E-DISCOVERY

ISSUES and PROPOSED SOLUTIONS

I. THE SCOPE OF EDISCOVERY PROBLEMS

HOW OFTEN DO WE SEE THEM? WHAT KINDS OF CASES DO WE SEE THEM IN? HOW BIG ARE THE PROBLEMS WHEN THEY ARISE?

KEY PROBLEM AREAS THAT MAKE E-DISCOVERY DISPUTES SUCH A BIG DEAL
PRESERVATION AND SPOILATION SCOPE, FORM AND COST OF PRODUCTION PRIVILEGE

WHEN THE E-DISCOVERY PROBLEMS ARISE, THEY ARE A BIG DEAL

THEY CONSUME A TREMENDOUS AMOUNT OF THE PARTIES TIME AND MONEY THEY CONSUME A TREMENDOUS AMOUNT OF THE COURTS TIME

WHY ARE THESE PROBLEM AREAS MORE SIGNIFICANT WITH E-DISCOVERY THAN WITH TRADITIONAL PAPER DISCOVERY?
BECAUSE OF THE ENORMOUS VOLUME AND MANY SOURCES OF E-INFORMATION

THE VOLUME OF ELECTRONIC INFORMATION

95 PERCENT OF ALL INFORMATION IN THE UNITED STATES IS GENERATED IN DIGITAL FORM

80-90% OF DISCOVERABLE INFORMATION IS IN THE FORM OF E-MAIL MUCH OF THIS INFORMATION IS NEVER REDUCED TO HARD COPY FORM

SOME TYPES OF ELECTRONIC EVIDENCE

ACTIVE DATA METADATA SYSTEM DATA OFF-LINE ARCHIVAL DATA OFF-LINE BACKUP OR DISASTER RECOVERY DATA ERASED, FRAGMENTED OR DAMAGED (RESIDUAL) DATA CLOUD DATA

SOME OF THE MANY LOCATIONS OF E-INFORMATION

OFFICE COMPUTERS (DESKTOPS, LAPTOPS AND WORKSTATIONS) OFFICE NETWORK SERVERS OFFSITE SERVERS REMOVABLE STORAGE DEVICES FAX MACHINES AND PRINTERS PERSONAL COMPUTERS AT HOME THIRD PARTY COMPUTERS PDAs AND CELL PHONES INTERNET SERVICE PROVIDER SERVERS

THERE ARE MANY POSSIBLE LOCATIONS FOR A SINGLE FILE

AN INDIVIDUAL USERS OFFICE COMPUTER AN INDIVIDUAL USERS CD OR FLOPPY AN INDIVIDUAL USERS HOME COMPUTER ATTACHMENT TO E-MAIL SENT BY USER ATTACHMENT TO RECIPIENTS E-MAIL COMPANYS NETWORK-SHARED FOLDER COMPANYS BACK-UP TAPES

THOSE LOCATIONS CAN HOLD PLENTY OF E-INFORMATION

EVEN A LITTLE FLOPPY DISK HOLDS 1.44 MBs, OR THE EQUIVALENT OF 720 TYPED PAGES A CD-ROM HOLDS 650 MBs, OR THE EQUIVALENT OF 325,000 TYPED PAGES ONE GIG HOLDS THE EQUIVALENT OF 500,000 TYPED PAGES LARGE NETWORKS CREATE BACKUP TAPES MEASURED IN TERABYTES -- WHICH EQUALS 1,000,000 MBs, OR THE EQUIVALENT OF 500 BILLION TYPED PAGES

AND IN FACT THEY DO CONTAIN LOTS OF INFORMATION

E-DOCUMENTS ARE EASY TO CREATE, LEADING TO MULTIPLE DRAFTS E-MAIL REPLACES TELEPHONE AND WATER-COOLER CONVERSATION E-DOCUMENTS ARE CHEAP TO STORE E-DOCUMENTS ARE HARD TO DESTROY

WHAT PROBLEMS DOES THIS CAUSE FOR PRESERVATION, PRODUCTION AND PRIVILEGE?
MORE POSSIBLE PLACES TO LOOK MORE DATA TO SIFT THROUGH MORE DATA THAT IS DIFFICULT TO ACCESS MORE RISK OF PRODUCTION OF PRIVILEGED INFORMATION MORE OPPORUNITIES TO GATHER USEFUL DATA MORE OPPORTUNITIES TO MAKE ERRORS IN PRODUCTION

PRESERVATION AND SPOILATION PROBLEMS

WHEN DOES A PARTYS PRESERVATION OBLIGATION BEGIN? WHAT CAN BE JETTISONED WITHOUT RISKING A CHARGE OF SPOILATION? WHAT IS THE APPROPRIATE BALANCE BETWEEN PRESERVING POTENTIALLY RELEVANT INFORMATION WITHOUT IMPOSING UNDUE COST AND DISRUPTION?

CONSEQUENCES OF SPOILATION
A spoliation sanction is proper where:
(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.
Ernest v. Lockheed Martin Corp., 2008 U.S. Dist. LEXIS 59985, at *3 (D. Colo. July 28, 2008)

Some states recognize spoliation of evidence as an independent tort

See, e.g., Hadi v. State Farm Ins. Co., 2008 U.S. Dist. LEXIS 28177, at *6 (S.D. Ohio Mar. 11, 2008)

PRODUCTION PROBLEMS
HOW FAR MUST A PARTY GO IN LOOKING FOR E-INFORMATION? BACK-UP TAPES? DELETED DATA? CAN A PARTY FOCUS THE SEARCH USING PROTOCOLS (SUCH AS KEY WORDS AND DATE PARAMETERS)? IN WHAT FORM MUST E-INFORMATION BE PRODUCED? DOES THE METADATA HAVE TO BE PRODUCED? AT WHAT POINT SHOULD THERE BY COSTSHIFTING?

SOME PRIVILEGE PROBLEMS

WHAT IS THE LIKELIHOOD THAT PRIVILEGED INFORMATION WILL BE INDISCRIMINATELY INTERMINGLED WITH THE RESPONSIVE DOCUMENTS FOUND? HOW CAN A RESPONDING PARTY PROTECT PRIVILEGE WITHOUT BREAKING THE BANK? HOW CAN A PARTY DO THAT WITHOUT RISKING WAIVER?

PRIVILEGED MATERIAL
Sheer volume of electronic discovery may result in inadvertent disclosures inadvertent disclosure of privileged information does not automatically result in waiver of the privilege.
Pinnacle Pizza Co. v. Little Caesars Enter., Inc., 2007 U.S. Dist. LEXIS 48845 (D. S.D. July 3, 2007)

ABA LITIGATION SECTION SURVEY -- 2012

22% DID NOT KNOW IF THEIR CLIENTS HAD ELECTRONIC RECORDS COLLECTIONS
40% BELIEVED THEY DID 83% SAID THEIR CLIENTS LACKED PROCEDURES TO SEARCH FOR E-INFORMATION IN RESPONSE TO DISCOVERY REQUESTS 75% SAID THEIR CLIENTS DID NOT KNOW THAT ELECTRONIC RECORDS ARE DISCOVERABLE

ABA/CORPORATE COUNSEL ASSOCIATION SURVEY 2012

92% OF RESPONDING COMPANIES HAD
ELECTRONIC RECORDS

40% HAD AN ELECTRONIC RECORDS MANAGEMENT PROGRAM

28% MONITORED COMPLIANCE WITH THE PROGRAM

APPROACHES TO DEALING WITH E-DISCOVERY PROBLEMS

CASE-BY-CASE ADJUDICATION RULE MAKING

CASE LAW REACTS TO AN EDISCOVERY PROBLEM ARISING IN A SPECIFIC CASE

WE NEED TO DEAL WITH EDISCOVERY PROBLEMS PROACTIVELY, BY LOCAL RULE

RULES SHOULD TRY TO FORCE PARTIES TO ADDRESS EDISCOVERY EARLY IN THE CASE, AND TO REACH AS MUCH AGREEMENT AS POSSIBLE ON ISSUES OF PRESERVATION, PRODUCTION AND PRIVILEGE

II.

ADDRESSING THE PROBLEMS OF PRESERVATION AND SPOILATION

Document Preservation
Duty to preserve arises when there is a claim. Absent claim, business reasons and compliance laws dictate what is retained. Preservation duty extends to all documents within a parties posession, custody or control. Fed. R. Civ. P. 34(a)(1).

MEDIA COSTS
$50 per tape x 125 servers x 1 e-mail backup tape = $6,250 per day to preserve daily tapes Weekly backups plus incremental backups during week; recycled every 30-60 days

BUSINESS DISRUPTION
Cant delete e-mail Must segregate e-mail by topic Cant turn on computer

TRANSACTION COSTS
A litigation hold must be disseminated and monitored
A litigation hold is a process which an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated.

Identifying the boundaries of the duty to preserve involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved?
Zubulake v. UBS Warburg LLC, 220 F.R.D 212 (S.D.N.Y. 2003) (Zubulake IV)

THE WHEN PROBLEM

Choosing the right litigation hold date Speedy implementation Preserving newly created data

THE WHAT PROBLEM

What do you exactly preserve?
Custodians involved Volume of information Metadata?

Response to Anticipated Litigation / Discovery Request

Determine the Scope and Sources of Documents
Active Data Visible in directories or applications Recycle Bins History Files Latent Data

Deleted Files Temporary Files Printer Spools Meta Data Hard Drive

Archival Data Back Up Tapes CDs Zip Disks Network Servers

THE MULTIPLE FACTORS

The risk of destruction (including proof of prior spoliation) Content of any destroyed documents (were they discoverable)

The burden of preservation

III. ADDRESSING THE PROBLEMS OF PRODUCTION OF E-INFORMATION

DEFINING THE PROBLEM

ALL-TOO-COMMON BACK UP THE TRUCK REQUESTS, AND EQUALLY COMMON ROTE OBJECTIONS IN RESPONSE, CAN CREATE PROBLEMS EVEN WITH PAPER DISCOVERY THE PROBLEMS CREATED BY THOSE KINDS OF REQUESTS AND RESPONSES INTENSIFY IN THE WORLD OF E-DISCOVERY

THE HIGH COST AND BURDEN OF REVIEWING E-INFORMATION

THE PRODUCING PARTY REVIEWS LARGE AMOUNTS OF E-INFORMATION FOR RESPONSIVENESS AND PRIVILEGE THE REQUESTING PARTY REVIEWS LARGE AMOUNTS OF E-INFORMATION THAT ARE PRODUCED

SOME IDEAS FOR GETTING PRODUCTION OF EINFORMATION UNDER CONTROL

STEP ONE: GET THE PARTIES TO CONFRONT E-DISCOVERY ISSUES EARLY

CONFRONTING E-DISCOVERY ISSUES EARLY CAN INCLUDE, FOR EXAMPLE, THE PARTIES EXCHANGING INFORMATION ABOUT THEIR COMPUTER SYSTEMS, IDENTIFYING E-DISCOVERY TECHNICAL POINT PERSONS, DISCUSSING THE TYPES OF E-DATA THAT WILL BE SEARCHED AND PRODUCED AND IN WHAT FORMAT

ARE YOU ASKING FOR TROUBLE BY MAKING PARTIES ADDRESS SOMETHING THEY OTHERWISE MIGHT DUCK AND THUS NOT PLAGUE YOU WITH?
THE RULES CHANGES ARE DESIGNED TO PULL LITIGANTS HEADS OUT OF THE SAND SO THEY MAY NOT KEEP DUCKING ANYWAY

AND IT WILL BE EASIER TO CONTROL EDISCOVERY MORE EFFECTIVELY IF POTENTIAL DISPUTES ARE ADDRESSED EARLY, BEFORE THE DISCOVERY HORSE HAS LEFT THE BARN

DEALING WITH DISPUTES ABOUT E-PRODUCTION

AN OLD-SCHOOL APPROACH: YOU CHOSE HOW TO KEEP YOUR DOCUMENTS, SO IF IT IS COSTLY TO FIND AND PRODUCE RESPONSIVE ONES, TOO BAD. CROWN LIFE INS. CO. V. CRAIG, 995 F.2D 1376 (7TH CIR. 1993); IN RE BRAND NAME PRESCRIPTION DRUGS ANTITRUST LITIG., 1995 WL 360526 (N.D. ILL. 06/15/95) THIS APPROACH IS TEMPTING FOR ITS SIMPLICITY BUT AS A GENERAL APPROACH, IS IT CONSISTENT WITH RULE 26(b)(2) BALANCING OR WITH THE IMPENDING FRCP AMENDMENTS? IF YOURE NOT GOING TO ROUTINELY RESOLVE DISPUTES THIS WAY, WHAT DO YOU DO?

GET THE NECESSARY INFORMATION

AS IN OTHER ENDEAVORS, KNOWLEDGE IS POWER HERE, KNOWLEDGE GIVES YOU THE POWER TO RESOLVE THESE DISPUTES INTELLIGENTLY, NOT BLINDLY WHAT KNOWLEDGE DO YOU NEED?

 FORCE REQUESTING PARTIES TO EXPLAIN WITH SPECIFICITY WHAT THEY WANT, AND WHY FORCE RESPONDING PARTIES TO EXPLAIN WITH SPECIFICITY WHY THEY OPPOSE THE REQUEST (e.g., TOO MUCH OF A GOOSE CHASE, DUPLICATIVE, TOO COSTLY AND BURDENSOME) FORCE THE PARTIES TO GIVE YOU GOOD TECHNICAL INFORMATION SO YOU CAN ASSESS CLAIMS OF BURDEN AND COST

EXAMPLES OF TECHNICAL INFORMATION YOU MAY NEED

THE NUMBER OF ACTIVE COMPUTERS OR SYSTEMS (e.g., A FEW COMPUTERS OR A NETWORK OF HUNDREDS) THE BACKUP OR ARCHIVAL TAPES (e.g., HOW ARE THEY ORGANIZED, HOW OFTEN ARE THEY RECYCLED) THE ELECTRONIC SEARCH CAPABILITIES (e.g., WORD, TIME, AUTHOR) THE E-INFORMATION RETENTION PERIOD

SOME WAYS TO GET THE TECHNICAL INFORMATION

LAWYER PRESENTATIONS MIGHT NOT BE ENOUGH YOU CAN GET INFORMATION DIRECTLY FROM PARTIES COMPUTER CONSULTANTS OR EXPERTS, BY WAY OF DECLARATION, DEPOSITION OR INCOURT TESTIMONY YOU CAN APPOINT A COURT EXPERT TO HELP YOU WITH TECHNICAL ISSUES

ONCE YOU GET THE NECESSARY INFORMATION, WHATS NEXT?

EVEN THOUGH THE RULES PRESUMPTIVELY LIMIT DISCOVERABLE MATERIAL TO INFORMATION RELEVANT TO CLAIMS OR DEFENSES, FEW REQUESTS WILL WHOLLY FAIL THAT STANDARD THAT IS WHY THE CASE LAW AND STANDARDS LARGELY HAVE FOCUSED ON THE RULE 26(b)(2) ANALYSIS AND THERE ARE PLENTY VARIATIONS TO CHOOSE FROM

CURRENT VERSION OF FRCP26(b)(2)(B)(iii)

COURTS SHALL LIMIT DISCOVERY WHERE THE BURDEN OR EXPENSE OF THE PROPOSED DISCOVERY OUTWEIGHS ITS LIKELY BENEFIT, TAKING INTO ACCOUNT THE NEEDS OF THE CASE, THE AMOUNT IN CONTROVERSY, THE PARTIES RESOURCES, THE IMPORTANCE OF THE ISSUES AT STAKE IN THE LITIGATION, AND THE IMPORTANCE OF THE PROPOSED DISCOVERY IN RESOLVING THE ISSUES. THE RULE ALLOWS A COURT TO CONDITION DISCOVERY ON COST SHIFTING

8-FACTOR TEST IN ROWE ENTERTAINMENT, INC. v. WILLIAM MORRIS AGENCY, INC., 205 F.R.D. 421 (S.D.N.Y. 2002) (MJ FRANCIS)
(1) THE SPECIFICITY OF THE DISCOVERY REQUESTS; (2) THE LIKELIHOOD OF DISCOVERING CRITICAL INFORMATION; (3) THE AVAILABILITY OF SUCH INFORMATION FROM OTHER SOURCES; (4) THE PURPOSES FOR WHICH THE RESPONDING PARTY MAINTAINS THE REQUESTED DATA; (5) THE RELATIVE BENEFIT TO THE PARTIES OF OBTAINING THE INFORMATION; (6) THE TOTAL COST ASSOCIATED WITH PRODUCTION; (7) THE RELATIVE ABILITY OF EACH PARTY TO CONTROL COSTS AND ITS INCENTIVE TO DO SO; AND (8) THE RESOURCES AVAILABLE TO EACH PARTY.

7-FACTOR TEST FROM ZUBULAKE v. UBS WARBURG LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) AND 216 F.R.D. 280 (S.D.N.Y. 2003) (DJ SCHEINDLIN)
1. THE EXTENT TO WHICH THE REQUEST IS SPECIFICALLY TAILORED TO DISCOVER RELEVANT INFORMATION; 2. THE AVAILABILITY OF SUCH INFORMATION FROM OTHER SOURCES; 3. THE TOTAL COST OF PRODUCTION, COMPARED TO THE AMOUNT IN CONTROVERSY; 4. THE TOTAL COST OF PRODUCTION, COMPARED TO THE RESOURCES AVAILABLE TO EACH PARTY; 5. THE RELATIVE ABILITY OF EACH PARTY TO CONTROL COSTS AND ITS INCENTIVE TO DO SO; 6. THE IMPORTANCE OF THE ISSUES AT STAKE IN THE LITIGATION; AND 7. THE RELATIVE BENEFITS TO THE PARTIES OF OBTAINING THE INFORMATION. UNDER THIS TEST,AFTER REVIEWING SAMPLE OF E-MAILS FOR 5 DATES, ASSESSED PLAINTIFF 25% OF COST OF RESTORING 77 BACKUP TAPES; BUT MADE DEFENDANT PAY FULL COST OF RESTORING OTHER BACKUPS ON SEARCHABLE OPTICAL MEDIA.

PROPOSED 7-FACTOR TEST FOR DETERMINING GOOD CAUSE

(1) THE SPECIFICITY OF THE DISCOVERY REQUEST; (2) THE QUANTITY OF INFORMATION AVAILABLE FROM OTHER AND MORE EASILY ACCESSED SOURCES; (3) THE FAILURE TO PRODUCE RELEVANT INFORMATION THAT SEEMS LIKELY TO HAVE EXISTED BUT IS NO LONGER AVAILABLE; (4) THE LIKELIHOOD OF FINDING RELEVANT, RESPONSIVE INFORMATION THAT CANNOT BE OBTAINED FROM OTHER, MORE EASILY ACCESSED SOURCES; (5) PREDICTIONS AS TO THE IMPORTANCE AND USEFULNESS OF THE FURTHER INFORMATION; (6) THE IMPORTANCE OF THE ISSUES AT STAKE IN THE LITIGATION; AND (7) THE PARTIES RESOURCES.

WHEN IS E-INFORMATION NOT REASONABLY ACCESSIBLE?

BACKUP TAPES, LEGACY DATA ON OBSOLETE SYSTEMS AND DELETED DATA UNDUE BURDEN AND COST FROM EFFORTS TO RECOVER AND RESTORE E- INFORMATION: BUT, NOT FROM REVIEWING IT FOR RESPONSIVENESS OR PRIVILEGE INFORMATION IS NOT REASONABLY ACCESSIBLE IF IT IS NOT ACTIVE, OR NOT SET UP TO BE ACCESSED IN THE ORDINARY COURSE OF BUSINESS

DOES THAT MEAN PROPORTIONALITY IS IRRELEVANT TO E-INFORMATION THAT IS REASONABLY ACCESSIBLE?

NOT UNDER EXISTING LAW

ZUBULAKE SAID THAT WHETHER PRODUCTION OF E-INFORMATION WOULD BE UNDULY BURDENSOME OR EXPENSIVE TURNS PRIMARILY ON WHETHER IT IS KEPT IN AN ACCESSIBLE OR INACCESSIBLE FORMAT

BUT SINCE THEN, JUDGE SCHEINDLIN HAS SAID THAT SHE DID NOT MEAN THAT ACCESSIBLE DATA IS AUTOMATICALLY OUTSIDE THE PROPORTIONALITY ANALYSIS ALTHOUGH SHE SAID IT WOULD NOT ORDINARILY LEAD TO COST SHIFTING

IF YOU ARE PERSUADED THAT THE REQUESTING PARTY SHOULD BE ABLE TO GET DISCOVERY BUT ARE ALSO PERSUADED THAT THE PARTICULAR REQUEST IMPOSES TOO MUCH COST AND BURDEN, WHAT ARE SOME APPROACHES YOU CAN TAKE TO ACCOMMODATE BOTH INTERESTS?

NARROWING WHAT IS SOUGHT IN THE REQUEST

LIMITING THE SEARCH TO CERTAIN DATES OR DATE RANGES, PERSONS OR WORDS WIGINTON v. CB RICHARD EILLIS, INC., 229 F.R.D. 568 (N.D.ILL. 2004) (INITIALLY LIMITED SEARCH TO 98 TERMS, THEN TO 8 AS A SAMPLE) ALEXANDER v. FBI, 194 F.R.D. 316 (D.D.C. 2000) (LIMITED SEARCH SOUGHT BY PLAINTIFFS OF E-MAILS FOR 47 PERSONS USING 37 SEARCH TERMS TO 33 PERSONS AND 20 SEARCH TERMS)

LIMITING WHERE THE RESPONDENT MUST LOOK

LIMITING THE SEARCH TO ACTIVE DATA, OR SUBSETS OF IT TARGETING SPECIFIC BACKUP TAPES NOTE: THIS DOES NOT HAVE TO BE A ONETIME, ALL OR NOTHING DECISION. IT CAN BE PART OF AN INCREMENTAL, OR STAGED, APPROACH THAT YOU CAN RE-EVALUATE AT DIFFERENT POINTS IN THE PROCESS

 ROWE (ALLOWED PLAINTIFFS TO OBTAIN, AT THEIR EXPENSE, RESTORATION AND PRODUCTION OF E-MAILS DELETED FROM ACTIVE SYSTEM BUT STILL ON BACKUP)

IN DECIDING WHETHER COST SHIFTING IS APPROPRIATE, YOU CAN CONSIDER WHETHER IMPORTANT INFORMATION WAS DELETED AFTER A LITIGATION HOLD SHOULD HAVE BEEN IMPLEMENTED

IF YOU DECIDE TO COST SHIFT, WHAT COSTS ARE SHIFTED?

SEDONA SAYS THE COSTS OF RETRIEVING AND REVIEWING THE INFORMATION SHOULD BE SHIFTED. SEDONA PRINCIPLE 13 AND COMMENTARY 13(a)

BUT CASES GENERALLY SHIFT ONLY THE COST OF RETRIEVAL, AND NOT COST OF REVIEW (see e.g., ZUBULAKE, ROWE). ONE COURT HAS IMPLIED THAT SOME COST SHIFTING FOR PRIVILEGE REVIEW MAY BE APPROPRIATE, CHIMIE V. PPG INDUS. INC., 218 F.R.D. 416 (D. DEL. 2003), BUT NONE HAVE ORDERED IT IN REPORTED CASES

 REMEMBER THAT COST-SHIFTING DOES NOT HAVE TO BE AN ALL-ORNOTHING PROPOSITION SEE, E.G., ZUBULAKE (25% OF COST SHIFTED TO PLAINTFF); WIGINTON (75% OF COST SHIFTED TO PLAINTIFFS); MEDTRONIC SOFAMOR DANEK, INC. (40% OF COST SHIFTED TO PLAINTIFF)

DISPUTES CONCERNING THE FORM OF PRODUCTION

DOES THE E-INFORMATION HAVE TO BE PRODUCED IN A SEARCHABLE FORMAT? DOES THE E-INFORMATION HAVE TO BE PRODUCED IN MULTIPLE FORMATS?

IV. ADDRESSING THE PROBLEMS OF PRIVILEGE

COSTS OF REVIEW
Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005) In re Baycol Products Litigation, 2003 WL 22023393 (D. Minn.) (costs of imaging, coding, and privilege review estimated to be greater than $1 million)

RISK OF WAIVER
Actual waiver
Wide dissemination of e-documents

Inadvertent waiver
Inadequate labeling and segregation Volume of e-documents

3 APPROACHES TO WAIVER
Strict liability
Bowles v. Natl Assn of Home Builders, 224 F.R.D. 246 (D.D.C. 2004)

To err is human
Premier Digital Access v. Central Telephone Co., 360 F. Supp. 2d (D. Nev. 2005)

Balancing
Ferko v. Natl Assn for Stock Car Auto Racing, 218 F.R.D. 125, 135 (E.D. Tex. 2003)

BALANCING FACTORS
Reasonableness of precautions Time taken to rectify error Scope of discovery Magnitude of disclosure Overarching issues of fairness

TIPPING THE BALANCE

Flexibility re precautions
Electronic search for privileged documents

Emphasis on volume of electronic documents Emphasis on relative, not merely absolute, number of documents disclosed

E-Discovery and the Cloud

Cloud USER, not PROVIDER, has responsibility to preserve and produce data.

Where do we look for guidance:

Sedona Conference, including working paper on cloud computing Federal and State Rules Recent Case Law

E-Discovery Issues in the Cloud

Data Storage Retrieval Format Metadata Location / Jurisdiction Both Time and Cost are critical for each step must be evaluated

E-Discovery in the Cloud

Rackspace.com and Amazon do not provide E-Discovery support. Some vendors (e.g. X1 Discovery) claim to be able to search enterprise data across an Infrastructure as a Service (IaaS) cloud. Otherwise, the cloud data may need to exported for preservation and review. SUGGESTION: Consider simulating an eDiscovery event before litigation arises.

E-Discovery Questions for Cloud Providers

What analytical tools are available to search/organize the cloud data for relevance? How will the identified data be collected? What metadata is available for analysis or production? What forms of production outside the Cloud are available? Costs of these steps?

What about Free Cloud Providers?

Highest levels of use.
Gmail, YouTube, Facebook, Google Docs, Hotmail, Windows Live, Drop Box, Evernote, Acrobat.com 4 million businesses use Google Apps Standard Terms of Service (TOS) are nonnegotiable and subject to change Some effort to make collection easier (Download my Facebook and Gmail export). However, not all data (and metadata) necessarily gets downloaded.

 Most cloud service providers are covered Covered providers may not release communications even when served with a subpoena May only do so with lawful consent of subscriber Proper course is to direct subpoena / document request to subscriber

The Stored Communications Act

The Cloud Ate My Homework !

Do litigants face spoliation sanctions for data lost by a cloud provider?

Lost Data
No cases yet Test will likely turn on whether the litigant and/or the Cloud provider took reasonable steps to prevent spoliation. Proof of diligence at time of decision to move to the Cloud will be important.

Cloud Case Law

There isnt much! 19 federal cases mention cloud computing, but none deal with discovery issues. Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)(a request for production need not be confined to documents or other items in a party's possession, but instead may properly extend to items that are in that party's "control.)

Issues in the Cloud

Financial Obligations (what happens to data if there is a default) Termination and Retrieval Password Protection Data Encryption available? Terms of end users licensing agreement (ELUA)
Limitations of liability Forum selection Data rights

Recapping E-Discovery
E-Discovery by its nature, lends itself to many issues
Cost Privilege (Waiver) Preservation/Spoilation Authenticity Etc.

Recapping E-Discovery
Before Litigation is Commenced
Work with the client to develop a comprehensive document retention policy Once litigation is reasonably anticipated, send a litigation hold letter to personnel who may have relevant documents err on the side of caution Formulate a method of ensuring compliance

Recapping E-Discovery
Work With Opposing Counsel
Discuss the possibility of a clawback agreement (return inadvertently disclosed info) Work together on compiling a list of relevant custodians and keyword searches create a written record Discuss a presumption of authenticity for documents produced by the other party

Recapping E-Discovery
Cooperation with opposing counsel may SHOULD be mandated by the federal rules Damages sought may drive scope of discovery
Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008)

Thank you!