1. Lori A. Tetreault, Esq. May 17, 2011

2. We’re Gonna talk About:  Pre-trial Discovery  The new Federal Rules of Civil Procedure  “Electronically Stored Information” (ESI)  The Infamous “Litigation Hold” and your Retention Policies and Architecture  Subpoenas to Non-Parties  Certifying or Testifying at Trial

3. PRE-TRIAL DISCOVERY

4. What is “Discovery”?  Pre-trial devices used by a party to obtain facts and information about the case from the other  A party can get most anything that is reasonably calculated to lead to the discovery of admissible evidence.

5. It’s NOT all Rule 26:  State Courts  Administrative Agencies  Regulators All allow discovery or request documents, and this has included electronic records for as long as electronic records have existed

6. Federal Rules of Civil Procedure: Kinds of Discovery  Depositions upon oral or written questions;  Written interrogatories;  Requests for Admissions  Permission to enter upon land or other property;  Physical or mental examinations Requests for the Production of Documents!

7. The 1 ST Thing Records Managers Need to Know: #1  You and your company’s IT Department are instrumental in assisting counsel in document production

8. Federal Rules Governing Document Discovery:  Rule 26, F.R.C.P. General Provisions Governing Discovery  Rule 34, F.R.C.P. Producing Documents, Electronically Stored Information,...  Rule 37, F.R.C.P. Failure to Make Disclosure or to Cooperate in Discovery; Sanctions  Rule 45, F.R.C.P. Subpoena

9. Rule 26(a): Duty to Disclose; General Provisions Governing Discovery  Initial Disclosure: a party must, without awaiting a discovery request, provide the other party with a copy – or a description by category and location – of all documents and electronically stored information (ESI), that it has in its possession or control and may use to support its claims or defenses.

10. Rule 26(e): Supplementing Disclosures and Responses  Parties MUST supplement their prior discovery disclosures in a timely manner whenever the party learns that their response was incomplete or incorrect, or upon order of the court

11. Rule 26(g): Signing Responses  Every discovery response MUST be signed by at least one attorney of record  Signature certifies that the discovery response - to the best of that person’s knowledge, information and belief formed after reasonable inquiry - is complete and correct as of the time it is submitted.  Attorneys can get in BIG trouble (disbarred) for misrepresenting to a court!

12. The 2 nd Thing Records Managers Need to Know: #2  Keep communications open with your counsel and IT department – your counsel will probably insist on it!

13. ELECTRONICALLY STORED INFORMATION (ESI)

14. So what is ESI? 3 General Categories: -Data Files -Background Information (e.g., metadata) -E-mail

15. 1. Data Files  Active data (Readily accessible)  Archival data (Stored remotely)  Back-up data (Tapes, discs, zip drives, etc.)  Legacy data (What’s left after equipment has been removed from active use or data has been migrated)  Residual data (What’s left after files have been “deleted”) *Not all data is recoverable: wiped files, IMs, overwritten files, encryptions, segments of files and files on which file shredding applications have been run

16. 2. Background Information  Metadata  Audit Trails  Access Control Lists  Non-printing Information This information can be VERY important to party- litigants!

17. 3. E-Mail Need I say more?

18. The 3 rd Thing Records Managers Need to Know: #3  How to work with your IT department (Let me know how that works for you!)

19. Rule 26(b): Discovery Scope and Limits  (1) Parties can obtain discovery on any non- privileged matter that is relevant to any party’s claim or defense;  (2) However, a party need not provide ESI from sources that the party identifies as “not reasonably accessible”

20. So, what’s “Not Reasonably Accessible”?

21. Good question!

22. At this point, it’s is a moving target, but: -Be readily usable -Not require restoration or manipulation -Be active, online, near- line or archival -Be not readily usable -Require some type of manipulation/restoratio n/reconstruction -Be erased, like tapes -Fragmented -Damaged “Accessible” data may:“Inaccessible” data may:

23. Even if it’s not “Reasonably Accessible” A court may still order it produced depending on:  The potential value of the information  Whether it can be discovered from some other source  How difficult it really is to access the data  How much it will cost  Whether a party cooperates in good faith in the discovery process

24. AND, under Rule 26:  A court may balance the cost of producing data that is “not reasonably accessible” by shifting all or part of that cost to the requesting party, depending on the circumstances - Good Faith is VIP  In larger organizations, that cost can be astronomical. Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684

25. Rule 34: Producing Documents and ESI A party may request: 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...

26. Rule 34(2) - The party against whom the request was served must respond (either object or assent) Within 30 days!

27. So, the 4 th Thing You Need to Know: #4 Make this a priority (and get staff overtime pre- approved!)

28. Rule 34(b): Producing Documents and ESI The requesting party may specify the form or forms in which ESI is to be produced (native files, litigation support files, TIFF images, metadata, extracted text, PDF, printed paper)

29. If I could afford the cost – I would ALWAYS want the native file with the Metadata! Why?

30. Rule 34: Producing Documents and ESI If a Request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable format.

31. The infamous LITIGATION HOLD

32.  Document retention and destruction policies;  Document retention architecture: Your servers, email system, back up systems, off-site storage facilities, data custodians, access rights, IM archiving, voice mail archiving, etc. If you don’t have these mapped out, you should! The first thing your counsel will do is learn your:

33. If litigation is reasonably anticipated, Counsel may:  Issue a Litigation Hold letter, identifying the information to be preserved  Insist that you suspend routine document and ESI destruction (generally does not apply to routine back up tapes)  Meet with the major business units (Records, IT, HR) to explain the hold  Institute tracking and audit measures  Meet with all employees  Require changing records management or IT procedures  Communicate directly and often with you, IT and key players  Reissue the Litigation Hold Letter repeatedly and send periodic reminders  Assess whether key individuals should be required to certify their preservation and retention actions

34. This seems like a lot Why go through all this?

35. Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions  An award of attorney’s fees and expenses to the party moving for an order to compel discovery  Directing the jury to take as established the matters claimed to be withheld in discovery  Prohibiting the disobedient party from introducing designated matters into evidence  Striking pleadings in whole or in part  Dismissing the action in whole or in part  Rendering a default judgment against the disobedient party  Treating the discovery failure as contempt of court  Taking action against the party AND ITS ATTORNEY!

36. The 5 th Thing Records Managers Need to Know: #5 Your lawyer’s not being a pest just because she can!

37. NON-PARTIES

38. Rule 45: Subpoenas  May be issued to non-parties  If to a non-party, Notice must first be served on the parties, and the Subpoena so should indicate  May specify the form or forms in which ESI must be produced  Must be issued by a court or authorized attorney  May command a personal appearance or the production of documents, or both, at a date/time/place certain (Subpoenas duces tecum)  Non-party may object within 14 days

39. Responding to a Subpoena for Documents  Must produce them as they are kept in the ordinary course of business, or  Must organize and label them to correspond to the categories in the Subpoena  If a Subpoena does not specify a form for ESI, the ordinary form is required  A non-party may make copies in lieu of producing the originals

40. What’s it Gonna Cost Us?  If you choose to make copies, you are usually required to pay your own costs of production  Non-party may make the same objection to producing ESI that is “not reasonably accessible”  Non-party MUST respond/object within 14 days or  The non-party is deemed to have waived any objection  If you do object, the Court has a duty to protect you from unreasonable costs of production

41. AT TRIAL

42. Rule 803: Federal Rules of Evidence Documents are admissible if they are kept in the course of a regularly conducted business activity AND the custodian of records testifies or certifies as to their authenticity

43. Written Certification must state under oath:  When the record was made;  That it was made and kept as a regular practice;  In the regular course of business; and  That it is authentic or an authentic copy

44. What does this mean for ESI?  Your system should have the ability to freeze a record – and the metadata can prove this  You should have, at the very least, an audit trail showing document creation, modification, access, duplication, etc.

45. The 6 th Thing Records Managers Need to Know: #6 You need to be sure when testifying or certifying under oath

46. We talked about:  Pre-Trial Discovery, specifically Document Production, and your role in it;  The nuances of Electronically Stored Information;  Why it’s important to have retention and destruction policies in place, and to map your retention architecture;  What to expect in a litigation hold;  Sanctions for failure to produce documents at trial;  Subpoenas to non-parties; and  Testifying or certifying authenticity at trial

47. QUESTIONS COMMENTS EXPERIENCES ???

48. Lori A. Tetreault, Esq. Thank you!