National Business Institute Seminar

National Business Institute Seminar
Operate in Compliance with FRCP Rules Changes and Eliminate the Fear Factor Charles Skamser Vice President of Business Development Trial Solutions Cell:

Standard Disclosure We are not giving legal advice

NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice Agenda What’s the Big Deal Rule 16 and 26: Preliminary Conferences Rule 26: Changes for Reasonably Accessible Data Rule 26: Post Production Privilege Assertion Rule 33 and 34: Specification of Form Rule 45: Subpoena Summary Questions and Answers

Best Practices are Now Potential Malpractice What’s the Big Deal? First Real Change to FRCP in 38 Years Purpose was to account for increase in ESI without adding undo burden and/or associated costs Force Corporations to Do More eDiscovery Example of $1B Corporation Average of 556 Cases per Year 50% or 278 Required eDiscovery of Some Type That all changed on December 1, 2006, when Rules 16 and 26 were amended to provide the court early notice of e-discovery issues. Under 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) further states that the scheduling order must include “provisions for disclosure or discovery of electronically stored information”, while Rule 26(f) requires that parties “discuss any issues relating to preserving discoverable information and to develop a proposed discovery plan.”

Best Practices are Now Potential Malpractice What’s the Big Deal? Corporations can no longer leave e-discovery for later in the process. Thanks to the FRCP rule changes, they must now define and share their e-discovery plans at the “meet and confer” which occurs within the first 99 days of a case. Corporations are now obligated to do e-discovery on all 556 Cases.

Best Practices are Now Potential Malpractice LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late October One year later – 44%of corporate counsel report companies being unprepared for onset of revised federal rules for e-discovery 20% of corporate counsel were unaware of whether or not their company was prepared for the amendments to the federal rules prior to implementation. Top Challenges Communicating with IT departments (27% ) Finding budget to put systems and tools into place (25%) Getting buy-in from upper management on the importance of litigation preparedness (21%) Finding e-discovery staff with a good mix of IT and legal expertise (9 %)

Best Practices are Now Potential Malpractice LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late October Misperceptions of the Rules The survey also suggests that confusion still exists regarding certain elements of the new rules. For example, 70% of corporate counsel attorneys believe that the rules require them to produce documents in their “native file” format. This is an incorrect assumption, and it is up sharply (up 27 %) from last year’s response to the same question. Impact on Workload and Cost While provisions of the new federal rules require early engagement by parties – particularly to discuss, agree upon and execute e-discovery, 76% of corporate counsel attorneys report that the new rules have not helped trim costs nor reduce the scope of discovery work for their companies. In fact, survey findings show that the new FRCP have created an increase in discovery workload for corporate America in most cases. For example, 73 % of survey respondents said that their company has seen an increase of up to 20 %in discovery workload as a result of the new rules since their implementation last year.

Best Practices are Now Potential Malpractice LexisNexis Survey Results: The Association of Corporate Counsel 2007 Annual Meeting in late October Positive Steps Taken Despite challenges and misconceptions, many corporations appear to be taking the fundamental steps necessary to ensure their companies are compliant with the new rules. For example, 82%of respondents said their company has a document retention policy, two-thirds said they have implemented a formal legal holds process and more than 40 % said they have conducted employee training for compliance this year. Further, a quarter said they have hired an e-discovery counsel or ESI coordinator. Additionally, just over half of respondents said they have taken more elements of the discovery process “in-house” as a way to control costs and management of the discovery process.

Best Practices are Now Potential Malpractice Thus far, approximately 105 e-discovery opinions were reported since December 1, The major issues involved in these cases break down as follows: 25% of cases addressed discovery requests and motions to compel 24% of cases addressed spoliation/sanction 23% of cases addressed issues involving the form of production 9% of cases addressed preservation/litigation holds 7% of cases addressed attorney-client privilege and waiver 6% of cases addressed production fees 6% of cases addressed admissibility of electronic evidence

Best Practices are Now Potential Malpractice The Significant Cases Court Orders Defendant to Preserve and Produce Server Log Data Stored in RAM Columbia Pictures Industries v. Justin Bunnell , No FMC (JCx) (C.D.Cal. May 29, 2007), aff’d WL (C.D.Cal. Aug. 24, 2007). In a suit alleging copyright infringement, the plaintiff sought preservation and production of user IP addresses along with dates and times of user requests. The defendant argued that this data was temporarily stored in random access memory (RAM) and did not constitute electronically stored information (ESI.) The court held RAM data constituted ESI and was discoverable. Magistrate Finds Exhibits Inadmissible and Outlines Standards for Electronic Evidence Admissibility Lorraine v. Markel Am. Ins. Co. , 2007 WL (D. Md. May 4, 2007). Plaintiffs brought suit to enforce an arbitrator’s award. The judge dismissed both parties’ dispositive motions without prejudice to allow resubmission with evidentiary support. The court held there is a five-point test in determining the admissibility of electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the “best evidence”, and 5) not unduly prejudicial. The court stated, “it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try.”

Best Practices are Now Potential Malpractice The Significant Cases Court Orders Search and Production at Producing Party’s Own Cost Peskoff v. Faber, 2007 WL , (D.D.C. Feb. 28, 2007). In a suit alleging fraud, breach of fiduciary duty, breach of contract, and conversion inter alia, the plaintiff argued that a previous electronic document production contained unexplained time gaps, suggesting problems with the original production. As a result, the plaintiff moved to compel discovery of additional . The court found in favor of the plaintiff, holding that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible. Court Considers Sanctioning Attorneys for Discovery Abuses Qualcomm, Inc. v. Broadcom Corp., 2007 WL (S.D.Cal Sept. 28, 2007). During one of the last days of a patent infringement trial, cross-examination of the plaintiff's witness revealed the existence of relevant s that the court later held were "the tip of the iceberg" in an attempt to conceal over 200,000 pages of relevant s. The judge characterized the discovery abuses as, "an organized program of litigation misconduct" and ordered the plaintiff's attorneys to demonstrate why they should not be sanctioned, without use of documents protected by the attorney-client privilege.

Best Practices are Now Potential Malpractice The Significant Cases Court Denies Motion to Compel Deleted Stored on Backup Tapes Oxford House, Inc. v. City of Topeka , 2007 WL (D. Kan. Apr. 27, 2007). The plaintiff brought suit alleging that the defendant improperly denied several conditional housing permits. In responding to the plaintiff’s motion to compel, the court determined there was no obligation to preserve overwritten s before the likelihood of litigation. Moreover, the court used a cost-benefit balancing test to find that the production of the requested ESI would be unduly burdensome given the cost and likelihood of retrieval

Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules Rule 16 and 26: Pretrial Conferences In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as expediting the disposition of the action; establishing early and continuing control so that the case will not be protracted because of lack of management; discouraging wasteful pretrial activities; improving the quality of the trial through more thorough preparation, and; facilitating the settlement of the case.

PRELIMINARY CONFERNCESS
Changes in the FRFCP Rule 26(f) The new Rule 26(f) requires parties to meet early in the litigation process and confer about discoverable ESI and issues related to it. During this initial meeting, parties will discuss the discovery plan, which includes the following: What ESI will be relied on by the litigants How each party stores its ESI In what form the information will be produced The accessibility of the information Issues related to privileged ESI

PRELIMINARY CONFERNCESS
Changes in the FRFCP Rule 26(f) Commentary The necessity for proficient ESI management becomes evident at this initial meeting. Attorneys for the litigants are responsible for knowing the details of their clients' information systems and retention policies. They will also need to know the ESI that their clients will rely on for claims or defenses and whether that ESI is accessible or potentially contains privileged information. Classifying information as "litigation sensitive" or "privileged" and indexing it for search and retrieval are information management steps that will help in this phase of litigation. Knowing where information is stored and processed not only will assist in keeping costs down but also will offer an advantage by providing some certainty when responding to the initial questions posed pursuant to Rule 26(f). The agreement made by the parties under Rule 26(f) will be adopted in a court order following a Rule 16(b) pretrial conference. Therefore, it is important to be able to answer these preliminary questions with some certainty.

Changes in FRCP Rules Rule 16 and 26: Scheduling and Planning Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time to join other parties and to amend the pleadings; to file motions; and to complete discovery.

Changes in FRCP Rules Rule 16 and 26: Scheduling and Planning The scheduling order may also include modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted; provisions for disclosure or discovery of electronically stored information; any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production; the date or dates for conferences before trial, a final pretrial conference, and trial; and Any other matters appropriate in the circumstances of the case. The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

Changes in FRCP Rules Rule 16: Subjects for Consideration At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to (1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence; (4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence;

Changes in FRCP Rules Rule 16 and 26: Subjects for Consideration At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to (5) the appropriateness and timing of summary adjudication under Rule 56; (6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through 37; (7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial; (8) the advisability of referring matters to a magistrate judge or master;

Changes in FRCP Rules Rule 16: Subjects for Consideration At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to (9) settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule; (10) the form and substance of the pretrial order; (11) the disposition of pending motions; (12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;

Changes in FRCP Rules Rule 16: Subjects for Consideration At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to (14) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (15) an order establishing a reasonable limit on the time allowed for presenting evidence; and (16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representatives be present or reasonably available by telephone in order to consider possible settlement of the dispute.

Changes in FRCP Rules Rule 16: Final Pre-Trial Conference Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. Rule 16: Pre-Trial Orders After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.

Changes in FRCP Rules Rule 16: Sanctions If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

Rule 26: Reasonably Accessible Data
Changes in FRCP Rules Rule 26(a): Provisions Governing Discovery; Duty of Disclosure Party Must Provide Description by Category and Location of All Documents, ESI, and Tangible Things In Their Control and Which They May Use to Support Their Case Rule 26(b)(2)(B): Discovery Scope and Limits Party Need Not Provide ESI From Sources That Party Identifies as “Not Reasonably Accessible” Because of Undue Burden & Cost (Good Cause Exception) Rule 26(b)(2)(C): Limitations on Discovery If Discovery Sought is Unreasonably Duplicative or Cumulative or Obtainable From More Convenient, Less Burdensome Source If Party Seeking Discovery Has Had Ample Opportunity to Obtain Information Sought If Burden or Expense of Proposed Discovery Outweighs The Likely Benefit, Taking Into Account Needs of Case, Amount in Controversy, Parties Resources, Importance of the Issues at Stake and Importance of Proposed Discovery In Resolving Issues

Changes in FRCP Rules Rules 26: Information Technology Perspective Periodic reassessment / reevaluation of requirements & selection criteria used (Criteria needs to be well defined- include both & IM). Senior Executive understanding and buy in is critical. Procedures to address changes in criteria, test & implement. Effort needs to be coordinated between Legal, IT, Audit. Backups –retention guidelines need to be explicitly spelled out in writing; Storage and space issues need to be addressed. Include requirements in new employee awareness training & notification to all employees Periodic testing Auto back up without employee intervention – key word scan. Centralization – Do you want to utilize technology to centrally archive, index, and make the searchable, accessed easily, and integrate with existing backup system?

Changes in FRCP Rules Rules 26: Subjects for Consideration What is Hard to Access Today May be Easy Tomorrow What is Easy to Access Today May be Hard Tomorrow Courts May Require NRA Log Similar to Privilege Log: Problem Is You Know Content of Privileged Data; You Do Not Know Content of NRA, Only Source or Type of Data Distinguish Between “Reasonably Foreseeable as Relevant” and “Reasonably Foreseeable as Discoverable” Courts Have Ability to Shift Costs for NRA Requesting Party May Offer to Share or Pay Costs: This is Not Deciding Factor – Also Have to Consider Responding Party’s Costs and Burden in Reviewing Info for Relevance & Privilege

Rule 26: Post Production Privilege
Changes in FRCP Rules Rule 26(b)(5): Post Production Privilege New Amendments define a procedure for resolving claims of privilege a party makes to a communication that, during discovery, it has inadvertently disclosed to another party. Prior to the December 2006 Amendments to the FRCP, the previous sole guideline for lawyers receiving inadvertently disclosed communications in a federal case was the requirement of Model Rule 4 (As amended from Formal Opinions and ) to notify the sender of the disclosure. With no restriction on the information's use, lawyers were free to use the contents of the communication, even if privilege had not been waived. The resulting loophole in privilege rules opened the door for bizarre results.

Changes in FRCP Rules Rule 26(b)(5): Post Production Privilege If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. Under this rule, a receiving party must stop all use of inadvertently disclosed information subject to a claim of privilege once the producing party provides notice of such a claim. Rule 26(b)(5)(B) thus, on its face, represents a middle ground between the strict protections of Formal Opinions and and the freedom of use condoned by Model Rule 4.

Changes in FRCP Rules Rule 26(b)(5): Post Production Privilege Ethics aside, the plain language of the rule places the initial burden on the producing party, not the receiving party. Therefore, the recipient has no obligation to act until informed of the producing party's claim to privilege. Once the producing party has made its claim, however, the burden on the receiving party is much like those of the withdrawn Formal Opinions. The receiving party must immediately stop all examination of the documents, then must return them, destroy them, or submit them to the court under seal. Here the rule anticipates, perhaps for purposes of saving time, what the instructions of the sending lawyer might have been under the Formal Opinions. Finally, as suggested in Formal Opinion , the receiving party may request a determination of the privilege claim from the court.

Rule 33 and 34: Specification of Form
Changes in FRCP Rules Rule 33(d): Interrogatories to Parties Rule 33(d) is amended to specify that electronically stored information may qualify as appropriate business records from which an answer to an interrogatory may be derived or ascertained. Rule 34(b): Form Rule 34 (b) is amended to permit the requesting party to designate the form or forms in which it wants electronically stored information (ESI) produced. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information (ESI). Using current technology, for example, a party might be called upon to produce: Word processing documents (MS Word, Word Perfect) messages (Outlook, Lotus, Hotmail, Gmail) Electronic spreadsheets (Excel) Different image or sound files (i.e. very long list) Material from databases (Oracle, SQLServer, MSAccess, Lotus)

Changes in FRCP Rules Rule 34(b): Form If Requesting Party Does Not Identify “Form,” Party Must Produce ESI In Form In Which It Is Ordinarily Maintained Or Form That Is Reasonably Usable, But May Not Produce ESI In Form Less Useful Or Searchable Than Form In Which It Is Normally Maintained. Subjects for Consideration How Will Paper Documents Be Produced? In spite of the fact that electronic documents have taken the front seat in discovery, paper documents still exist and must be considered during the production process. Ultimately paper and electronic documents will be used in the same manner throughout the post-production discovery process and they should be produced and integrated in a way that will facilitate their use. Some questions to be answered might include: Will you want hard copies or images produced to you? Images can be loaded directly into a database without the issue of receiving, storing and imaging large amounts of paper. Will the producing parties be scanning and OCRing (Optical Character Recognition) the paper document productions? If so, reaching an agreement that each party will produce images and OCR text for their production and that the parties will share in the costs may be an option that will save all parties time and money.

Changes in FRCP Rules Subjects for Consideration What Types Of Electronic Documents Make Up The Data Set? There may be word processing files, spreadsheets, , databases, drawings, photographs, data from proprietary applications, website data, voice mail, and much more. To understand what data should be produced in light of the issues specific to the subject case, it is necessary to understand what information is available in the different software applications (or types of documents). Such preparation mitigates the risk of discovering too late that the agreed upon production format is inadequate to provide the discovery needed to address and understand the issues in the lawsuit.

Changes in FRCP Rules Subjects for Consideration What Formats For The Production Documents Provide Access To The Data Necessary To Best Address Issues In The Case? To be sure the necessary data and information is produced in order to allow thorough analysis of the discovery documents, it is critical to understand how different types of documents are impacted by different processing and production format option For example, formulas are not viewable when spreadsheets are converted to image; blind copyees and the date read are not available when s are converted to image. The determination of whether or not that type of information is necessary should be made early in the discovery process. Considering in advance what options are available and determining the most useful production format for each data type is essential for negotiating production options.

Changes in FRCP Rules Subjects for Consideration What Types of Media Should Be Used To Produce And Receive Production Documents? There is a wide variety of media on which data can be stored and delivered. These might include CDs, DVDs, portable (external) hard drives, or flash drives. The choice of media can significantly impact the amount of time and expense that will be involved in analyzing and processing the data. It is possible that a particular type of hardware will be necessary in order to access and process the data. For example, a hard drive can hold a significant amount of data but will require a certain level of expertise and specific hardware to handle properly. On the other hand, CDs are universally accessible but do not hold much data. If a large amount of data is being produced, it may be better to receive the data on a hard drive and invest in the expertise and hardware necessary to handle that medium than to spend the time handling tens or hundreds of CDs individually.

Rule 45: Subpoena Rule 45 (d): Subpoena
Changes in FRCP Rules Rule 45 (d): Subpoena (1)(A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (1)(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable. (1)(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form. (1)(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Summary Rule 16 and 26: Preliminary Conferences
Changes to FRCP Rule 16 and 26: Preliminary Conferences Establishes Guidelines to Meet and Discuss How to Handle ESI Rule 26: Changes for Reasonably Accessible Data Establishes Guidelines to What Data Has to be Accessible / Produced Rule 26: Post Production Privilege Assertion Establishes Guidelines for What is Considered Privileged Rule 33 and 34: Specification of Form Establishes Guidelines for the Form in which ESI has to be produced Rule 45: Subpoena Establishes Guidelines for Subpoena of ESI

Changes to FRCP

Questions and Answers Changes to FRCP

RECENT DECISIONS IN E-DISCOVERY
Required Form of Production What Is Easily Accessible Data Versus Inaccessible Data Privilege Issues Imposition of Sanctions

PRESERVING DATA Backup Tapes Collection Chain of Custody
Desktops and Laptops Servers Portable Phones and Digital Assistants Other Media

ENSURING E-DISCOVERY COMPLIANCE
Agenda Preservation Notices Meet and Confer How to and What to Ask for in Production Requests Protective Orders How to Structure Protocols Using Experts, Neutrals and Special Masters Summary Questions and Answers

Nothing in the December 2006 amendments to the FRCP changed the familiar common-law and statutory duties to preserve data. What the amendments did do is highlight the challenges faced in meeting those obligations when it comes to electronically stored information (“ESI”). During the next hour, we will present and discuss the relationship between data preservation and data collection and how to avoid doing the right things the wrong way or perhaps failing to do them altogether.

THE FIRST 99 DAYS Ensuring e-Discovery Compliance
Review Document Retention Policy Notify Data Custodians Collect data from all sources Determine case strategy Issue Litigation Hold Notices Cull – move irrelevant data Finalize – custodians, search terms, dates Interview Custodians Analyze – custodians, search terms, dates Determine final timeline and costs Determine scope and cost to Identify and Preserve Advanced Analysis Define redactions and refine duplication procedures Determine scope and cost to collect Determine scope and cost to process and/or review Document procedures Document procedures Document Discovery Plan – Form 35 Day 1 Day 99 Phase 1 - Notification Phase 2 –Early Case Analysis Phase 3 – Prep for Meet & Confer

PRESERVATION NOTICES The Preservation Letter / Notice
Ensuring E-Discovery Compliance The Preservation Letter / Notice It is becoming commonplace for a party who seeks information in a dispute to issue a preservation letter to the adverse party that it will eventually be seeking information from. Many larger entities receive letters such as these on a regular basis. It is the position of this body that these letters should be viewed as an opening offer in a negotiation process that will ideally lead to a mutually agreed upon case management order that a judge or other authority will endorse. Both sides can benefit from early, upfront discussions regarding the scope of preservation.

PRESERVATION NOTICES The Importance of a Realistic Preservation Notice
Ensuring E-Discovery Compliance The Importance of a Realistic Preservation Notice When requesting that the other side preserve certain electronic data, it is vitally important that the request be tailored to cover only the documents that are important or relevant to one's case. If an extremely overbroad preservation letter is sent, it is possible that the judge or other authority presiding over the case will see this as a bad faith litigation tactic and not as a good faith offer to negotiate. In this case, it is possible to forfeit a favorable negotiation position. When responding to a preservation letter, it is important to avoid some common mistakes. For example, ignoring a preservation letter is not a particularly good idea, nor is sending off a retaliatory letter meant to inflame the situation. Consider sending back a "counter offer" outlining what preservation steps will be taken, and detailing the costs involved with full compliance as well, perhaps suggesting an in person "meet and confer." Most importantly, this should be viewed as a negotiation process.

PRESERVATION NOTICES Challenging a Preservation Notice
Ensuring E-Discovery Compliance Challenging a Preservation Notice Because the duty to preserve is rather amorphous and perhaps meant to be over-inclusive as a matter of public policy, it is important to carefully weigh the decision to contest a preservation letter if an agreement cannot be reached. There are many costs, some apparent and some not, in a long and drawn out mini-trial regarding the specifics of preservation. However, it has been suggested by some authorities in the e-discovery arena that a genuine dispute over the scope of preservation prior to the filing of a complaint might be an appropriate subject for a declaratory judgment action.

PRESERVATION NOTICES The Litigation Hold Notice
Ensuring E-Discovery Compliance The Litigation Hold Notice In a typical scenario, receipt of a complaint is followed by the issuance of a litigation hold notice to employees and relevant third parties. A monitoring protocol is put in place a la′ Zubulake V. (See Zubulake v. UBS Warburg LLC , 229 F.R.D. 422 (S.D.N.Y. July 20, 2004) Consequently, data custodians will be alerted to the need to retain potentially relevant ESI and ensure it is not destroyed, deleted or altered. Corporate IT is hopefully reviewing routine computer operations to determine whether any settings need to be changed or policies altered to prevent the loss of data. (See FRCP 37). Counsel is busy preparing initial disclosures and making decisions regarding data accessibility. (See FRCP 26(a)(1)(B) and 26(b)(2)(B)). A team is dispatched to interview key custodians to determine where to find the ESI that is relevant to the litigation. Custodians are reminded to preserve potentially relevant ESI, wherever it resides; workstation, laptop or on the thumb drive casually lying on their desk. They are provided with a contact name in the event they recall an additional data source later. Depending on the scope of the litigation, all or some of these steps were taken in a short time frame in preparation for the FRCP 26(f) meet and confer during which counsel will be obliged to discuss the electronic discovery issues that impact the litigation. What next?

MEET AND CONFER Ensuring E-Discovery Compliance With the new Federal Rules of Civil Procedure (FRCP) now in place, the meet and confer conference is more critical than ever. The changes to Rule 26(f) confirm that when ESI is involved in civil litigation, parties cannot over-plan or over-communicate. This article will explain the various information gathering questions and issues that counsel should discuss during the pre-trial stages of a case in order to ensure a textbook handling of e-discovery matters.

MEET AND CONFER What do you need to discuss with your opponent?
Ensuring E-Discovery Compliance What do you need to discuss with your opponent? As the Committee Notes to Rule 26(f) succinctly state, the purpose of the amendment to Rule 26(f) is to "direct the parties to discuss discovery of electronically stored information during their discovery-planning conference." This "early case assessment" rule establishes a timeframe for discussing electronically stored information (ESI) issues early on in the case. However, the specific provisions of Rule 26(f) do not dictate a precise formula for electronic discovery planning. Rather, the Rule directs the parties to meet as soon as practicable (but no later than 21 days before a scheduling conference) to develop a plan that addresses essentially any and all foreseeable discovery issues. When you sit down face to face with your counterpart on the other side, what topics will you discuss? To what level of detail will you delve? How long will the discussion last? The FRCP provisions are silent when it comes to the specifics, so it is up to the litigation teams to collaboratively design their own discovery framework.

MEET AND CONFER What do you need to discuss with your opponent?
Ensuring E-Discovery Compliance What do you need to discuss with your opponent? At a minimum, attorneys should use the Rule 26 conference as an opportunity to: Clarify expectations regarding document preservation, search strategies, collection, keyword lists, processing, and cost-allocation. Establish which sources of data they expect to receive from their opponent, and the format in which they expect to receive it. Discuss how both sides will handle privileged documents. Raise issues pertaining to volume, cost, time, and other factors affecting the accessibility and burden of producing the data in their client's possession or control. Besides seeking to develop a discovery plan, proficient litigators will take a strategic approach to these seemingly innocuous meetings. Counsel should take this time to learn the opponent's perspective on e-discovery and exactly how savvy they are when it comes to the issues surrounding electronically stored information.

MEET AND CONFER Attorney Check List for Meet and Confer
Ensuring E-Discovery Compliance Attorney Check List for Meet and Confer Preservation Practices What is being done to preserve ESI? Is a protective order necessary? Scope of Discovery Will there be any deviations from the default initial disclosures specified in Rule 26(a)? What file types and time range is the opposing party seeking? Who are the main data custodians the opposing party is interested in? What will be the timing for exchanging discoverable ESI? Accessibility What type of data is the opposing party interested in? Backup tapes? Hard drives? Servers? Removable media? Deleted data? How easy will it be to access this data? Will the use of an e-evidence expert be necessary? Production of Metadata What fields will be exchanged for the various file formats? Costs & Burdens Who will bear the costs associated with gathering, restoring, and producing the ESI?

MEET AND CONFER Attorney Check List for Meet and Confer
Ensuring E-Discovery Compliance Attorney Check List for Meet and Confer Forms of Production In what format or formats will parties produce the ESI be? Privilege Issues & Waiver How will parties handle inadvertently produced privileged documents? Variations from FRCP rules Are there any local rules that apply in the jurisdiction? Inventory of opponent's IT infrastructure Which operating systems and software packages were used to develop key data? Are those systems still in use? What are the opponent's document retention policies? Are they being enforced? Other Is there any other information that may be important to the e-discovery activity in the case?

MEET AND CONFER What is the judge's role?
Ensuring E-Discovery Compliance What is the judge's role? Just as Rule 26(f) was amended to require the parties to discuss early electronic discovery issues at the outset of litigation, Rule 16(b) was amended to call for the results of such discussions to be reported to the judge. Specifically, the rule states that: "...the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time ... (5) provisions for disclosure or discovery of electronically stored information...“ Practitioners should use the Rule 16(b) scheduling conference as an opportunity to ensure the court understands the potential technological issues involved in collecting, reviewing, processing and producing any electronic data requested by the opposing party. The purpose of this rule, according to the Committee Note, is "to alert the court to the possible need to address the handling of discovery of electronically stored information early in the litigation if such discovery is expected to occur."

MEET AND CONFER Use Meet and Confer to Your Advantage
Ensuring E-Discovery Compliance Use Meet and Confer to Your Advantage By directing counsel and the court to address electronic discovery matters early on, parties have the opportunity to advocate through education, thereby gaining credibility with the court and providing an opportunity for counsel to begin steering electronic discovery decisions in their clients' favor. To that end, counsel may use the Rule 16(b) scheduling conference to, at least preliminarily, flag concerns regarding any unresolved issues including accessibility, production format, production of specific metadata fields and handling of inadvertently produced privilege and trial-preparation protected information. Moreover, the conference gives counsel an opportunity to raise concerns about their opponent's preservation protocols. Lastly, counsel should come prepared with a potential timeline for discovery, including realistic timeframes for completing the collection, review, and production of the electronic data. As with the Rule 26(f) conference, counsel should not hesitate to enlist the help of an e-evidence expert with the background and training to effectively articulate the issues.

PRODUCTION REQUESTS Ensuring E-Discovery Compliance
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes In General A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

PRODUCTION REQUESTS Ensuring E-Discovery Compliance Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Procedure (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced.

PRODUCTION REQUESTS Ensuring E-Discovery Compliance Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Procedure (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.

PRODUCTION REQUESTS Ensuring E-Discovery Compliance Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes Procedure (2) Responses and Objections. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. Non Parties As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

PRODUCTION REQUESTS Checklist of Action Items
Ensuring E-Discovery Compliance Checklist of Action Items Map your Information Technology Infrastructure Develop a Data Inventory Prepare a Litigation Response Plan Modify Retention Policies Consider Technology Options Inventory your Litigation Portfolio Enforce your Retention Policy Train your workforce

PROTECTIVE ORDERS Ensuring E-Discovery Compliance A protective order may be sought by any person against whom discovery is sought, party or nonparty. Burden is on person seeking protective order to show that it is necessary "to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. Types of protective orders available: "That discovery not be had." (Rule 26(c)(1).) "That the discovery may be had only on specified terms & conditions, including a designation of the time or place." (Rule 26(c)(2).) "That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters." (Rule 26(c)(4).) "That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way." (Rule 26(c)(7).)

PROTECTIVE ORDERS Ensuring E-Discovery Compliance The Zyprexa Injunction FSupp2d, No. 07-CV-0504, 2007 WL (EDNY Feb. 13, 2007) demonstrates that a protective order does not guarantee that sensitive documents will not be disclosed improperly. And once documents are disclosed, there may be enforcement and free speech implications that prevent an injunction from being issued to enjoin any further dissemination. Corporate litigants therefore should: Be warned that sensitive documents may not be fully protected from disclosure by a protective order. Be advised that the process of producing documents in a litigation is anything but routine. Document productions should be accorded heightened attention and litigants must determine at an early stage how sensitive the documents are and what the consequences of their disclosure would be. Be vigilant from the outset and have a plan to protect documents from improper disclosure. Provide the court with concrete ideas to prevent dissemination of documents while simultaneously affording the adversary reasonable access to the documents.

PROTECTIVE ORDERS Corporate litigants therefore should:
Ensuring E-Discovery Compliance Corporate litigants therefore should: Insist on as much protection as possible from the court to protect the confidentiality of documents. Size-up their adversaries, including opposing counsel, experts and consultants to determine if there is a greater risk of disclosure. This requires an added level of due diligence as litigants must closely examine the background of everyone who will have access to the documents. Ask the pertinent questions: Does plaintiffs counsel have a track record for trying his case in the press? Has opposing counsel or any of their consultants or experts ever been sanctioned for violating protective orders? Does the expert or consultant have a track record of communicating with the media? Ask around. This type of due diligence may provide the litigant with a basis for seeking added protection from the court. Critically assess the level of interest in the community, and among public interest groups and reporters. This will provide a sense of the environment surrounding the issues in the case and help to assess the risk of improper disclosure. Explore methods to electronically protect documents from improper disclosure. This includes consulting with an electronic discovery vendor to determine the most secure way to produce documents. The vendor may be able to use software to withhold certain privileges, such as the ability to print, copy, or forward a given document. In the end, however, no technology can guarantee that documents will not be improperly disclosed. Where there's a will, there's a way, and one determined to distribute documents will likely find a way to do so

PROTECTIVE ORDERS Courts should: Ensuring E-Discovery Compliance
Give serious thought to the content of protective orders and spell out the consequences of violating the order. Be willing to impose rigorous requirements to protect documents. Courts should be creative in this regard and consider suggestions from both sides of the case. Admonish litigants at the outset that there will be severe consequences for any deliberate violation of a protective order. Limit access to documents to as few individuals as is absolutely necessary and require that each party explicitly identify who will have access to the documents. Hold attorneys accountable for the actions of their experts and consultants through discovery sanctions. Such accountability would deter attorneys from turning a blind eye to experts or consultants who they suspect may disclose confidential documents. It would also discourage lawyers from using experts or consultants to disseminate documents to the media or on the internet to garner publicity for the case and to put pressure on the opposing litigants to settle -- a phenomenon that has been known to occur in large commercial litigation. Impose harsh sanctions on persons that deliberately violate protective orders.

HOW TO STRUCTURE ORDERS
Ensuring E-Discovery Compliance

EXPERTS, NEUTRALS AND SPECIAL MASTERS
Ensuring E-Discovery Compliance Experts When an expert is an eyewitness to material events in a case, or a party to an action, as opposed to being hired in anticipation of litigation, no work-product protection exists. E.g., a doctor who provides emergency treatment to an accident victim may be deposed as to the condition of the patient. Experts hired to assist in preparation for trial are treated differently depending on whether they will be called to testify at trial. (1) A party may learn by interrogatories the names of the experts his opponent expects to call, the subject matter on which the expert is expected to testify, and the substance of the facts and opinions to which the expert will testify. (2) Facts or opinions may be obtained from an expert who has been retained in anticipation of litigation but who is not expected to testify only "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." (Friedenthal § 7.6; Wright § 81) In addition to testifying and non testifying experts, courts have also identified a third category, informally consulted but not retained. Neither the opinions or identity of an informally consulted but unretained expert are discoverable without a showing of special circumstances. This is akin to a work-product type privilege.

Ensuring E-Discovery Compliance Expert Checklist Get them the pleadings Define the scope of their effort ASAP to limit costs Involve them in drafting pleadings, sitting in on relevant depositions Give them adequate notice of deadlines and court dates Don’t write their opinions Accept “the truth” as they report it Respond promptly to their messages/queries Do not discuss substantive matters via Don’t write a “draft” report until discussed by phone

Ensuring E-Discovery Compliance When you Hold the Smoking Gun Don’t forget to designate your expert Don’t forget to lay a foundation for Testimony Establish chain of custody Get your expert’s credentials in somehow, even if other side stipulates to expertise Use familiar analogies and images When the Smoking Gun is Pointed at You Muddy the waters (only ethically!) Challenge the expert’s credentials? Challenge the acquisition or analysis? Remember that analysis is interpreted Who else had access? Could evidence have been altered? Did the other side “stomp on the evidence?”

Ensuring E-Discovery Compliance When the Smoking Gun is Pointed at You Were you properly noticed about the testimony? Ask no questions that you do not know the answer to Prepare your cross-exam with YOUR expert Identify any weaknesses, even if you can’t disprove evidence Be careful going beyond your knowledge General Protocol Keep expert testimony short as possible Keep it clear Follow a script – don’t ad lib Don’t confuse your own expert PREPARE your expert

Summary Preservation Notices Meet and Confer
Ensuring E-Discovery Compliance Preservation Notices Meet and Confer How to and What to Ask for in Production Requests Protective Orders How to Structure Protocols Using Experts, Neutrals and Special Masters

Questions and Answers Ensuring E-Discovery Compliance

PRODUCING ELECTRONIC DATA
Production Format De-duplication Signature Analysis Hash Analysis Data Carving File Fragments Meta Data Privilege Issues

CONDUCTING FORENSIC ANALYSIS
How to Assess Compliance with Discovery Requests and Completeness of Produced Data Registry Analysis Event Logs Link Files Wiping Programs Detecting Data Hiding Techniques Assessment of Preserving and Production Techniques Metadata Analysis: Finding, Interpreting and Evaluating File Systems Host File Metadata

COMPLIANT DATA RETENTION
Agenda Retention Issues Destruction Issues Systems Data Structures and Organization Summary Questions and Answers

RETENTION ISSUES Compliant Data Retention

RETENTION ISSUES Business Requirements IT Requirements / Capabilities
Compliant Data Retention Business Requirements What do you need to run the business IT Requirements / Capabilities Compliance with the Changes to the FRCP Ignorance is no longer a justification for not retaining data Retain or Destroy Conundrum If you keep it, it is discoverable If you Destroy it in an unreasonable manner (i.e. too short of a timeframe for your industry), the court may apply sanctions.

Retention Issues Recommended Approach to Retention Policy
Compliant Retention Recommended Approach to Retention Policy Get the Support of your Executive Management (i.e. the Board of Directors) Hire an Expert to Guide the Process Create a Task Force in every Pertinent Department Business IT Legal HR Set Expectations Involve Everyone in the Company though Seminars and Training Have a Tracking System Meet every Month / Quarter to Review Compliance

DESTURCTION ISSUES Compliant Data Retention Rule 37(f) provides a statutory framework upon which organizations can now begin to model their policies of destroying electronic information in the ordinary course of business with less fear of fines and sanctions. Organizations wishing to implement a policy of data destruction through the routine operation of electronic information systems should first establish a well-defined destruction policy and clearly identify the legitimate business reasons that support the policy. This policy should be implemented on a consistent basis, across all sources of electronically stored information. Failure to do so could undermine the stated legitimate business reasons for the policy. Applying the policy on a consistent basis requires knowing what electronic information you have, and where you keep it. To that end, organizations should maintain an updated database showing all sources of electronically stored information, the type of information stored, and details, such as filenames and date ranges. Organizations must also establish the means by which they can quickly and adequately implement "litigation holds" on any electronic information that might be relevant to actual or reasonably likely litigation.

DESTURCTION ISSUES Compliant Data Retention Rule 37(f) provides a statutory framework upon which organizations can now begin to model their policies of destroying electronic information in the ordinary course of business with less fear of fines and sanctions. Organizations must also establish the means by which they can quickly and adequately implement "litigation holds" on any electronic information that might be relevant to actual or reasonably likely litigation. I recommend establishing and communicating a company-wide litigation hold policy that includes employees alerting corporate legal counsel of facts that are "reasonably likely" to lead to litigation, and, ideally, utilizing a document retention system that allows for the "tagging" of electronic records that are deemed subject to the litigation hold so as to prevent the inadvertent destruction of discoverable records. Organizations should also designate a single management-level employee to serve as the company's representative on the issue of the organization's destruction policy -- both the business reasons that support such policy as well as the measures undertaken in order to meet litigation hold requirements. This person will then serve as the organization's spokesperson on the facts that demonstrate "good faith" in connection with the organization's destruction policy.

SYSTEMS Firewall Compliant Data Retention EDD Systems
Online Review Systems Case Management Records Retention System eDiscovery Systems Firewall

SYSTEMS Compliant Data Retention

DATA STRUCTURES AND ORGANIZATIONS
Compliant Data Retention

DATA STRUCTURES AND ORGANIZATIONS
Compliant Data Retention Additional Issues for Consideration Native vs. Other File Format Example: Actual vs. a TIFF Copy Native File Format is the Recommended Format Metadata In some cases the “Smoking Gun” may be in Metadata Worst Cast is Metadata has to be retrieved and reviewed Embedded Files Anything attached to another File Example: An Excel Spreadsheet attached to an Embedded files are probably where all the “good stuff” is located

SUMMARY Retention Issues Destruction Issues Systems
Compliant Data Retention Retention Issues Destruction Issues Systems Data Structures and Organization

QUESTIONS AND ANSWERS Compliant Data Retention

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