine Need for Determine Need for ForensicsForensics

8.8. Notify Opposing Notify Opposing Counsel?Counsel?

1.1. CollectCollect

2.2. Coordinate with Coordinate with CustodiansCustodians

3.3. Maintain Chain Maintain Chain of Custody of Custody RecordsRecords

1.1. Generate ESI Generate ESI Collection Inventory Collection Inventory ReportReport

2.2. Identify File Types of Identify File Types of InterestInterest

3.3. Identify Files where Identify Files where Native is NecessaryNative is Necessary

4.4. Identify non-standard Identify non-standard File TypesFile Types

1.1. Non-IndexableNon-Indexable

2.2. Non-Commercially Non-Commercially usableusable

3.3. Internal ProprietaryInternal Proprietary

Preservation Cost Mgmt Opportunities

PreservationPreservation

1.1. Identify Key PlayersIdentify Key Players

2.2. Publish Lit HoldPublish Lit Hold

3.3. Interview Key PlayersInterview Key Players

4.4. Determine Relevant ESI Determine Relevant ESI Locations with Data MapLocations with Data Map

5.5. Identify Vulnerable ESIIdentify Vulnerable ESI

6.6. Determine Privacy or Determine Privacy or Confidentiality IssuesConfidentiality Issues

7.7. Determine Need for Determine Need for ForensicsForensics

8.8. Notify Opposing Notify Opposing Counsel?Counsel?

Consider tiered KP list with different [less rigorous] search criteria for lower tiers.

Technology tools exist to automate much of this process.

Use of questionnaires in advance of personal interviews

Develop a detailed Data Map internally which can be edited for each matter

If forensic collections are deemed appropriate, consider whether outside collectors are needed.

If you intend to exclude any significant ESI from preservation, consider notifying OSC to limit later

spoliation risk.

Collection Cost Mgmt Opportunities

CollectionCollection

1.1. CollectCollect

2.2. Coordinate with Coordinate with CustodiansCustodians

3.3. Maintain Chain of Maintain Chain of Custody RecordsCustody Records

Consider internal collections. Will

necessitate software, hardware, and people.

Establish protocol for collections from PC’s which is

subject to interruption and can be very time-consuming. Consider whether to do this over the network or locally in

user’s office[s].

Decide if making collection as a means for

preservation is cost-effective.

Perform collections internally with enterprise applications that track

CoC automatically.

Analysis Cost Mgmt Opportunities

AnalysisAnalysis

1.1. Generate ESI Generate ESI Collection Inventory Collection Inventory ReportReport

2.2. Identify File Types of Identify File Types of InterestInterest

3.3. Identify Files where Identify Files where Native is NecessaryNative is Necessary

4.4. Identify non-standard Identify non-standard File TypesFile Types

1.1. Non-IndexableNon-Indexable

2.2. Non-Commercially Non-Commercially usableusable

3.3. Internal ProprietaryInternal Proprietary

Confirm the availability of applications or resources that can generate these reports quickly. These can

be desktop apps, or provided by ED vendors.

Consider using “inclusive” rather than “exclusive” approach. Identify hi-qty file types that can be excluded

[e.g. html]

Quantity of these file types can present significant cost challenges

Non-indexable file types cannot be electronically searched, so special process [e.g. OCR], or costly

human review is necessary

Consider the means to produce these in “reasonably usable” forms.

The E-Discovery Process-Overview

PreservationPreservation CollectionCollection AnalysisAnalysis

DiscoveryDiscovery

PlanPlan

ESIESI

ProcessingProcessing

LegalLegal

ReviewReviewProductionProduction

MeetMeet

&&

ConferConfer

Rule 16Rule 16

SchedulingScheduling

ConferenceConference

PHASE 1PHASE 1

COLLECTIONCOLLECTION

& SCOPE& SCOPE

PHASE 2PHASE 2

PLANNING &PLANNING &

NEGOTIATINGNEGOTIATING

PHASE 3PHASE 3

EXECUTIONEXECUTION

Phase 2 Actions & Decisions

1.1. Identify File Types & Identify File Types & Search CriteriaSearch Criteria

2.2. Develop Plan(s) for Non-Develop Plan(s) for Non-Index-able and other File Index-able and other File Types to be SearchedTypes to be Searched

3.3. Develop Plan for Backup Develop Plan for Backup and other Mediaand other Media

4.4. Establish Burden Establish Burden Arguments for Excluded Arguments for Excluded [NRA] File Types[NRA] File Types

5.5. Identify 30[B]6 Identify 30[B]6 Deponent[s]Deponent[s]

DiscoveryDiscoveryPlanPlan

MeetMeet&&

ConferConfer

Rule 16Rule 16SchedulingSchedulingConferenceConference

1.1. Who Attends?Who Attends?

2.2. Present Proposed Present Proposed Discovery PlanDiscovery Plan

3.3. Negotiate Terms for Negotiate Terms for Search Criteria Search Criteria [Keyword List Sizes, [Keyword List Sizes, etc.]etc.]

4.4. Negotiate Privilege Negotiate Privilege IssuesIssues

5.5. Negotiate Form of Negotiate Form of Production & Timing Production & Timing [Rolling?][Rolling?]

6.6. Negotiate Negotiate Authentication IssuesAuthentication Issues


2.2. Negotiate Negotiate Differences in Differences in Discovery PlanDiscovery Plan

3.3. Present/Defend Present/Defend Burden Arguments Burden Arguments for NRA ESIfor NRA ESI

4.4. Argue Cost-ShiftingArgue Cost-Shifting

5.5. Negotiate ScheduleNegotiate Schedule






6.6. Decide privilege issuesDecide privilege issues


It is essential that a file type listing [both number and size of each file type] is available to do this. Not all ED vendors can generate this information easily.

Parties will usually accept a date range filter [i.e. file creation date]. The range must be negotiated

This can be complex, but is extremely important, as non-indexable files [e.g images] cannot be electronically searched, so expensive

human review is needed. Quantify these file types and if a significant number exist, either argue to eliminate them from further review if possible or propose an alternate, limited, processing scheme [e.g.

sampling, OCR & E-search, narrow date range, etc.].Also address files that should be produced native. & discuss

authentication thereof.

After identifying whatever backup media exists that might contain discoverable ESI, determine if it [largely] exists elsewhere and decide whether it can be argued that it is NRA [Not Reasonably Accessible]. Develop argument to include Undue Cost, Business Disruption, and

Disproportionality. Be prepared to defend the numbers at the Rule 16 hearing, or arrange for ED vendors to do so.

Decide who will be the 30[b]6 witness[es] to testify to collection methods and actions, and to defend burden arguments.

Does a Clawback Agreement make sense ?

MeetMeet&&

ConferConfer







In addition to outside counsel, consider having the E-

Discovery coordinator[s] present, to consult with counsel

on ED issues, and to discuss with opposing party, if so

directed.

Present a detailed, proposed E-Discovery Plan, as

developed in the previous steps. Leave room for

negotiation. Discuss date ranges and file types first, as these are not

normally rigorously contested.For Keywords, agree to a procedure, but not specific

keywords at this time.

Negotiate a “Clawback” if deemed appropriate.

Subject to the court’s likely interest in expediency,

negotiate enough time to deal with the keyword process, and

subsequent review. Try to agree on a rolling production.

Negotiate Authentication methodology for any files to be produced in native

format.







Consider having E-D specialist[s] attend, or at least be available outside the meeting for consultation or testimony, or

at a minimum. by phone.

Be prepared to defend any burden arguments for the exclusion of ESI, even if agreed to by opposing counsel in the meet and confer. Consider having ED vendors present

or on call if deemed appropriate.

Be prepared to present the arguments for areas where agreement could not be reached in the Meet and Confer.

If arguments to exclude NRA ESI are unsuccessful, be prepared to argue for cost-

shifting.

Endeavor to get enough time to execute the Discovery Plan, and be mindful of the keyword process and review time. Try to agree on a rolling production.

PHASE 2 Actions & Decisions







MeetMeet&&

ConferConfer













UNIVERSITY OF HOUSTON

SUMMER III 2010 – 5297 E-DISCOVERY

Effective Use of the Meet and Confer

Documents

UNIVERSITY OF HOUSTON SUMMER III 2010 – 5297 E- DISCOVERY Effective Use of the Meet and Confer