1. www.frostbrowntodd.com Ethical Issues in the Electronic Age Ethical Issues in the Electronic Age Frost Brown Todd LLC Seminar May 24, 2007 Frost Brown Todd LLC Seminar May 24, 2007

2. www.frostbrowntodd.com The Agenda What Is “Electronic Media?” Why do we care? The duty to preserve The duty to investigate Attorney-client privilege waiver Proposed federal rule changes

3. www.frostbrowntodd.com What is “Electronic Media?” Variety of Electronic Media Devices “Metadata”

4. www.frostbrowntodd.com Why Do We Care?

5. www.frostbrowntodd.com Why Do We Care? Dramatic increase in volume of electronic files More complex storage and retrieval Courts are increasingly holding attorneys responsible for electronic media issues Little – but quickly developing – case law regarding electronic media

6. www.frostbrowntodd.com Why Do We Care? Courts are increasingly willing to impose sanctions in electronic media disputes Intrusive court orders requiring alternative discovery methods Award of attorneys’ fees Adverse inference Expert or fact witness preclusion Default judgment Strike pleadings

7. www.frostbrowntodd.com Duty to Preserve

8. www.frostbrowntodd.com Duty to Preserve Rule of Professional Responsibility Rule 3.4: “[a lawyer shall not] unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” Zubulake v. UBS Warburg, LLC series of cases

9. www.frostbrowntodd.com Duty to Preserve Zubulake “V”: “the obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligations to retain pertinent documents that may be relevant to the litigation.” Zubulake v. UBS Warburg LLC, 2004 U.S. Dist. LEXIS 13674 (S.D.N.Y. July 20, 2004)

10. www.frostbrowntodd.com Duty to Preserve Metropolitan Opera Assoc., Inc. v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003): Defendant’s counsel (a) gave inadequate instructions to its client about its discovery obligations, (b) disregarded the fact that the defendant had no document retention system, (c) delegated document production to a layperson, who was not instructed as to the scope and procedure of producing documents; and (d) blatantly disregarded the court’s and plaintiff’s repeated discovery requests by responding with a baseless representation that all documents had been produced.

11. www.frostbrowntodd.com Duty to Preserve When does the duty attach? When litigation is commenced, or when a party “reasonably should know that the evidence may be relevant to anticipated litigation.” R of P R comment: “in a pending proceeding or one whose commencement can be foreseen…” Zubulake: “when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

12. www.frostbrowntodd.com Duty to Preserve Document Retention and Destruction Policies ARE a successful defense to spoliation claim, if: Formal policy Reasonable Clearly articulates Uniform enforcement Halted upon notice or reasonable anticipation of litigation

13. www.frostbrowntodd.com Duty to Investigate

14. www.frostbrowntodd.com Duty to Investigate A party must conduct an analysis to determine the status of document storage GTFM v. Wal-Mart, 2000 U.S. Dist LEXIS 3804 (S.D.N.Y. 2000)

15. www.frostbrowntodd.com Attorney-Client Privilege Waiver

16. www.frostbrowntodd.com Attorney-Client Privilege Waiver E-mails BUT – benefits to electronic media: Attorney-client privilege search list “Hot doc” search term list

17. www.frostbrowntodd.com “Avoiding the Killer Document”

18. www.frostbrowntodd.com Changes in Federal Rules Affecting Your Business Frost Brown Todd LLC Seminar May 24, 2007 Frost Brown Todd LLC Seminar May 24, 2007

19. www.frostbrowntodd.com FRCP Amendments Amended Rules effective December 1, 2006 Complete version of Amended Rules: http://www.uscourts.gov/rules/supct1105/CV_Clean.pdf Brief description available at: http://www.frostbrowntodd.com/news/client_advisories/detail.aspx?pub=1397

20. www.frostbrowntodd.com FRCP Amendments Federal court (not state courts) Apply to new litigation (and pending, unless not “just and practicable”) Apply to parties to litigation and third-party subpoena recipients

21. www.frostbrowntodd.com FRCP Amendments (1) Incorporate ‘electronic documents’ into FRCP; (2) Require early discussion of electronic discovery; (3) Create “safe harbor” for systematic, routine destruction of information; (4) Allow party requesting documents to specify “form of production”; (5) Provide relief for attorney-client privilege waiver; and (6) Create “two-tier” level of electronic information.

22. www.frostbrowntodd.com TIP #1 Implement steps now, before litigation arises, to organize your electronic data. If your company is not involved in litigation, your obligations have not changed. Generally, no requirement to retain information; BUT, some entities are subject to regulatory or statutory requirements, OR, business reasons for storing certain information.

23. www.frostbrowntodd.com TIP #2 As soon as litigation is filed (or “reasonably anticipated”), take immediate steps to preserve information.

24. www.frostbrowntodd.com TIP #3 Only use “legacy” data for disaster backup recovery purposes. “Two-tiered” categories of electronic information. Active vs. legacy data

25. www.frostbrowntodd.com TIP #4 Use the Rule 26(f) conference strategically: Create an affirmative defense against any potential spoliation claim; Understand your file management system; Force the opposing party to fulfill their discovery and preservation obligations; If appropriate, raise the possibility of cost-shifting; and Raise any problematic issues now for early resolution.

26. www.frostbrowntodd.com TIP #5 When litigation arises, use technology to your benefit Attorney-client or “hot doc” term searches Instead of costly litigation holds, consider using “mirror imaging” to fulfill preservation obligations Use metadata date filters to narrow production review