1 1 Live Webinar, March 3, 2010 @ 10am PT/noon ET

Making Your Company Bullet-Proof (almost)

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Discussion topics

Making Your Company Bullet-Proof (almost)

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#1. Sources of the highest costs of e-discovery

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Sources of the highest costs of e-discovery Sources b - e are covered in more detail throughout the webinar

a)  Using backup tapes – just barely good for disaster recovery

b)  Privilege foul-ups – losing the protection provided by privilege

c)  Overlapping business & personal texting & emails – poor or non-existent policy management

d)  Cost-shifting – towards yourself because you don’t know how to use the rules to your advantage

e)  Angering the judge – not following e-discovery best practices is a sure way to incite the wrath of the court and possibly lose the case

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Why are backup tapes high cost & high risk?

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#2. Overlooked issues that can cost you the case

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1st some background so you can better understand the overlooked issues

!  ESI is divided into 5 categories (see Zubulake)

!  ESI grouped into 2 tiers – Rule 26(b)(2) -- based on effort & cost needed to access ESI

1.  reasonably accessible 2.  not reasonable accessible (NRA)

"  Keep these categories in mind when requesting ESI or responding to a request

"  But these 5 categories may be obsolete or incomplete with cloud computing, Google Docs, and other new storage environments

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ESI: 5 Categories & 2 Tiers

Tier 1: Reasonably accessible 1.  Active, online data: hard drives, active network servers

2.  Near-line data (near online): optical disk & mag tape

3.  Offline storage & archives: magnetic tape or optical disks; referred to as JBOD (just a bunch of disks)

Tier 2: NRA – but you may need to produce if good cause is shown

4.  Backup tapes, commonly using data compression 5.  Erased, fragmented, or corrupted data

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Sanctions

Sanctions can be wide-ranging – and include any or all of the following:

!  Cost shifting

!  Adverse inference

!  Losing the case

!  Losing an otherwise winnable case

!  Look at 2010 Pension Committee Case for guidance on these issues

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Agreements

Parties may attempt to reduce costs by entering into agreements that will protect against inadvertent disclosure of privileged or protected ESI

1.  Quick-peek 2.  Attorney eyes only 3.  Clawback agreements 4.  FRE 502

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#3. Prepare for a swift & strong response to litigation by knowing the rules

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Rule 1

!  Often overlooked rule !  Provides for the goal in every action:

!  Just !  Speedy !  Inexpensive

"  Reduction of costs through best practices "  Proper planning "  Possible cost shifting

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Rule 16(b) !  Search for relevant ESI must be done no later than the first

pre-trial discovery meeting--within 99 days of the filing.

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Rule 26(a)(l) !  Requires an exhaustive search for all ESI, including e-mail

that’s "in the possession, custody, or control of the party." !  must be disclosed "without awaiting a discovery request” !  "in the possession, custody, or control of the party" has not

been interpreted by the courts !  Requires presenting a copy or description by category &

location of all ESI that the disclosing party may use to support its claims or defences. !  Can an employee’s laptop or BlackBerry device be

considered under the control of the company, even if it’s in a remote location?

!  Where is it all located?

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Rule 26(b) – Meet and Confer

!  Must be properly prepared for this meeting !  Involves IT and Lawyers to properly prepare !  Cases can be won or lost !  Must prepared with what you want and what you

don’t want to give up !  Court may issue proper orders to

!  Protect !  Preserve !  Disclose

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Rule 30(b) Witness

!  A party with ESI should designate a Rule 30(b) witness

!  This avoids numerous and duplicative depositions of employees

!  It is imperative to educate this person on the ESI issues so they may properly be

deposed on the technology/practices issues (See Pension Committee Case)

!  Which files were searched

!  How the search was conducted

!  Who was asked to search

!  What they were told and

!  The extent of supervision

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Rules 33 and 34

!  Rule 33(d) allows party to specify records to be reviewed and location as well as ability to copy

!  Rule 34(b) allows a party to specify the form of ESI to be produced. !  Responding party may object to the form !  If no form is requested, then

!  the form is normally maintained !  a form that’s reasonably useable

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Rule 37(e) Safe harbor

!  Courts may sanction under “inherent power” or Court Rules !  Courts may not sanction parties for ESI "lost as a result of

routine, good faith operation of an electronic information system."

!  To come within the protection of Rule 37(e), a company would have to show that:

(1)  ESI was lost due to the routine operation of an IS, and (2)  the routine operation of the IS was operated in good faith (3)  The extent of sanctions is based upon a continuum of

Fault from simple negligence to gross negligence to wilfulness/reckless conduct. (Pension Committee Case)

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Rule 45

!  Rule 45 applies to non-parties who can be subpoenaed to provide relevant ESI that is is their possession. This can be quite costly and often results in requests for cost shifting. Examples: !  Yahoo !  AOL !  Verizon !  Similar third parties

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#4. The 3 R’s of e-discovery: reasonableness, readiness & ROI

Case law illustrates these 3 concepts

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Qualcomm Inc. v. Broadcom Corp., 2007 !  opinion recommending sanctions for failure of a party to disclose 200,000 emails prior to trial

United Medical Supply Co. v. US, 2007 !  sanctions imposed for failure to adequately preserve ESI because of faulty e-mail communication with contractors

Antithesis of reasonableness: Failing to disclose

There’s virtually no upper-bound on costs & crises when you’re unprepared for litigation or are unable (or don’t know how) to manage e-discovery and meet deadlines.

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Zubulake v. UBS Warburg, 2003 – 2005 employment discrimination

!  You don’t need to preserve ESI on backup tapes that are not reasonably accessible (NRA) and beyond the normal retention times established by your company policy. 2 possible exceptions are:

!  If you can identify backup tapes where specific employee ESI is stored, then you must preserve those tapes, whether the tapes are reasonably accessible or not.

!  If backup tapes are actively being used for info retrieval, then the tapes would likely be subject to a litigation hold.

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Zubulake v. UBS Warburg, 2003 – 2005 employment discrimination

!  If you ask that your opponent pay for production costs (cost-shifting), your request should be reasonable

!  Analysis of the work and costs involved should be grounded in fact, for example based on the results of, ESI data sampling rather than guesswork. You should be able to back up your request with specifics of what you need, with a specific dollar amount.

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Zubulake v. UBS Warburg, 2003 – 2005 employment discrimination

Bottom line ….. At the end of the day, the duty “rests with the party”

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Qualcomm v. Broadcom, 2008 patent dispute

3 clear warnings about e-discovery misconduct 1.  very expensive & stupid

2.  can change the outcome of a case 3.  by attorneys might subject them to discipline affecting their

license to practice

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Lessons from Qualcomm v. Broadcom, 2008

!  Prepare your expert witness and make sure your expert can answer questions

!  Know what your expert witness knows. Hearing it for the first time in court is dangerous.

!  Design, validate, & make sure you understand the data map to minimize the risk of failing to identify & search storage media containing responsive ESI

!  Don’t lie !  Consult external & objective IT experts for their opinions &

help in explaining tech issues

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Victor Stanley v. Creative Pipe, 2008 copyright infringement

Lessons from Grimm’s opinions

!  Be able to show your work

!  Use a reasonable, transparent & defensible ESI review methodology

!  Find and fix your inadvertent disclosures promptly

!  Your counsel should cooperate in attempting to reach non-waiver agreements

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Litigation Hold There is a duty to preserve potentially relevant ESI when litigation

may be “reasonably anticipated” !  This duty is to both discover and preserve !  Must know what and where it is !  Exists before the lawsuit is filed !  Court can issue Preservation Order, but duty may exist

without it !  Best practices and procedures become important in

identifying the what & where !  2010 Pension Committee case attempts to set or at least

explain standards applicable to litigation holds and oversight by counsel

!  Need timely written notice for paper and electronic !  Create mechanism for collection and preservation so they

can be searched by others !  Instructions to “immediately suspend destruction”

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Protecting Privilege, Privacy & Work Product If you get it, can you use it?

!  Must disclose all relevant ESI !  May not have to disclose relevant ESI if it’s privileged or

protected (work product) !  Even if not disclosed, you must prepare a privilege log to

identify what you have, who created it, and why you claim it’s protected.

!  If a party objects to your claim of protection, the judge will make a determination

!  Use of Internet can help keep costs down

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Obligation when inadvertent ESI is involved If you have inadvertently disclosed, or under the circumstances it’s

clear that disclosure was inadvertent, then notify the recipient. !  Recipient must return, sequester or destroy the ESI

!  If the recipient disseminated it, then there is a duty of retrieve !  The recipient may send the ESI to the court to be sealed until

the claim of privilege or protection is determined by the court

!  Some courts have held that it is both a legal and ethical duty to notify the responding party if you receive what you know or have reason to believe is inadvertent disclosure of privileged or protected ESI

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FRE Rule 502

!  Treats inadvertent disclosure as clawbacks

!  It is not deemed a waiver if ESI is inadvertently disclosed

!  Intentional disclosure in a federal case or to a federal agency waives the privilege, but is NOT a subject matter waiver

!  If disclosure that’s meant to mislead is put forth in an unfair manner, it will be considered a subject matter waiver

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Evidentiary Issues: You got it, now can you get it in?

!  Is it relevant under Rule 401

!  Is it authentic under Rule 901(a)

!  Is it hearsay under Rule 801

!  Except under Rules 803, 804 and 807)

!  Is it an original or if a duplicate is there admissible secondary evidence to prove the contents

!  Does the probative value of the ESI substantially outweigh the danger of prejudice or other factors of Rule 403.

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Failure factors, or Why there’s conflict among IT, HR, & legal

!  Ignorance of e-discovery obligations !  No, responding to e-discovery is not optional… !  Yes, you have to preserve those e-mails… !  No, hiding evidence is not the way to win the case..

!  Not enough time for people to do their jobs and deal with e-discovery. Creates too much stress, and too many mistakes and missed deadlines.

!  Lack of strong leadership with the ability to motivate compliance (or cause pain for noncompliance).

!  Bad attitudes (that’s not my job or that’s my job not yours) & blame-shifting—both related to all of the above

Left unmanaged or uncontrolled, there’ll be no end to conflict.

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Reducing the Failure Factors: Where to start

!  Be prepared. Implement and enforce ESI retention policies. Provide training to create awareness of e-discovery priorities.

!  Use a project management approach !  Know who you’re going to call (the ghostbuster

approach). Create collaborative relationships with a vendor(s), consultant(s), expert(s), etc. for the long-term.

!  Read a good (best) e-discovery reference book & refer to it often.

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Checklist of cost-related questions

!  Are you asking the right questions? !  Are you getting answers to the questions you asked?

!  What is the cost vs how to control costs? !  How do you preserve the memory about what worked

and what didn’t? !  What did you learn? How will you remember?

!  Who’s going to help you when crisis hits? !  Are you prepared for the last minute disaster or

surprise change in scope?

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Questions & comments

!  Ian J. Redpath, the expert lawyer !  Linda Volonino, the IT & computer forensics expert !  J. David Morris, EMC moderator