Spotlight On Electronic Discovery: What Every Information Audit .

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Spotlight on Electronic Discovery: What EveryInformation Audit Professional Needs to Know1Electronic Discovery2/2/2011

The Importance of Communication“The single biggest problem in communication is the illusion thatit has taken place.”---George Bernard Shaw2Electronic Discovery2/2/2011

Agenda 3Introduction to Electronic DiscoveryApplicable Electronic Discovery Law Federal Rules of Civil Procedure Duty to Preserve California ApproachThe Electronic Discovery Process Sedona Conference, ABA EDDE and EDRM Best Practices Information Management Data Identification Preservation of Relevant ESI Effective Data Collections Data Processing Techniques Document Review Goals Data Analysis Managing Productions Presentation at TrialLessons LearnedElectronic Discovery2/2/2011

Introduction to Electronic DiscoveryElectronic Discovery, or "e-discovery", is simply the extension of discovery to includedata in electronic format referred to as Electronically Stored Information "ESI". Recent University of California at Berkeley Analysis: 93% of data created in 2003 is digital; Cohasset Survey: today probably 96% Over 70% of electronic data is not printed. Civil litigation: 75% discovery orders require the production of email(Almost) All Discovery is eDiscovery From the smallest of cases the question should not be, “Is eDiscoveryrelevant in my case,” but “How can I better manage my case by usingeDiscovery.”“Paper Discovery” originates online 4Electronic Discovery2/2/2011

Unique Characteristics of ESITechnical 1. ESI can be incomprehensible when separated from the systemsthat created it2. ESI is dynamic, can be shifted just by turning a computer on/off3. ESI is stored in much greater volume than paper documents4. Metadata: “data about the data” Logs when, how and whoengaged the ESISocial People tend to be more informal interacting with a computer.5Electronic Discovery2/2/2011

Federal Rules of Civil ProcedureAmendmentsFRCP was amended by in December 2006 toinclude digital evidenceGoalHow to incorporate ESI to the discovery process.Set standards and avoid piecemeal approach.6Electronic Discovery2/2/2011

Early ESI Planning a. Meet and Confer Conference (Rule 26 (f)) must include Format of production Issues relating to preserving discoverable information Privilege claims Any party negotiated “quick peek” or “claw back” agreements b. Pretrial Scheduling Court Order (Rule 16) c. Depositions (Rule 30 (b)(6)) d. Duty of Early ESI Disclosure (Rule 26 (a))“without awaiting a discovery request” for each claim and defense26(a) initial disclosures must include “category and location of ESI” 7Electronic Discovery2/2/2011

What is ESI?Common ESI Locations Computers hard drives (desktops and laptops)Email systemsPortable devices: Blackberries, cell phones, PDA’s, flash drives, CD-ROM’s etc.Voice Mail and VOIPAll company servers: Shared, Individual, User Specific General CompanyThird party and offsite systemsPreceding company systems such as backup tapesRule 26(b)(2): Accessible v. Inaccessible ESISliding Scale Accessible ESI: Emails/thumb drives. Inaccessible ESI: Damaged/erased/fragmented data. Raise particular objections.Perhaps shift costs. Starbucks Corp. v. ADT Security Servs., Inc., 2009 WL4730798 (W.D. Wash. Apr. 30, 2009)(Don’t exaggerate costs).8Electronic Discovery2/2/2011

Format of ESI ProductionFRCP Rule 34 9 Parties choose the form for production Requesting party can specify the format, but other party can object If form not specified by requesting party, “must” produce in the form “inwhich it is ordinarily maintained” OR “reasonably usable” form. “Reasonably Usable” includes access to metadata. Accessdata Corp. v. ALSTETech. GMBH, 2010 WL 3184777 (D. Utah Jan. 21, 2010) Parties need not produce in more than one form Importance Be proactive to prevent default format Can impact scope/cost of later data processing and review to be conductedElectronic Discovery2/2/2011

Unplanned ESI Disclosure FRCP Rule 26(b)(5) If privileged information inadvertently produced, producing party may notifyreceiving party Receiving party must “promptly return, sequester, or destroy” the specifiedmaterials and cannot use or disclose the materials until claim is resolved Receiving party “may promptly present” the information to the court underseal to test the privilegeFRE 502 Protects against the disclosure of privileged information.10Electronic Discovery2/2/2011

ESI Safe Harbor/SanctionsRule 37: “Sanctions cannot be imposed for loss of ESI resulting fromroutine, good faith operation of an electronic information system” Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am.Secs., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amen. Order) “Zubulake revisited”.(sanctions for lack of litigation hold to preserve ESI)Common Sanctionsa. Monetary: Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20 2004)b. Attorney Fees: Wachtel v. Health Net, Inc., 239 F.R.D. 81 (D.N.J. 2006).c. Evidence Preclusion: United States v. Philip Morris USA Inc., 2004 WL 1627252(D.D.C. July 21, 2004)d. Adverse Inference: Zubulake Ve. Default Judgment: QZO Inc. v. Moyer, 594 S.E.2d 541 (S.C. Ct. App. 2004)f. Code of Ethics: Qualcomm, Inc. v. Broadcom Corp., Case No.5cv1958(BLM)(S.D.Cal.)(January 7, 2008)11Electronic Discovery2/2/2011

A Word on Seminal ZubulakeDuring 2003-2004, United States District Court Judge Shira Scheindlin issued 5groundbreaking opinions in the case of Zubulake v UBS Warburg.Zubulake deals with wide range of electronic discovery issues. Scope of a party's duty to preserve electronic evidence during the course of litigation Attorney duty to monitor client compliance with ESI preservation and production Data sampling Cost shifting The imposition of sanctions for the spoliation (or destruction) of ESI12Electronic Discovery2/2/2011

Duty to Preserve 1. When litigation/investigation is reasonably anticipated Fujitsu v. Fed. Express 247F.3d 423, 436 (2d Cir. 2001) Extent: Testa v. Walmart 2. When a Summons/Complaint are properly received Byrnie v. Town of Cromwell243 F.3d 93, 108 (2d Cir. 2001) 3. When agents know that a lawsuit is a possibility Zubulake v. UBS Warburg, 217F.R.D. 309 (S.D.N.Y. 2003) 4. When counsel anticipates a lawsuit or investigation Capellupo v. FMC Corp., 126F.R.D. 545 (D.Minn. 1989) 5. When receiving a letter that credibly threatens litigation Fujitsu v. Fedl Express247 F.3d 423, 436 (2d Cir. 2001)13Electronic Discovery2/2/2011

What are the States doing? Source: Law Technology News14Electronic Discovery2/2/2011

California ApproachEffective July 2009, the California Electronic Discovery Act amends CCP’s 2016.010 etseq to address ESI. The Act mostly parallels the FRCP and contains an urgency clause. Three Key Ways How California Differs From FRCPA. Scope: FRCP avoids defining ESI. California: "electrical, digital,magnetic, wireless, optical, electromagnetic, or similar capabilities."B. Data Produced Inadvertently: FRCP allows for Claw Back andOpen Peak agreements. California does not; court to makedetermination.C. Inaccessible Data Burden: FRCP- Requesting party seeks leave ofcourt to force the opposing party to produce. CA- Respondingparty requests court order to prevent producing data.15Electronic Discovery2/2/2011

California Approach Cost-shifting and computer backup tapes. Toshiba American ElectronicComponents, Inc. v. Superior Court (Lexar Media), 124 Cal.App.4th 762(2004) A. The FactsDefendant Toshiba withheld from production hundreds of computer backuptapesRestoration costs set between 1.5 and 1.9 millionPlaintiff Lexar would not agree to shoulder any of the restoration costs B. The OutcomePlaintiff Lexar must pay the "reasonable expense" for any "necessarytranslation"Reasonableness and necessity are factual issues found on a case by casebasisC. The Lessons Demanding Parties: Have demands as narrowly tailored as possible.Courts have frequently punished overbroad demands with having to payadditional costsprior havingto provereasonable16 Responding Parties: Organize dataElectronicDiscovery2/2/2011accessiblity

Electronic Discovery Models The Sedona Principles ESI best practices developed attorneys, technical consultants,members of the judiciary and other interested parties. Cited by U.S. courts as authority on most eDiscovery issues. Contains practical glossary of terms related to ESI. American Bar Association eDiscovery and Digital Evidence Committee (EDDE) The EDDE Committee brings together leading eDiscovery thinkers andpractitioners to bridge the gap between technology and law. The Section is viewed as an authoritative voice on eDiscovery andtechnology law. The Electronic Discovery Reference Model Sets industry standards for consumers and providers in order to reduce the cost,time and manual work associated with eDiscovery. EDRM is a conceptual procedural construct; each step need not apply.17Electronic Discovery2/2/2011

Information Management Evaluate Document Storage and Retention for Litigation Readiness.Address:1. Policy for full record cycle: creation, retention andmanagement2. Common Questions: Address Email Deletion,Back Up Tapes & Metadata Companies Slow to Act: (Cohasset Survey, 2007) 18Only 60% have records retention schedules in 2007 that include ESIOnly 56% have a formal plan to respond to discovery requests for their recordsOnly 14% of companies always follow their policy, while 50% generally do so Sloppy policies create added risk and expense for company and employeeElectronic Discovery2/2/2011

Identification Create a Data Map A. Media that may contain ESIB. Custodians connected to the ESI (Creators, Managers, Access)How to create an effective ESI data map 19A. Be ProactiveB. Work With Key PersonnelC. Create a Flexible DocumentD. Focus on Potentially Relevant InformationElectronic Discovery2/2/2011

Preservation Assure that relevant ESI is properly retained. Obligation runs first to counsel, who then has a duty to advise .client itsobligations. Telecom Int’l Ltd. v. AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999) Obligation to preserve runs also to senior corporate officers In re PrudentialIns. Co. of Am. Sales Practices, 169 F.R.D. 598 (D.N.J. 1997)Litigation Hold Notice: Compose a thorough litigation hold notice Notify owners, administrators, users of type and location of data Include acknowledgement of receipt and tracking features Suspend normal document retention policy.Consider Collect to Preserve.20Electronic Discovery2/2/2011

Collection1. List all key custodians2. Note location of custodian data [Accessible, Inaccessible, Forensic, Paper]3. Maintain Chain of Custody21Electronic Discovery2/2/2011

Processing Taking large amounts of ESI & boiling it down to for legal team to present at trial. Find hidden data relationshipsFiles amassed into a central database to allow for large-scale searchesCommon Steps 22Catalog and signature the filesUncompress any compressed filesFlag duplicate filesRemove content and metadataEliminate program and operating system filesEstablish quality control procedure throughoutElectronic Discovery2/2/2011

Review Document Review Goals Determine purpose of review and implement benchmarks Note privileged/responsive documents to be withheld from the opposing parties Capitalize on the productivity of the document reviewers Agreed on search terms and review methods/tools Document Review Platform Considerations Time and cost Culling and filtering options to minimize the data Concept search ability (diamond v. diamond) Capacity to handle various document volumes and formats Data security and integrity Overall project management lead23Electronic Discovery2/2/2011

AnalysisEvaluating ESI to determine total relevant summary information.New important data, people, specificvocabulary and jargon. Performed throughout the remainderof the process as new information isuncovered and issues of the case evolve. 24Electronic Discovery2/2/2011

Production Conveying non-privileged, relevant ESI to opposing parties Formats of Production Paper Quasi-Paper Native Quasi-Native Frequency of Production On going basis OR All in one shot25Electronic Discovery2/2/2011

Presentation Displaying of ESI before an audience. Most common forums are at depositions, hearings and trials Native and near native are the dominant forms. Options to display ESI at trial Proprietary systems: Trial Director, Sanction and Trial Max Outsource to major vendors For smaller cases, can use power point or Adobe26Electronic Discovery2/2/2011

Office Best Practices1. Form interdisciplinary team to proactively address potential discovery issues. Legal, Team IT and Records management personnelOthers professionals as necessary (Compliance, Audit etc.)2. Engage IT department for targeted programs and solutions. Strong focus on litigation readiness, legal hold procedures and response planningDesignation of eDiscovery liaisons3. Investment in the right technology to manage discovery cost and minimize risk. 27Email archiving systems; forensic data collection systemsShared document repositories for serial litigationElectronic Discovery2/2/2011

Top Ten Lessons LearnedIdentify ESI2. Awareness of Applicable Rules3. Proactive Approach Throughout4. Maximize Meet and Confer Conference5. Create an ESI Data Map6. Focus on Potentially Relevant, Accessible Data7. Sources of Custodian Data8. Maintain Chain of Custody9. Carefully Select Document Review Platform10. Protect Client Data1.28Electronic Discovery2/2/2011

eDiscovery ResourceseDiscovery Law:www.ediscoverylaw.com Electronic Discovery Research Model (EDRM):www.edrm.net Findlaw’s Legal Technology Center:www.technology.findlaw.com The Sedona Conference:www.thesedonaconference.org 29Electronic Discovery2/2/2011

Contact UseClaris, Inc.Electronic Discovery Consultants99 Pasadena Ave Building 10South Pasadena, CA 91030www.eclaris.comJacques Nack Ngue, CISATel: 213.784.6921Email: jnn@eclaris.com30Michael Swarz, J.D.Tel: 213.784.0231Email: mswarz@eclaris.comElectronic Discovery2/2/2011

4 Electronic Discovery. 2/2/2011. Introduction to Electronic Discovery Electronic Discovery, or "e -discovery", is simply the extension of discovery to include data in . electronic format. referred to as Electronically Stored Information "ESI". Recent University of California at Berkeley Analysis : 93% of data created in 2003 is digital;

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