eDiscovery Also known as “ESI” Discovery of “Electronically Stored Information” Same discovery, new form of storage

WHERE IS MY ESI?

ESI can reside on desktop and laptop computer hard drives, flash drives, PDAs, and other portable storage devices, network storage devices, and back-up tapes, and metadata embedded in , documents, and devices. Any electronic information potentially relevant to a dispute wherever it is stored - at a work station, on a laptop, on a personal computer at home, on an employees personal laptop

eDiscovery – not a new problem Computer-based discovery since at least 1980s Discovery of s dates back to the early 1990s But now pursued with a new vengeance But risk of non-compliance may be comparable to or greater than risk of underlying legal claim

Sanctions in eDiscovery Cases: Coleman Holdings v. Morgan Stanley Sanction: –Adverse inference instruction –Partial entry of default judgment Result: Verdict for Plaintiff –$1.6 billion compensatory & punitive damages –$15 million in fines for discovery abuses

Sanctions in eDiscovery Cases: Zubulake v. UBS Warburg Sanction: –Adverse inference instruction Result: Verdict for Plaintiff –$29.3 million in damages

eDiscovery – New Rules Amendments to the Federal Rules of Civil Procedure t ook effect December 1, 2006

Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to insure the preservation of relevant documents.

Duties of Counsel ( with the assistance of IT) Preservation Notice Direct communication with principal personnel (“key players”) regarding obligations to preserve data Instructions to party’s employees to produce relevant active files, and to take steps to preserve backup media

“Counsel has the duty to properly communicate with its client to ensure that ‘all sources of relevant information [are] discovered’... To identify all such sources, counsel should ‘become fully familiar with [its] client’s document retention policies, as well as [its] client’s data retention architecture’... This effort would involve communicating with information technology personnel and the key players in the litigation to understand how electronic information is stored.” Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL at *5 (S.D.N.Y., May 23, 2006) (quoting Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”)).

Rule 26(a)(1) “A party must, without awaiting a discovery request, provide to other parties: … (B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.”

Rule 34(a) “Any party may serve on any other party a request (1) to produce and permit the party making the request... to inspect, copy, test, or sample any designated documents or electronically stored information... stored in any medium from which information can be obtained - translated, if necessary, by the respondent into reasonably usable form.”

The Pyramid of Irrelevance

EEOC Preservation Notice