David P. Hathaway, Esq.

SpecialFocus on Technology

Making Sense of E-Discovery:10 Steps for Producing ESI - Part 1

H

ave you ever been handed a detailed flow-chart on electronically stored information(ESI) and wondered what to make of it?

Have you read case law summaries about ESI andthought, "How do I actually apply this holding tomy practice?" And when you do produce ESI, isthere any concern whether the methods you usedwould pass muster if critiqued by a federal judge?

When the next big case comes in, have a plan tomake sure you do everything right. Of course,you will have to tailor your methods and bud-get to the size of the case, but at least some ESIwill come into play any time communications orstored data might become evidence. If producingESI takes you out of your comfort zone, here are10 steps that might work for you.

1. Prepare your team. As soon as you staff the casewithin your office, hold a team meeting to discussthe nature of the case and what kinds of ESI mightbe relevant to prove the claims and defenses. Besure to include everyone in the meeting, suchas a shareholder, an associate, and a paralegal.In discussing ESI, consider not just computers,but other things like workplace video cameras,parking garage entry logs, and other records keptelectronically. You should stress the importanceof keeping a journal at your law office to track allthe decisions you make regarding ESI. The jour-nal needs to be easily accessible by everyone onyour team and should be updated regularly. Infact, the minutes from your meeting should bethe first entry in the ESI journal.

You may also want to review social media and runGoogle searches on anyone who is likely to be de-posed, and print everything immediately in case itbecomes unavailable later. You should also be surea spoliation notice is mailed to opposing counseland a preservation letter or "litigation hold" lettergoes to the client. Make them short and under-standable, with possible inclusion of social net-working sites as part of the litigation hold.

2. Meet with the client. Set up a conference at yourclient's office to review its organizational chart anddiscuss how information is stored electronicallyamong various people and locations. The client'sdecision maker should attend, as well as the per-son most familiar with the issues in the litigation,and a member of the information technology (IT)department who knows how much work goes intocollecting data. Keep in mind that the IT personmay be more optimistic at this meeting in front of

his boss than he might be when you talk to himon the phone in private. Bring your team and, ifnecessary, someone from your IT department whocan ask some of the technical questions.

Keep in mind that the producing party usuallypays for ESI, and though your client may beweighing the cost of being thorough against therisk of sanctions, you are ethically required notto let the client cut corners. Explain to the clientwhat the rules of civil procedure require, and notethat you can save costs by working with opposingcounsel to limit the scope of the search. Recordeverything in your journal, and be sure the clienthas properly implemented the litigation hold inall relevant departments and among all informa-tion systems. You might also go over the client'sdata retention policy to be sure it is simple, en-forceable, and actually being enforced.

3. Interview the employees. You will probably learnthe names of the employees who might have in-formation relevant to the case. You should inter-view them and find out which devices they usein performing job duties as well as the differentforms of communication. For example, they mayuse some combination of email, instant messag-ing, home computers, voicemail, text, cloud stor-age, social media, special software programs, andperhaps log books where other data is recorded.

If the employees are heavy users of online net-working, you might advise them not to makestatements online that could impact the case. Youmay want to increase their security settings andadvise that anything they have accessed as part ofthe job is subject to being searched. You shouldalso find out whether employees are new to thejob and, if so, whether their predecessors mayhave some of the information.

Take detailed notes for your journal, and be surethe employees are properly observing the litiga-tion hold implemented by the company. You haveto be the watchdog because, although employeesmay seem helpful and willing, they might not trytheir hardest on completing tasks that don't fallwithin their job description. Make a checklist ofall the sources of information they have identifiedand, for anything outside the company premises,write down how and when they plan to provideit to you.

If one or more employees are no longer with thecompany, the IT department should be able to

continued page 35theBriefs March 2014 Vol. 82 No. 3 www.orangecountybar.org PAGE 13

ida Bar, the president and president-electof the Young Lawyers Division, individualselected by bar members from each of the20 state judicial circuits, four out-of-staterepresentatives, and two public membersappointed by the Florida Supreme Court.The Board of Governors has exclusive au-thority to formulate and adopt mattersof policy concerning the activities of thebar, subject to limitations imposed by theRules Regulating The Florida Bar. All boardmembers serve without pay.

And last but not least, the Orlando officeof Greenberg Traurig LLP receivedfirst-tier rankings in eight practice areas inthe US. News-Best Lawyers 2014 edition

of "Best Law Firms." The practice areasrecognized in the firm's Orlando office in-clude: Commercial Litigation, Construc-tion Law, Litigation - Patent, Litigation -Real Estate, Mergers & Acquisitions Law,Public Finance Law, Real Estate Law, andTax Law. Nationally, this marks the thirdconsecutive year that Greenberg Traurigreceived the most overall first-tier rank-ings and the most first-tier metropolitanrankings. Greenberg Traurig also receivedthe "Law Firm of the Year" designation forits Government Law and Policy and RealEstate Litigation practice groups as a resultof an impressive overall performance in theevaluation process.

That concludes this month's presentation.As always, if you have any exciting newsabout yourself or your fellow OCBA mem-bers, please feel free to send them to ourcommunications manager, Peggy Storch,at peggys@ocbanet.org, or to me at chris@tadyates.com . Or feel free to stop and seeme in person at our new and improved of-fices in College Park. See you next month!

Christine A. Wasula, Esq., Law Offices of TadYates, P.A., has been a member of the OCBAsince 2003.

TechnologyMaking Sense of E-Discovery — Part 1continued from page 13

identify what data they had when employed, as well as anythingthey may have downloaded and taken with them.

4. Outline the plan. You need to think about three things: what ESIyour client has, what issues are relevant to the lawsuit, and whatyour obligations are under the Federal Rules of Civil Procedure,the Federal Rules of Evidence, and state law.

Generally speaking, FRCP 16 requires you to know how to pro-duce ESI so that agreements can be made for scheduling orders.

FRCP 26 requires discovery to be proportional to "the needs of thecase" as measured by a cost-benefit analysis. It limits discovery ofESI from sources that are "not reasonably accessible," but of courseyour client cannot deliberately make its data "not reasonably acces-sible." It also tightens the definition of relevancy to the claims anddefenses at issue and not simply to anything that "appears reason-ably calculated to lead to" the discovery of admissible evidence.

FRCP 33 specifically allows the production of ESI in response tointerrogatories, and FRCP 34 explains how ESI should be producedin response to a document request. Often the requested form is na-tive file because those files tend to reveal the most, and you mightnot have the software necessary to view ESI in other forms.

FRCP 37 allows judges to impose sanctions for discovery abus-es, but includes a safe harbor for ESI that is no longer availablethrough no fault of your own.

FRCP 45 protects non-parties from some of the costs and burdensof e-discovery similar to the rules governing parties.

FRE 502 protects attorney-client privileged communications andexcuses inadvertent disclosures if you took reasonable steps to pre-vent the error and quickly attempted to remedy it. You may wantto enter into a "clawback agreement" from the outset to give morereliability than Rule 502 which hinges on reasonableness and in-advertence.

FRE 901 requires that evidence be authenticated to verify that itis what it claims to be, and metadata can be used in that respectfor ESI. These federal rules have generally been incorporated intoFlorida Rules of Civil Procedure 1.200, 1.201, 1.280, 1.340, 1.350,1.380, and 1.410, although there is no state "meet and confer" re-quirement. In reviewing these rules and outlining your discoveryplan, you should name the custodians and ESI sources, noting whatyou believe would be unduly burdensome, not reasonably acces-sible, or otherwise limited by the proportionality rules.David P. Hathaway, Esq., Dean, Mead, Egerton, et al., has been a memberof the OCBA since 2002.

Lilburn R. Railey III

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ibeBriefs March 2014 Vol. 82 No. 3 www.orangecountybar.org PAGE 35