Electronic Discovery in the Media

1. The Challenge of Electronic Discovery: How Reference Service, Records Management and Litigation Support Interact G-3 Tuesday, July 17, 2007 9:00 A.M. – 10:30 A.M. AALL 100th Annual Meeting & Conference, New Orleans Coordinated by: Lee R. Nemchek, Morrison & Foerster LLP

2. Electronic Discovery in the Media • EDD or Electronic Data Discovery • EED or Electronic Evidence Discovery • ESI or Electronically Stored Information • DAT or Document Analysis Technology • eDiscovery or E-Discovery • Cyber Evidence

3. Why Do Law Librarians Need to Know? Firm Lawyers Are: • Advising corporate clients on EDD issues • Involved in EDD as part of active litigation cases (either against clients or against the firm itself) • Writing articles and speaking at meetings • Developing practice groups and specialties

4. Why Do Law Librarians Need to Know? Law Schools Are: • Adding EDD courses to their curriculums “Santa Clara Law School adds e-discovery course.” 6/4/07http://sanjose.bizjournals.com/sanjose/stories/2007/06/04/daily18.html?t=printable “EDD Goes to Law School” [Rutgers & Seton Hall] 7/10/07 http://www.law.com/jsp/legaltechnology/PubArticleFriendlyLT.jsp?id=1184058397090

5. Law Firm Practice Group Examples • K&L Gatese-Discovery Analysis & Technology (e-DAT)http://www.klgates.com/practices/ServiceDetail_Print.aspx?service=84 • Frost Brown Todd Information Management and Electronic Discoveryhttp://www.frostbrowntodd.com/practice/ServiceDetail.aspx?service=217 • Greenberg Traurig eDiscovery & eRetention http://www.gtlaw.com/experience/practice.aspx?id=159&detail=1

6. Practice Group Examples(cont’d.) • Blackwell SandersDigital Discovery and Records Managementhttp://www.blackwellsanders.com/practiceDetail.aspx?id=d7f168f3-35c6-46f8-ba59-ffeaef94bd59 • Sutherland Asbill & BrennanElectronic Discovery and ESI Managementhttp://www.sablaw.com/practice/practice_detail.aspx?iPractice_ID=29825103&sType=A&sPType=G • Cozen O’Connor Electronic Discovery Disputeshttp://www.cozen.com/practice_area_detail.asp?d=1&paid=212

7. An E-Discovery/ERM Law Firm • Redgrave Daley Ragan & Wagner LLPhttp://www.rdrw.com • Information & Records Management Risk Assessment Audit • Information & Records Management Strategic Action Plan • Litigation Response Plan Audit • Electronic Discovery Audit • Electronic Discovery Strategic Action Plan • Information & Records Management Integration Assessments • Response Integration Assessments

8. G-3The Challenge of Electronic Discovery: How Reference Service, Records Management and Litigation Support InteractAALL Annual ConferenceNew Orleans, Louisiana John C. Montaña, J.D., The PelliGroup

9. Discovery Basics • Governed by the Rules of Civil Procedure • Federal • State

10. What are the Rules of Civil Procedure? • The rules that govern how lawsuits proceed in a court system • Deadlines • Processes

11. Discovery • Gives a right of access by your opponent to: • Records • Evidence • Witnesses • And anything else under your control, including electronic data

12. The Historic Situation • Very broad, unrealistic demands for electronic information • Conflicting and confusing local solutions • Hardball discovery demands • Unclear and inconsistent guidance from courts

13. Results • Massive discovery costs • Many case of sanctions • Defensive hardball – “dumping” • Why? • Legal doctrine was total unsuited for modern technology

14. The Current Legal Climate • Recognition that demands were unreasonable • Recognition that costs were out of control

15. Response • Amendments to Federal Rules of Civil Procedure • The Sedona Guidelines

16. What Are the Sedona Guidelines? • The Sedona Conference is a non-profit group of legal experts that offer suggestions for improving the legal system • The Sedona guidelines for electronic discovery are their suggestions for improving the system • They are non-binding, but persuasive authority

17. Changes to the Federal Rules • Conceptual reform – recognition of: • Data volumes • Difficulty of searching some data sets • Costs and difficulties of isolating or freezing data sets • Inherently transient nature of some data

18. Rule 16 • (c) Subjects for Consideration at Pretrial Conferences: • . . . the control and scheduling of discovery, including orders affecting disclosures and discovery

19. Rule 26 • A party provide to other parties a description by category and location of: • all documents, electronically stored information, • 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

20. Rule 26 Limitations • A party need not provide discovery of electronically stored information from sources not reasonably accessible because of undue burden or cost. • On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. • If that showing is made, the court may order discovery from such sources if the requesting party shows good cause • The court may specify conditions for the discovery.

21. Rule 26 • The frequency or extent of use of the discovery shall be limited by the court if it determines that: • The discovery sought is unreasonably cumulative or duplicative • Is obtainable from some other source that is more convenient, less burdensome, or less expensive • The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or • The burden or expense of the proposed discovery outweighs its likely benefit

22. Rule 26 • Conference of Parties; Planning for Discovery. . . . • Any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

23. The Sedona GuidelinesManaging Electronic Information • Not official, but: • Very, very prestigious and learned think tank • Very persuasive authority • General tenor is the same as the federal rules

24. The Sedona GuidelinesProcedures • Organizations should have reasonable procedures • Procedures can be tailored to the organization, but -- • Procedures should address full information life-cycle • Procedures should address litigation hold

25. The Sedona GuidelinesRetention • You don’t have to preserve all e-data • You don’t have to preserve shadow, residual or deleted data • You don’t have to preserve metadata

26. But . . . In the Commentary Organizations should consider retaining sufficient metadata about records to ensure the trustworthiness of the records for organizational, fiscal, legal and historical purposes. If an organization migrates electronic versions with associated metadata to other versions without that metadata, the organization should consider if and how it would preserve electronic versions including metadata if it has actual notice (by court order or otherwise) that the metadata is material and needs to be preserved.

27. The Sedona GuidelinesElectronic Document Production • Courts should balance cost and burden against need • Parties must make good faith effort to preserve data, but it is unreasonable to expect all data to be preserved at any cost • Primary source should be regular business systems

28. The Sedona GuidelinesElectronic Document Production • Resort to backup tapes etc., only upon a showing of need • No duty to preserve or produce deleted, fragmented, shadow or residual data • No duty to preserve metadata unless material to the dispute • Sanctions only upon showing of a duty to preserve and reckless or intentional failure to preserve

29. What Do FRCP and Sedona NOT Do? • Preservation of records after notice of litigation – duty unchanged • No blanket protection – the Judge still has the final say

30. Records Management Success • Written Policy • Low-level Nuts & Bolts • Indices • Data Structure • Metadata • Training • Know the Failure Points

31. Common Failure Points • Poor understanding of what the organization actually needs • No implementation strategy • No enforcement mechanism • Inadequate resources • Poor employee training • Blind reliance on technology solutions • Poor technology implementations

32. The Challenge of Digital Data • Voluminous • Duplicative • Dispersed • Dynamic

33. Basic Questions • Specify actions to be taken when a “litigation hold” is in force, including forming a Records Hold Response Team • What prompts a “litigation hold?” • Subpoena • Litigation • Reasonably anticipated litigation • Official investigation

34. More Basic Questions • How will compliance be monitored? • How will compliance be enforced? • Who will be responsible for: • Enforcing policies • Monitoring enforcement • Review and updating policies

35. Where Does This Leave Us? • With an Opportunity: • You have: • two opportunities to confer on electronic data issues • two opportunities to set expectations • two opportunities to manage the issue

36. What To Do? • Negotiate: • The parties must confer in good faith prior to meeting the judge • That’s an opportunity to assert reasonable objections to unreasonable demands

37. What to Do? • Educate: • If the parties can’t come to agreement, the judge decides • The parties will be offering different spins to the judge • The judge has to be educated on the realities of electronic discovery

38. Where to Start: • Educate yourself – know the issues, problems, costs • Come prepared – the pre-trial conferences are where things get decided

39. Before the Conferences • Find your own internal experts • Confer with them • Know your own capabilities – don’t over-promise • Learn how to explain technical concepts in non-technical terms

40. Remember: • Litigation is hardball – the other side may not agree with your theories of reasonable • The judge is the ultimate arbiter, so the side that wins is the one that convinces the judge it is right • The judge may start out with little familiarity with technical computer issues

41. What Not To Do: • Don’t overstate your case • Don’t try to jerk the other side or the judge around • Don’t assume the judge is uninformed, non-technical or stupid

42. Electronic Discovery: “Geek Talk” Rachelle L. DeGregory, Esq., Director, Industry Relations

43. Overview • Why are Electronic Documents are Different? • Volume and Duplicability • Persistence • Dynamic and Changeable • Meta Data • Environmentally Dependent • Dispersion and Searchability • How Does this Impact Litigation Players? • Librarians • Attorneys • Records Managers • Paralegals/Litigation Support Professionals • IT/MIS Personnel • Judges

44. What Makes E-Discovery Different?

45. E-Discovery is Different: • Volume & Duplicability • Persistence • Dynamic & Changeable • Metadata • Environment Dependent and Obsolescence • Dispersion and Searchability The Sedona Principles: Best Practices Recommendations and Principles for addressing Electronic Production

46. Volume & Duplicability • Volume of Electronic Data is Increasing • 99% of new information is stored electronically (most on hard disks)* • An estimated 60 billion email messages are sent each day • Most Data is Stored Only Electronically • Less than 1/3 of e-documents are ever printed • 60% of business-critical info is stored within corporate email systems • Few companies proactively manage document storage

47. Persistence • Data is More Difficult to Dispose of than Paper • Shredded paper document is essentially irretrievable • “Delete” a misnomer in e-discovery • With Electronic Data, a Little Goes a Long Way: • 1 megabyte = A short novel • 1 gigabyte = A pickup truck filled with books • 1 terabyte = 50,000 trees reduced to paper

48. Dynamic and Changeable • Computer data has the potential to automatically update and backup files • In many instances, these changes take place without human intervention

49. Metadata Ability to retain all 3 dimensions: • Front of document: The Image • The “face” of the document • Middle of document: The Text • What the document “says” • Document content fully searchable • Back of document: Meta Data • Meta data = data about the document • Ex: date created, bcc, links to attachments

50. Why Metadata Matters • Provides additional information about the document you might not find in the paper version • Provides the “authenticity” of the document • Provides link between email and attachment(s) • Provides link between conversation threads • Allows for de-duplication