1. Trials in the Electronic Era Chad S. Bowen, Jennis & Bowen, Tampa Karin S. Jenson, BakerHostetler, N.Y. Hon. Edwin G. Torres, S.D. Fla.  March 2016

2. “[Amended] Rule 1 directs that the Federal Rules 'should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.'” “The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.” [italics added] What is the Very First Rule of Civil Procedure? -Chief Justice John Roberts- 2015 Year-End Report on the Federal Judiciary

3. 1. Overview of electronically stored information; 2. Understand your ethical obligations to be proficient in e-discovery; 3. Understand the basic e-discovery process and preservation obligations; 4. Understand the new Federal Rules impacting e- discovery and e-discovery disputes; and 5. Understand how to use e-discovery in bankruptcy litigation.

4. Electronically Stored Information (ESI ) ESI is information that is created, altered, communicated or stored in digital form. ESI includes writings, graphs, charts, photographs, sound recording, images an other data compilations--stored in any medium.

7.  Proportionality fights (Is the “juice worth the squeeze”?)  Costs too much/cost shifting  “We can’t find it” (Not “reasonably accessible”)  Spoliation & sanctions

8.  E-discovery is not the same as computer forensics.  In general, proper e-discovery involves a process by which electronic data is located, preserved, and searched with the intent of using it as evidence in a trial.

9.  Worrying about preserving ESI after your client is served with discovery requesting ESI.  Simply adding “… and any electronically stored information” to the definition of “Documents” in your RFP, and then hoping the opponent performs an appropriate acquisition, search and production of responsive ESI. When responding to a document request for ESI, simply converting e-mails, Word documents, Excel spreadsheets, etc. to PDF files and producing them on a CD or flash drive.

10. The trigger : “A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.” The Sedona Conference® Commentary On Legal Holds: The Trigger & The Process, 11 Sedona Conf. J. 265, 271-274 (2010)  Does preserving party have enough information to implement preservation actions?  Who are the likely parties?  What are the general facts?  When did the key events occur?  Where would the likely information be?

11.  Who has a duty to preserve ESI?  Potential debtors, debtors, DIP’s, creditors and other parties-in-interest.  What is it, and does it apply in bankruptcy cases?  The obligation to preserve ESI (and other relevant documents) that may be relevant to claims or defenses. Yes, it applies in bankruptcies.  When does the duty arise in bankruptcy cases?  Upon reasonable anticipation of litigation, which could be prior to filing a petition, contested matter, adversary proceeding or proof of claim.  How does an attorney and client fulfill the duty?  Ensure clients take reasonable, proportional steps to preserve books and records through a proper litigation hold;  Extends to representatives and affiliates, who should be properly notified;  Confer, communicate, and cooperate early; and  Remember, the duty does not require preservation of all ESI. See, ABA Electronic Discovery (ESI) in Bankruptcy Working Group, Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases, The Business Lawyer, Vol 68, No. 4, pp 1113-1148 (August 2013)

12. Identify Sources of relevant ESI Discuss with IT staff (disable auto delete function) Issues and Parties Location Machines Custodians Issue Written Hold Notice Purpose Specific Issues Specific Custodians Types of ESI Suspend “auto- delete” Targeted distribution to custodians Require Written Acknowledgment Conduct Interviews with Key Custodians Periodic Follow-up with custodians Not too many Not too few Receipt Understanding In Writing Reconfirm Receipt and understanding Discuss types, location of relevant ESI Answer any questions

14. TIFF and Load Files Outlook (.PST) files PDF’s of ESI Paper copies of ESI Forensic Acquisition 3 RD party ESI Software ESI in “native format”

15. 1. Who owns, creates and accesses the data (i.e. custodians)?  Authors, in-house IT staff, secretaries, off-site employees and agents 2. What equipment is used to store ESI?  ISPs (Gmail, Yahoo), local servers, workstations, personal devices, BYOD 3. Where does relevant data reside?  Geographic location, cloud, servers, and data maps 4. Which kind of ESI are you looking for?  Word document (.DOC)  Word scans (.PDF)  email (Outlook.EML, Gmail, Yahoo, etc.)  Specific reports (.TIFF scans,.XLS, format) 5. How important is the ESI to the case vs. how hard is it to get?  Proportionality – more on this later…

16. 1. What is your role? Represent Debtor, Trustee, Creditor, Committee? 2. Who owns the data? Any agreements like APAs? 3. Identify and interview key players including custodians, IT professionals? 4. Are ESI assets destroyed, altered, or abandoned? 5. How do I fulfill my duty to preserve?

17. Identify Relevant ESI Properly Acquire ESI Process & Cull ESI (De-dupe/De-NIST/ Index) Search ESI Review ESI Produce ESI Iterative Feedback Loop- Refine the keywords and search or better “seed” the TAR

18. Source: eDiscovery Institute, Judges’ Guide to Cost Effective E-Discovery End with 39GB of Data: Over a 92% Reduction Started with 500 GB of Data

19. More Transparency of Preservation Efforts – Parties should discuss preservation efforts early as part of a discovery plan(Rule 26) and is a proper subject for scheduling orders (Rule 34). Early due diligence is a MUST. Focus on Relevancy – Definition is “relevant to the claims or defenses and proportional to the needs of the case.” Subject-matter discovery and “reasonably calculated to lead to the discovery of admissible evidence” has been deleted (Rule 26). Focus on Proportionality – Discovery must be proportional to the needs of the case, listing factors (Rule 26). No more boilerplate discovery objections- Objections must be stated with specificity,” stricter timing for production, and must disclose that materials withheld on the basis of objection (Rule 34). An analytical framework for spoliation- E-discovery is not a “gotcha,” but if you acted with an “intent to deprive” the other party of ESI, draconian sanctions await (Rule 37(e)).

20.  Rule 26(b)(1) requires discovery to be proportional to the needs of the case  “considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”  Rule 26(f) - Meet and confer to discuss ESI issues  Determine if ESI is “not reasonably accessible”

21.  The Risk: Given the volume of ESI, the possibility of disclosing privileged information is higher than with traditional discovery.  The Solution: A “Clawback” Agreement and Order  Contemplated by Rule 26(b)(5)(B)  Fed. R. Evid. 502(d) and (e): no waiver, no required showing of reasonable steps to protect privilege. Court order required to be enforceable.  Practice Pointer: Note the difference between 502(b) (inadvertent disclosure) and 502(d) (controlling effect of court order). Negotiate a “claw back” agreement and request a “claw back order” early in the case, before exchanging ESI.

22.  Ensure proper preservation by clients upon a “trigger";  Communicate, collaborate, and cooperate with your client early regarding preservation protocol;  Involve e-discovery specialists early in the case;  Don’t forget to invoke Rule 502(d) - the claw back mechanism to address potential privilege disclosures;  Confer with your opposing counsel early regarding e-discovery protocols to be used (See Rule 26(f) checklist);  Ask for court intervention (if needed). The court may appoint third party e-discovery expert if parties cannot agree on using one expert for the entire case; and  Agree to mediate e-discovery disputes to limit judicial intervention.

24.  Remember: The normal rules of evidence apply  Memorize one Rule of Evidence: “4-6-8-9”  Is the ESI relevant (401), competent (601), hearsay (801) and authentic (901) ?  Authentication of ESI can be an issue due to ESI’s malleability (emails, spreadsheets, webpages, computer stored files, etc.).

25.  Is it genuine and what it purports to be? Easy if ESI converted to a paper document like an email.  Direct evidence of authenticity usually available: witness with personal knowledge of document’s creation or receipt.  Circumstantial evidence also sufficient: witness can authenticate through distinctive characteristics or patterns (e.g. email headers, internet addresses, context of transmission)

26.  If presented in electronic form, must also show that the ESI was acquired and preserved in such a way that it was not altered.  Especially true of dynamic data, like Excel® spreadsheets and cases where metadata is important  Key is a reasonable likelihood that the data is what the proponent claims it is. Chain of custody, from securing evidence to its presentation, must show reasonable likelihood that the data has not been contaminated or altered.

27.  If special software or computer devices needed (e.g. GPS unit), may need to rely on showing that process or system used produces an accurate result  Authentication of the process or system used depends on showing that the software or device is in proper working order.  Expert testimony may be necessary, unless foundation for lay opinion based on training and experience is possible and issues not too complex.

28.  Not the 1920s anymore! We learn our facts visually, not orally (radio v. television v. Youtube).  Anything worth using must be shown to us (“let your facts show, not tell”).  Computer displays, blowups, or at least a now- old fashioned ELMO display is essential.  Judges are people too; persuasion techniques are not limited to jurors.

29. HELPFUL RESOURCES  Rule 26 Checklist  ESI Questionnaire  Judges Guide to Cost Effective e-Discovery  Materials from today's presentation available online at http://www.bbasdfl.org/article. html?aid=509 http://www.bbasdfl.org/article. html?aid=509