E-DISCOVERY

1. E-DISCOVERY IN CONSTRUCTION LAW Elizabeth M. Ryan Kass Shuler, PA eryan@kasslaw.com (813) 405-2749

2. WHAT REALLY IS THE DIFFERENCE HERE? DISCOVERY E-DISCOVERY

3. TRADITIONAL DISCOVERYEQUALLY OVERWHELMING BUT FAMILIAR

4. ELECTRONICALLY STORED INFORMATION “ESI” IS NOT PAPER IN ELECTRONIC FORM

5. WHY YOU HATE E-DISCOVERY • The information feels ephemeral. • The mechanics behind ESI confuse us. • Not literate in IT language or practice.

6. WHY YOU SHOULD HATE ESI • Horror stories…. • Sanctions against Client • even when the client lost/destroyed documents by accident • Sanctions against the Lawyer • even when the lawyer made reasonable efforts • Entirely new standards for handling information that no one anticipated. • $52 Million mistake in a recent construction law case. • Sureties can be responsible for agents documentation • Sureties rely on Principal’s documentation. If they disappear, so does the evidence. • Unstructured Data • Dusty Data/Dark Data • Highly inconsistent rulings

7. ELECTRONICALLY STORED INFORMATION IS PREVALENT IN THE CONSTRUCTION INDUSTRY

8. WHERE ESI LIVES • Local computers and Servers • Employees’ devices • Accounting programs • Proprietary construction scheduling programs • The information on these programs • The various iterations of the information on these programs • Industry-specific hardware and software - proprietary programs and similar technology • Texts • Emails • Jobsite photos • Social Media • Everywhere

9. THIS IMPACTS DISCOVERY ON MANY LEVELS

10. ELECTRONIC DISCOVERY MODELONE SIZE FITS ALL?

11. DOCUMENT MANAGEMENT (INFORMATION GOVERNANCE) • Specific Custodians should be identified and assigned in advance. • Create "Project Files“ • Email (folders for each customer or project – at the local drive or on a server) • Central location where everyone saves everything related to the file, rather than on each custodian's machine or device. Assess to disable local storage ability. • Discourage texting, using phone for emails or assigning a company phone that logs and saves these. • Implement auto-back up (an insurance policy just in case specific information is ever sought) • Implement a reasonable purging system for extraneous information to avoid accumulation of duplicative or fluff information, which can be and is immediately disabled if litigation is possible.

12. DOCUMENT MANAGEMENT (INFORMATION GOVERNANCE) • IT and Management work together to understand system mapping, where information is held, in what programs and in what form. • Develop, maintain and implement document retention policies and plans and monitor that employees are following them. • Re-iterate: Have a plan, put it in writing and follow it.

13. When It’s Time to Collect Good Document Management Plan in Place No Document Management Plan in Place Plan for problems. Assess immediately for access to information. Help the client locate custodians, business devices, programs, personal devices, social media. Help the client preserve everything it can practically preserve so nothing is accidentally deletedor lost. • The custodians are limited and identifiable • The devices are limited and identifiable • The programs are known • ESI is organized and structured • Folders identified and utilized • Centralized information housing.

14. DOCUMENT RETENTION POLICIES(document destruction policies) • Written, defensible, reasonable. • Identifies where documentation is stored. • Addresses how everything, including back-up tapes, is handled. • Identifies periodic audits; management in fact conducts audits. • Extraneous documents are purged, making production less costly. • Creates Litigation Preparedness • Creates a basis for defending against claims of wilful spoliation = Purged Pursuant to Policy. • Ideally part of an overall Document Management/Information Governance Plan within management • Must be flexible enough to be suspended in the event of a triggering event.

15. THE TRIGGERING EVENT =THE DUTY TO PRESERVE & THE LITIGATION HOLD TRIGGERING EVENT: subject of much litigation and analysis MOST CONSERVATIVE = SHOULD HAVE KNOWN THE DOCUMENTS MAY BE RELEVANT TO FUTURE LITIGATION The duty to preserve is broader than the duty to produce. The lawyers are now responsible. When Litigation is Imminent, Preservation = Self-Preservation IMPLEMENT A LEGAL HOLD IMMEDIATELY, EVEN AT ENGAGEMENT. Interesting Note in ABA Practice Management: Document and file retention. Given the obligation imposed on attorneys to take affirmative steps to ensure a litigation hold is in place and that data is preserved from the moment it becomes reasonably evident a dispute exists, reference to the client's role in the preservation obligation should be spelled out on engagement. Although the details of the client's obligations should be outlined in a separate document, a cursory reference to the need for the client to safeguard data and cease routine document destruction policies is warranted. Engagement Letters: Beginning A Beautiful Relationship, GPSolo, January/February 2014, at 68, 69

16. THE TRIGGERING EVENT =THE DUTY TO PRESERVE & THE LITIGATION HOLD (continued) Develop a line of communication with IT. Know your client: their network, their policies, the people involved (custodians) and their roles, habits, devices, and procedures: Identify the issues and primary players. Identify the custodians. Identify the devices, programs and types of information. Identify the scope of what may need to be preserved. Initiate the collection before anything is accidentally lost. Actually preserve it! Keep a log of your actions and your decisions and the basis Keep a log of the people you are relying upon. Proportionality is a critical analysis. Send a Preservation Letter to non-client entities When Litigation is Imminent, Preservation = Self-Preservation

17. SOUND THE ALARM When litigation is reasonably anticipated, advise all key personnel to send a firm-wide notice to suspend all deletion processes, auto-deleteor overwrite, and create a back-up of whatever information is reasonably accessible. In the construction industry, litigation is often preceded by months of negotiation and/or mandatory mediation. The client must be instructed at the earliest stages to preserve their information as if litigation were imminent or risk lost data and severe sanctions. Possible Lawsuit?

18. LOCATING, COLLECTING & PRODUCING • These are really going to be addressed at the same time, even though the activities flow in an order. • When locating, you want to be thinking about collecting, and producing. • This is the best stage to identify how the information will be produced. • If you have not already, communicate with opposing counsel and where necessary, seek the judge’s guidance. • The information will be in various forms. • Native production is delivering the information in its original form, with metadata attached. • TIFF or PDF production allows for one “reader” for all documents, but the metadata is not incorporated.

19. DEVELOP A PRODUCTION PLAN • Cooperate and communicate with opposing counsel • Put it in writing. • Any disputes, take to the judge early – before collection completed. • Have a claw-back provision in every production plan. • Identify accessible and inaccessible information. • Agree on custodians, key words, where you are looking. • Maintain transparency about the process; this is not the time to be coy. • Keep updating the discovery plan, keep records of the updates and keep the judge apprised of changes. • Ideally, submit an Agreed Order and get the court’s imprimatur.

20. THE ESI IS JUST “NOT REASONABLY ACCESSIBLE” • A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonable accessible because of undue burden or cost.  • However, even if the ESI is not “reasonably accessible, it must be produced where there is “good cause.” • Good cause determination considers: • Unreasonably cumulative or duplicative • Able to obtained from a source that is more convenient, less burdensome or less expensive • Opportunity for seeking party to obtain the information sought • Burden or expense as weighed against likely benefit (with factors to apply) • Specificity of the request • The quantity of the information • Information likely to have existed but no longer available on more easily accessed sources • Likelihood of finding relevant responsive information – that cannot be obtained from other sources • Likelihood of importance or usefulness of the information • Importance of the issues at stake • Parties’ resources. W.E. Aubuchon Co., Inc. v BeneFirst, LLC, 245 FRD 38 (D. Mass. 2007) Rule 26. Duty to Disclose; General Provisions Governing Discovery (b) Discovery Scope and Limits. (2) Limitations on Frequency and Extent (B)  Specific Limitations of Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonable 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 undone burden or cost.  If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause considering the limitations of Rule 26(b)(2)(C).  The court may specify conditions for the discovery.

21. POLICY BEHIND PROPOSED CHANGES TO RULE 37(e), Fed.R.Civ.P • Reduce the fear and the severity of sanctions. • To provide guidelines for imposing sanctions, providing some relief from that fear – maintain best practices nonetheless. • Address the confusion, create more consistency in sanctionable conduct and in the duty to preserve triggers and requirements. • Encourage cooperation among lawyers and involvement by the judge. The proposed changes are included in the written materials.

22. THE PROPOSED CHANGES • Changes the punishment, allows for curative measures and/or sanctions: • Curative Measures: additional discovery, shift expenses of fees for failure to preserve • Spoliation Sanctions, such as an adverse inference, can only be imposed upon a showing of either • Substantial prejudice and willful or in bad faith; • Irreparably deprived a party of the meaningful opportunity to present/defend claims. • Five Factors for Court to Consider in Duty to Preserve: • Extent to which party on notice litigation likely, information discoverable • Reasonableness of efforts to preserve • Whether request to preserve was clear, reasonable and was there good faith consultation (cooperation?) • Proportionality of preservation efforts • Party timely sought Court’s guidance and direction regarding unresolved preservation disputes, as early as possible.

23. BUT…. The author of the famed Zubulake opinions and standards, the highly respected Honorable ShiraScheinlin, has publicly opposed the changes in her decision in Sekisui American Corp v. Hart.2013 U.S. Dist. LEXIS 84544 (S.D.N.Y. June 10, 2013) identifying concerns with litigants becoming more lax in preservation practices and taking the duty to preserve less seriously. • The six-month comment period ended on February 15, 2014. • They must be approved by US Supreme Court and Congress. • Congress has six months to approve, reject or do nothing. • If Congress takes no action, they will be effective on December 1, 2015. Stay posted in this constantly changing and fascinating world that we lump into the category of “electronic discovery.”

24. Martin Lomasney, an old West End political boss from Boston, is best remembered for his warning to young politicians everywhere — Never write if you can speak; never speak if you can nod; never nod if you can wink.