©2011 Office of Massachusetts Attorney General Martha Coakley E-DISCOVERY Hélène Kazanjian Anne Sterman Trial Division

ELECTRONICALLY STORED INFORMATION (ESI) © 2011 Office of Massachusetts Attorney General Martha Coakley ESI includes , word processing files, databases

ELECTRONICALLY STORED INFORMATION (ESI) NO CASE IS TOO SMALL TO CONSIDER ESI Most cases have s Most cases have electronic documents © 2011 Office of Massachusetts Attorney General Martha Coakley

SCOPE OF DATA In addition to searching for discoverable material in physical locations, such as file cabinets, we are required to search and produce documents that are stored electronically. METADATA - information about an electronic file, such as the date it was created, its author, when and by whom it was edited, what edits were made, and, in the case of , the history of its transmission © 2011 Office of Massachusetts Attorney General Martha Coakley

SCOPE OF DATA HOW DATA ARE STORED Media (floppy discs, hard drives, CD/DVDs, tapes) Devices (computers/servers/laptops/tablets, smart phones/cell phones, flash drives, external hard drives, answering machines, digital cameras, MP3 players, gaming consoles, copiers/scanners) © 2011 Office of Massachusetts Attorney General Martha Coakley

SCOPE OF DATA WHERE ARE DATA STORED Office Home Centralized Network servers Servers for public providers - Google/Hotmail/Yahoo Cloud providers CDs, floppy disks flash drives - anywhere Smart phones/cell phones – anywhere Backup tapes stored on-site or off-site Long –term off-site storage © 2011 Office of Massachusetts Attorney General Martha Coakley

FEDERAL RULES OF CIVIL PROCEDURE Fed.R.Civ.P Producing electronically stored information A party may serve a request on any other party for electronically stored information A party may object to producing electronically stored information. If the party objects to producing the information in the requested form or if no form was specified, the party must state the form it intends to use. If the request does not specify a form for producing electronically stored information, a party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form © 2011 Office of Massachusetts Attorney General Martha Coakley

FEDERAL RULES OF CIVIL PROCEDURE Fed.R.Civ.P. 16(b) Scheduling Order A scheduling order may “provide for disclosure or discovery of electronically stored information” 16(b)(3)(B)(iii) Fed.R.Civ.P. 26(f)(3) Discovery Plan (“meet and confer”) A discovery plan must state the parties’ views and proposals on: (C) any issues about disclosure of discovery of electronically stored information, including the form or forms in which it should be produced. Fed.R.Civ.P. 26(b)(2)(C) Burdensomeness The trial court has the power to limit discovery “if the burden or expense of the proposed discovery outweighs its likely benefit” © 2011 Office of Massachusetts Attorney General Martha Coakley

PROPOSED MASSACHUSETTS RULES OF CIVIL PROCEDURE Mass.R.Civ.P. 34 Producing electronically stored information A party may serve on any other party a request for electronically stored information. A party may object to producing electronically stored information. If the party objects to producing the information in the requested form or if no form was specified, the party must state the form it intends to use. If the request does not specify a form for producing electronically stored information, a party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form

PROPOSED MASSACHUSETTS RULES OF CIVIL PROCEDURE Rule 16 Pre-trial conferences Court may convene a conference to consider various matters, including “the preservation and discovery of electronically stored information.” Court shall make an order reflecting action taken at the conference Rule 26 Electronically Stored Information Conferences At the request of any party a conference should be held to develop a plan relating to the discovery of electronically stored information. © 2011 Office of Massachusetts Attorney General Martha Coakley

ADDITIONAL RULES Rule 37 (Sanctions) Rule 45 (Subpoena) © 2011 Office of Massachusetts Attorney General Martha Coakley

DUTY TO PRESERVE AND PRODUCE “ Once a party reasonably anticipates litigation, it must suspend routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) © 2011 Office of Massachusetts Attorney General Martha Coakley

DUTY TO PRESERVE AND PRODUCE When is litigation reasonably anticipated? Employment case – union grievance, MCAD filing, date of termination Tort case – receipt of presentment, date of incident Contract case – date of breach © 2011 Office of Massachusetts Attorney General Martha Coakley

SPOLIATION Destruction or alteration of evidence Adverse Inference Jury instruction Monetary Sanctions Attorney Sanctions Defense to liability Dismissal or default Evidentiary sanctions Criminal contempt of Court © 2011 Office of Massachusetts Attorney General Martha Coakley

SANCTIONS Sanctions for e-discovery violations at ‘historic’ high, Christina Pazzanese Massachusetts Lawyers Weekly (2/9/2011) 2009 data - Violations prompting the most sanctions were for failure to preserve evidence. Sanctions included monetary awards from $250-$8.8 million. © 2011 Office of Massachusetts Attorney General Martha Coakley

DUTY TO PRESERVE AND PRODUCE CASES Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (2003) (allocating e-discovery costs between parties) 222 F.R.D. 212 (2003) (sanctions for negligently failing to preserve evidence) 229 F.R.D. 422 (2004) (sanctions for willfully failing to preserve evidence) Pension Committee Of Univ. of Montreal Pension Plan v. Bank of America Securities, LLC, 685 F.Supp.2d 456 (S.D.N.Y. 2010) ( examples of gross negligence: failure to issue a hold, to identify all key players and to ensure that electronic and paper records are preserved, to cease the deletion of s or to preserve records of former employees, to preserve backup tapes when they are the sole source of information) © 2011 Office of Massachusetts Attorney General Martha Coakley

DUTY TO PRESERVE AND PRODUCE © 2011 Office of Massachusetts Attorney General Martha Coakley Disability Law Center v. Department of Correction

©2011 Office of Massachusetts Attorney General Martha Coakley TRIAL DIVISION LITIGATION HOLD PROTOCOL – WHAT YOU CAN EXPECT TO BE ASKED Have you sent out a litigation hold letter? Who are the key custodians, and what is the likely universe of documents? What steps are being taken to preserve relevant evidence? What is your retention policy for both and paper documents? Have you altered that policy in this case?

© 2011 Office of Massachusetts Attorney General Martha Coakley ESTABLISHING AN ISA AND FINDING A VENDOR Agencies must fund e-discovery for their cases The AAG will work with you to set up an ISA for each case We know that for every case, there will be some costs associated with the process, such as scanning and searching Paper documents must be scanned so they can be reviewed and produced consistently with electronic documents We recommend doing as much as possible with a vendor. Anticipate having to defend your process to a court in the event of a motion to compel.

© 2011 Office of Massachusetts Attorney General Martha Coakley Custodians – who has the data? Anyone likely to have relevant information Better to be over-inclusive than under- inclusive Remember to include administrative personnel Subject matter Think expansively Applicable date range IDENTIFYING THE DATA

© 2011 Office of Massachusetts Attorney General Martha Coakley Collecting – done either by in-house IT or vendor, depending on case and complexity Mirroring hard drives, capturing boxes, restoring archives Vendor runs search of files using custodians and search terms with applicable date ranges Goal: Searches performed by disinterested party who can, if needed, testify as to method and chain of custody COLLECTING THE DATA

© 2011 Office of Massachusetts Attorney General Martha Coakley It is essential to use an automated litigation support system (ALS) to search, manage, and control the ESI in your case. El-Amin v. George Washington University, 2008 WL (D.D.C. Oct. 22, 2008) Court ordered the parties to create a system whereby all existing documents are hyper-linked to fields in a database that will permit the instantaneous retrieval from within the database of the information offered by plaintiffs in support of any factual proposition. REVIEWING THE DATA

© 2011 Office of Massachusetts Attorney General Martha Coakley PRODUCING THE DATA Data must be produced in native format (or the format negotiated in the meet and confer) wherever possible. For example, s must be produced electronically, not printed. Redactions are made electronically, with un-redacted version preserved Privilege log generated by the software Producing evidence this way preserves metadata

TRAPS FOR THE UNWARY © 2011 Office of Massachusetts Attorney General Martha Coakley Searches performed inconsistently, either in the terms used or the method employed Improper selection of search terms, custodians, or date ranges Inability to maintain attachments and associations Not being able to articulate and justify how the collection, searching and production was performed.

COSTS Cost of preserving, collecting and producing electronic information To the extent that you do not have in-house IT capacity, a private vendor must be used Individual non-IT employees should not be preserving and collecting e-discovery. © 2011 Office of Massachusetts Attorney General Martha Coakley

COSTS CLAWBACK AND QUICK-PEEK AGREEMENTS – save money and time on privilege review Clawback – Parties agree that inadvertent production of privileged materials will not automatically constitute a waiver of privilege. Quick-peek – The requesting party is permitted to see his opponent’s entire data set before production and specifies relevant information. The producing party then extracts privileged information from the smaller set. © 2011 Office of Massachusetts Attorney General Martha Coakley

E-DISCOVERY © 2011 Office of Massachusetts Attorney General Martha Coakley A FINAL WORD...