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Winning Strategies PowerPoint PPT Presentation


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Winning Strategies . for Meet & Confer . Craig Ball. Richard Best. Steve Brower. David Draper. Proposed New Federal Rules. Meet and Confer Proposed Rule 26(f):

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Winning Strategies

for Meet & Confer

Craig Ball

Richard Best

Steve Brower

David Draper


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Proposed New Federal Rules

  • Meet and Confer

  • Proposed Rule 26(f):

    • The parties shall confer…to discuss any issues relating to preservation, disclosure or discovery of electronically stored information including the form in which it should be produced


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Preservation Letter

Meet & Confer

Motion for Sanctions

The New Trinity of EDD Strategy

The EDD conference is no mere formality


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Would you go to a mediation unprepared?

Meet & confer merits preparation


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  • Before the Conference

  • At the Conference

  • After the Conference


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Before the conference: Requesting Party

Examine what you already know about the e-evidence

Headers, dates and circulation of key e-mail

Path data on key documents (e.g., M://mission/marketing/)

Know what formats you can manage

E-mail: paper-like production

Databases, spreadsheets, voice mail: native production

What about application and system metadata?


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Before the conference: Requesting Party

Communicate issues to be addressed

What must your opponent know about systems?

Locations

Operating systems and applications

Back up methods and schedules

Native data formats

Data volumes

Who should be at the conference or available by phone?

Know your client’s system

Anticipate boomerang discovery

Do you need EDD expert with you or available by phone?

Consider use of special master or neutral


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Before the conference: Producing Party

Know your client’s systems

Back up systems, unit inventory and location, data volumes, e-mail clients, operating systems, retention policies

Know what formats you can preserve/produce

Can you preserve application and system metadata?

Voice mail? IM? Mobile devices?

Communicate issues to be addressed at conference

What must your opponent know about their systems?

Locations

Operating systems and applications

Back up methods and schedules

Native data formats

Data volumes

Have an EDD expert with you or available via phone

Respond to preservation letter


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At the conference: Requesting Party

Setting the agenda requires preparation

Must know client’s systems, need to research target systems (little knowledge goes long way in insuring candor)

What are your goals? What do you need? Can you tier or stagger?

Address preservation needs and limits

Follow up on preservation letter

Must back up tape rotation be suspended?

Is there a genuine going forward preservation need?

Will periodic (i.e., month end) retention suffice?

What are needs with respect to mobile systems, personal systems?

What about VM, IM, PDA, phone?


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At the conference: Requesting Party

Designate production formats

File formats

Production media

Establish deadlines

As reviewed vs. all-at-once

Seek certification of compliance

Forensics

Is forensics an issue? No second chances!

Who are key players? Which systems (home? mobile? assistants’?)

Who will do acquisition? Be sure everyone agrees on process

Who will act as custodian? Use shared hashes to insure integrity

Cost allocation by agreement?


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At the conference: Producing Party

Know your capabilities

Can you deliver on everything promised?

Know compliance costs and man hours

Clearly establish what need NOT be preserved

Must back up tape rotation be suspended?

Is there a genuine going forward preservation need?

What are needs with respect to mobile systems, personal systems?

What about VM, IM, PDA, phone?

Memorialize what’s offered, rejected and agreed upon

Make clear what you’ve offered to preserve

Make clear what you declined to preserve and shift burden to ReqP

Forensics

Know key players for forensic imaging

Be wary of forensic preservation

Lay the groundwork for cost sharing

Put on notice re: costs and seek cost sharing agreements

(opportune time, as RP anxious for discovery)


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After the conference: Requesting Party

Memorialize requested, rejected and agreed upon

Report Outcome to the court

Submit Agreed Preservation Order


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After the conference: Producing Party

Memorialize what’s offered, rejected and agreed upon

Make clear what need not be preserved

Make clear what you declined to preserve and shift burden to ReqP

Resist preservation order

Serious sanctions typically follow violation of court’s orders


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Tips: Both Sides

Consider a worksheet

Remember, it’s still all about the paper trail

Consider sampling

Glossary

Are both sides using terms with same meanings?: E.g., copy, clone, image, Ghost, bitstream

Memorialize. Memorialize, Memorialize

Put it in writing: every agreement plus declined proposals


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Questions?


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