Wednesday, June 21, 2017 Litigation

Rooms: 312-313 Advising Clients on

Handling Their Electronically Stored Informaiton

10:30 a.m. – 12:00 p.m.

Presented by

Brett Trout Brett J. Trout P.C. 516 Walnut St Des Moines, IA 50309 Hon. Scott Rosenberg Polk Country Courthouse Scott Gratias Gratias Investigations

Christine Branstad Branstad Law PLLC 2501 Grand Ave., Suite D Des Moines, IA 50312 Igor Dobrosavljević Grand Consulting 2411 Grand Ave Des Moines, IA 50312

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Moderator - Brett J. Trout Panelists – Hon. Scott Rosenberg Christine Branstad Esq. - Branstad Law Scott Gratias - Gratias Investigations Igor Dobrosavljević – Grand Consulting

!  Electronic discovery has changed a lot !  No more “winging it” !  If you do not need electronic discovery help

now, you will in the future !  Understanding the basics will help you

prepare for the future !  Courts are awarding larger and larger

sanctions for attorneys failing to understand Electronic Discovery

!  Stored data volume doubles every two years !  Organizations average 49.3 gigabytes of e-

mail data per user !  Bigger discovery volumes even for small

cases !  Lawyers need a way to manage increasing

data loads

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!  Review client storage and deletion procedures !  Develop written document management

procedures !  Destroy unnecessary documents ◦  quickly ◦  on a regular basis

!  Destroy old tapes and old media

◦  Sarbanes-Oxley ◦  Title VII ◦  IRS Rules ◦  Fair Labor Standards Act ◦  Family and Medical Leave Act ◦  Aged Discrimination Act ◦  Americans with Disabilities Act ◦  Employee Retirement and Insurance and Security ◦  Occupational Safety and Health Act ◦  Health Insurance Portability and Accountability ◦  Immigration Reform and Control Act

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!  Retain only necessary documents !  Monitor for non-compliant documents !  Train and monitor employees !  Ensure corporate policies are followed !  Have written plan to respond to document

requests !  Information technology department must be

on board

!  Beyond the Litigation Hold Letter ◦  Identify everyone who has relevant documents and ensure

they are all personally aware that paper and ESI must be preserved ◦  Identify former employees who had relevant documents and

preserve those documents in client’s possession, custody, and/or control ◦  Preserve outdated media it that is only record of ESI

Clients must act diligently and search thoroughly at the time they reasonably anticipate litigation.

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!  Send preservation letter – consider if copy of hard drives is necessary for forensic examination of deleted data

!  Prepare for 26(f) conference ◦  Know more than opposing counsel ◦  Research scope and cost ◦ Anticipate and avoid disputes ◦  Know your client’s ESI management

capabilities

!  Prior to meet and confer research ◦  What you have ◦  What you have to have ◦  What you would like to have ◦  Timelines for each category of documents

!  Prior to meet and confer research ◦  Costs to search and analyze ◦  Breakdown of costs of production by category ◦  What formats you need !  Searchable text !  Preserved data fields

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!  Set budget !  Set firm timelines !  Constant communication with opposing

counsel !  Address problems well before deadlines !  Agree on depositions of records custodians

!  Have a plan from Answer to Closing !  Enlist third-party document management

experts if necessary !  Know your limitations !  Plan on discovery involving far more

documents than you anticipate !  Follow Electronic Discovery Reference Model

!  Best practices for management of electronically stored information (ESI)

!  Focuses on nine areas !  Designed for very large cases !  Philosophy just as applicable to small cases

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!  Designed to reduce risk in the event of a discovery request

!  Treat information as a business asset !  Impellent processes !  Only allow document access to authorized

personnel !  Risk assessment, response, and monitoring !  Track, monitor and assess the success or

failure of the process

!  Identify sources of information !  Determine what data is, how valuable it is,

and for how long !  Determine management plan for data and

data source

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!  Depose opposing party’s information technology personnel to identify ◦  Where the data is stored ◦  How the data is stored ◦  What the data retention policies are

!  Litigation hold !  Delete what needs to be deleted before

litigation imminent using deletion schedules ◦  Different schedules for different documents

!  Preserve potentially e-discovery-relevant ESI after litigation imminent ◦  Stop deletion schedule

!  Collecting data for e-discovery !  Must include all categories that could include

any nonprivileged matter that is relevant to any party's claim or defense

!  Typically a very large amount of data !  Most of this data will not be produced or

presented

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!  Reduce the volume of the relevant ESI ◦  DeNIST – Removes file types unlikely to be valuable !  Executable files !  Font files !  System files ◦  Exclude duplicates ◦  Exclude near duplicates .pdf and .doc with same

info ◦  Email threading – gather all forwards and replies

together !  Conversion: Legacy systems, extraction,

tapes

!  Determine the data's e-discovery relevance !  Technology assisted review (TAR) ◦  Lawyer reviews and tags sample of documents ◦  Software searches more documents for relevance ◦  Lawyer reviews output for relevance ◦  Software is tweaked ◦  Rerun search/train software until no missed docs

!  Team reviews documents above cutoff point

!  Predictive coding ◦  Machine learning process ◦  Uses human-entered information ◦  Applies human analysis to larger dataset ◦  Identifies and and eliminates irrelevant and non-

responsive documents

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!  Metadata !  Keywords !  Relevance score - high occurrence of rare

term !  Concept – synonyms and/or words found

with !  Context – Docs using keyword the same way !  Cluster – Group similar found docs together !  Social – Focus on custodian contacts

!  Keep strategy and scope in mind !  Use at every phase of discovery !  Content and context !  Key patterns and topics !  Set up timelines and budget !  Validate quality and validity of documents

!  Engage IT personnel well prior to meet and confer

!  What do we have? How hard is it to get? Timeframes? Cost?

!  What formats can we produce? !  Does expense outweigh its likely benefit? !  Do we need a third-party to extract docs? !  Rolling discovery: Produce most needed first

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!  Communicate with opposing counsel ◦  File formats: For incorporation w/your software ◦  Searchable text files ◦  Preserve data fields: Filename, creation date, etc. ◦  Marking !  Bates numbers !  Stamps: associating unique number to native file !  Redactions ◦  Maintain production log

!  Identify exhibits ◦  Deposition ◦  Trial

!  Keep trial theme in mind ◦  What ESI will support theme? ◦  How can I get all of this ESI?

!  What impeachment ESI will I need?

!  Be familiar with your courtroom’s technology !  Be aware of sightlines !  Determine minimum readable font size !  Know who has “kill switch” to remove image !  Have backups for all presentation hardware

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!  Convert spreadsheets to graphic format ◦  Have spreadsheet on hand for witness/credibility

!  Know your limits !  Murphy’s Law !  Do not dismiss ELMO – Might be your only

backup

!  Be aware of rules governing friending !  Opposing party !  Witnesses !  Jurors !  Judge

!  Keep abreast of current law ◦  ABA, Standing Committee on Ethics and

Professional Responsibility, Formal Opinion 466 4/24/14 Cannot friend juror to see non-public info

!  Things that store data or connect to the Internet ◦  Watches ◦  Thermostats ◦  Speaker Hub ◦  Fitness Trackers ◦  Lights ◦  Vehicles

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!  2017 - 8.4 billion connected devices !  31% increase over 2016 !  Estimated to be 20.4 billion by 2020

!  Fitness tracking devices ◦  Shows Plaintiff’s physical activity remained normal

during alleged car accident ◦  Demonstrate same level of activity before and after

work injury ◦  Plaintiff’s physical activity remained normal during

alleged rape

!  Nest thermostat ◦  Determine if house was occupied during relevant

time periods !  Alexa ◦  Sounds recorded in home of suspected murder

!  Phones ◦  Track GPS of parties and witnesses

!  Water meter ◦  Excess water usage to wash away blood

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!  May be very difficult to obtain IoT data ◦  Devices may be locked ◦  Data may be aggregated with other confidential

third-party data ◦  Custodian may fight hard to avoid precedent

!  Think about novel ◦  Claims ◦  Legal theories

!  Be prepared to preserve Internet of Things data

!  Make an early demand that Internet of Things data be preserved