Slide 1

Report
ELECTRONIC DISCOVERY:
RULES, TIPS & TACTICS
Widener University School of Law
Wilmington, DE August 19, 2010
Ron Hedges
Ronald J. Hedges LLC
[email protected]
1
GETTING STARTED
WHO I AM
THE SEDONA CONFERENCE©
DIGITAL DISCOVERY & E-EVIDENCE
A DISCLAIMER
2
INTRODUCTION TO TERMINOLOGY
“Electronically stored information” or ESI
“Form of forms” of production
“The Sedona Conference® Glossary: E-Discovery
& Digital Information Management” (2d ed.
2007), available at
www.thesedonaconference.org
3
WHAT MAKES ESI DIFFERENT?
Bit [a binary digit-either 0 or 1]
Byte [8 bits]
10 bytes: a single word
Kilobyte [1,000 bytes]
2 kilobytes: a typewritten page
Megabyte [1,000,000 bytes]
5 megabytes: the complete Shakespeare
Gigabyte [1,000,000,000 bytes]
50 gigabytes: a floor of books
Terabyte [1012 bytes]
10 terabytes: Library of Congress
“Data, data, everywhere,” The Economist (special report on managing information:
Feb. 27, 2010)
4
WHAT MAKES ESI DIFFERENT?
Voluminous and distributed
Fragile yet persistent
Capable of taking many forms
Contains non-apparent information (“metadata”)
Created and maintained in complex systems
5
WHAT MAKES ESI DIFFERENT?
“Sources” of ESI include
Networked devices (other computers, printers, fax
machines, etc.)
Laptops
Removable media
Disaster recovery backup media
Digital archives (CDs, DVDs, etc.)
Mobile phones
PDAs
GPS units
DeTraglia v. Grant, 2009 WL 4672741 (N.Y. App. Div. 3d Dept. Dec. 10,
2009)
6
WHAT THE STATES ARE DOING
Is it better to be in a State court? Many approaches, but …
California adopted the Federal Rules (mostly) by statute/rule
A.J. Longo, et al., “California Enacts Electronic Discovery Rules …,” 9
DDEE 23 (Aug. 1, 2009)
New York just issued “A Report to the Chief Judge and Chief
Administrative Judge: Electronic Discovery in the New York State
Courts” (Feb. 2010)
www.courts.state.ny.us/courts/comdiv/PDFs/E-DiscoveryReport.pdf
Texas adopted in part by decision
In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. Sup. Ct. 2009)
7
WHAT THE STATES ARE DOING
Conference of Chief Justices Guidelines
www.ncsconline.org/images/EDiscCCJGuidlinesFinal.pdf
Proposed Uniform Rules
www.law.upenn.edu/bll/archives/ulc/udoera/2007am_final.htm
8
THE FEDERAL RULES:
SCOPE OF DISCOVERY
Rule 26(b)(1) and the scope of discovery
Anything relevant to a claim or defense
For good cause, anything relevant to subject matter
As to the latter, “[t]he dividing line between
information relevant to the claims and defenses and
that relevant only to the subject matter of the action
cannot be defined with precision.” GAP Report to
2000 Amendment to Rule 26(b)(1)
9
THE FEDERAL RULES:
PROPORTIONALITY
Rule 26(b)(1)
Rule 26(b)(2)(C)
Rule 26(g)(1)(B)
High Voltage Beverages, LLC v. Coca-Cola Co.,2009 WL
2915026 (W.D.N.C. Sept. 8, 2009)
Spieker v. Quest Cherokee, LLC, 2008 WL 4758604 (D. Kan.
Oct. 30, 2008)
10
THE FEDERAL RULES:
THE BASICS
Rule 34(a)(1)(A) and “electronically stored information”
Rule 34(a)(1) and “possession, custody, or control”
Goodman v. Praxair Serv., Inc., 2009 WL 1955805 (D. Md. July
7, 2009)
Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist.
LEXIS 43588 (D. Conn. May 21, 2009)
Rule 34(a)(1) and “inspect, copy, test, or sample”
John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008)
11
THE FEDERAL RULES:
REQUESTING AND PRODUCING
Rule 34(b)
Requesting party “may” specify form or forms for production (Rule 34(b)(1)(C))
Producing party must object and/or indicate intended form of production (Rule
34(b)(2)(D))
Absent agreement or court order, ESI should be produced in form or forms “in
which it is ordinarily maintained “ or in a “reasonably useable” form (Rule
34(b)(2)(E)(ii))
Aguilar v. Immigration and Customs Enforcement Div., 2008 WL 5062700
(S.D.N.Y. Nov. 21, 2008)
SEC v. Collins & Aikman Corp., 2009 U.S. Dist. Lexis (S.D.N.Y. Jan. 13, 2009)
12
THE FEDERAL RULES:
SCOPE OF PRODUCTION
Rule 26(b)(2)(B)
A party need not search or produce ESI from “sources” that
are “not reasonably accessible because of undue burden or
cost”
Providing that the party “identifies” those
sources to the requesting party
Identification can be by “category or type”
Palgut v. City of Colorado Springs, 2007 WL 4277564 (D. Colo.
Dec. 3, 2007)
13
THE FEDERAL RULES:
SCOPE OF PRODUCTION
Rule 26(b)(2)(B)
Considerations in deciding whether ESI is NRA
The costs and burdens of retrieval
The benefits to a claim or defense
Examples of sources of ESI that may be NRA include
Disaster recovery media
Legacy data
Deleted information
Fragmented data
Note that these are not examples of ESI that are NRA per se—that determination
is an ad hoc one that balances cost/burden and need/relevance
And, for good cause shown, production of NRA may be allowed, “considering the
limitations of Rule 26(b)(2)(C). The court may specify conditions for the
discovery.”
14
MEET AND CONFER REQUIREMENTS
Rule 26(f)
R.J. Hedges, “The Most Important E-Discovery
Rule,” New Jersey L.J. (Supp. May 18, 2009)
Rule 26(c)(1)
Rule 37(a)(1)
Local rules, etc.
Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL
502721 (D. Colo. Feb. 8, 2010)
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MEET AND CONFER REQUIREMENTS
Typically occurring about 90 days from filing of answer
Becoming an iterative process in complex cases
Involving specialized consultants and experts
Developing its own protocols and conventions
AND NOTE: Some 41 district courts have local rules or
guidelines that impose additional duties. See, e.g., C. R.
Crowley, “Local Flavor: ESI Rules in Delaware, Kansas,
Maryland, and Ohio,” DDEE (Nov. 1, 2007).
16
COOPERATION
M.R. Grossman, J.A. Thomas & R.J. Hedges,
“Ethical Issues for Attorneys in EDiscovery” (included in materials)
The Sedona Conference© Cooperation
Proclamation, available at
www.thesedonaconference.org
In re Fannie Mae Securities Lit., 552 F.3d 814
(D.C. Cir. 2009)
17
PRESERVATION AND SPOLIATION
Why Here? The Sedona Conference© Commentary on Legal Holds (2007)
State of Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008)
Compare Cache Le Poudre Foods, LLC v. v. Land O’ Lakes, Inc., 244 F.R.D. 614
(D. Colo. 2007) with Goodman v. Praxair Services, Inc. , 2009 WL 1955805
(D. Md. July 7, 2009)
Compare Phillip M. Adams & Assoc. v. Dell Inc., 2009 WL 91080 (D. Utah Mar.
30, 2009) with Realnetworks, Inc. v. DVD Copy Control Ass’n, 2009 U.S.
Dist. LEXIS 38221 (N.D. Ca. May 5, 2009)
18
PRESERVATION AND SPOLIATION
Include
Inherent power
28 U.S.C. Sec. 1927
Fed. R. Civ. P. 37
Fed. R. Civ. P. 26(g)
See Winner v. Etkin & Co., 2008 WL 5429623
(W. D. Pa. Dec. 31, 2008)
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PRESERVATION AND SPOLIATION
Pension Comm. v. Banc of America Securities,
2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)
K.F. Brady, “Pension Committee : Zubulake Through a Looking
Glass?” 10 DDEE 2 (Feb. 1, 2010)
Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist.
LEXIS (S.D. Tex. Feb. 19, 2010)
D.D. Crosee & J.D. Hosid, “Rimkus v. Cammarata: Zubulake
Revisited Again,” 10 DDEE 57 (Mar. 1, 2010)
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SANCTIONS: RULE 37(e)
Failure to Provide Electronically Stored
Information. Absent exceptional
circumstances, a court may not impose
sanctions under these rules on a party for
failing to provide electronically stored
information lost as a result of the routine,
good-faith operation of an electronic
information system.”
Defined to be, “the ways in which such systems
are generally designed, programmed, and
implemented to meet the party’s technical and
business needs.”
21
SANCTIONS: RULE 37(e)
Rimkus Consulting Group, Inc. v. Cammarata
Escobar v. City of Houston, 2007 U.S. Dist.
LEXIS 72706 (S.D. Tex. Sept. 27, 2007)
Oklahoma ex. rel. Edmondson v. Tyson Foods,
Inc., 2007 WL 1498973 (N.D. May 17, 2007)
(warning parties to be “very cautious in
relying upon any ‘safe harbor’ doctrine”)
22
“CRIMINALIZATION”
Sarbanes-Oxley
18 U.S.C. Sec. 1512(c), etc.
Search warrants
Compare United States v. Comprehensive
Drug Testing, Inc., 579 F.3d 989 (9th Cir.
2009) (en banc) with United States v. Mann,
592 F.3d 779 (7th Cir. 2010)
23
“CRIMINALIZATION”
United States v. O’Keefe, 537 F. Supp. 2d 14
(D.D.C. 2008)
United States v. Skilling, 554 F.3d 529 (5th Cir.
2009)
Gill v. State, 300 S.W.2d 225 (Mo. Sup. Ct.
2010)
24
EPHEMERAL INFORMATION
Convolve, Inc. v. Compaq Computer Corp., 223
F.R.D. 162 (S.D.N.Y. 2004)
Columbia Pictures, Inc. v. Bunnell, 245 F.R.D.
443 (C.D. Cal. 2007)
Arista Records , LLC v. Usenet.com Inc., 2009
WL 185992 (S.D.N.Y. Jan. 26, 2009)
25
PRIVILEGE
Rule 26(b)(5)(B)
Hopson v. Mayor and City Council, 232 F.R.D. 228 (D.
Md. 2005)
“Absent further Congressional action, the Rules Enabling Act
does not authorize modification of state privilege law. Thus,
the clawback provision in Fed. R. Civ. P. 26(b)(5)(B) and
16(b)(6), while respected in federal courts, might be deemed a
common law waiver of privilege in state courts, not only for
the document in question, but a broader waiver of attorney
client privilege as to the subject matter involved.” Henry v.
Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008)
26
PRIVILEGE AND RULE 502
Reduce cost of privilege review
Provide clear guidance on waiver of privilege
Avoid broad waiver through inadvertent
disclosure of privileged communications
Give effect to agreements between parties and
court orders regarding nonwaiver
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RULE 502(a)
Intentional waiver
Waiver by disclosure in a federal proceeding or to a
federal
agency acts as a waiver of additional undisclosed
communications only if:
 Waiver was intentional
 Undisclosed communication concerns the same
subject matter, and
 Disclosed and undisclosed communications
“ought in fairness to be considered together”
28
RULE 502(b)
Inadvertent disclosure
Disclosure does not act as waiver if:
 Disclosure is inadvertent
 Reasonable steps were taken to prevent disclosure,
and
 Prompt and reasonable steps were taken to rectify
the error
 Rule 26(b)(5)(B)
29
FINDING A WAIVER?
Victor Stanley, Inc. v. Creative Pipe, Inc. 250 F.R.D. 251 (D. Md.
2008)
Decided before enactment of Rule 502
Failure to enter into an agreement with opposing party
Use (or misuse) of automated search
technology
Failure to submit an adequate privilege log
United States v. Sensient Colors, Inc., 2009 U.S.
Dist. LEXIS 81951 (D.N.J. Sept. 9, 2009)
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11,
2008)
30
RULE 502(c)
Disclosure in a state proceeding
Disclosure does not operate in a federal proceeding
if:
 It would not be a waiver if made under this rule in a
federal proceeding, or
 It is not a waiver under applicable state law
31
RULE 502(e)
Controlling effect of a party agreement
“An agreement on the effect of
disclosure in a federal proceeding is
binding only on the parties to the
agreement, unless it is incorporated
into a court order.”
32
RULE 502(d)
Controlling effect of a court order
“A federal court may order that the
privilege or protection is not waived by
disclosure connected with the litigation
pending before the court – in which event
the disclosure is also not a waiver in any
other federal or state proceeding.”
33
RULE 502(f)
Controlling effect of this rule
“… this rule applies to state
proceedings and to federal courtannexed and federal court-mandated
arbitration proceedings, in the
circumstances set out in the rule. And
notwithstanding Rule 501, this rule
applies even if state law provides the
rule of decision.”
34
PRIVILEGE MISCELLANEOUS
In re eBay Seller Antitrust Litigation, 2007 WL
2852364 (N.D. Ca. Oct. 2, 2007) (document
retention notice)
Compare Rhoads Industries v. Building Materials
Corp. of America, 254 F.R.D. 238 (E.D. Pa.
2008) with Muro v. Target Corp., 2007 WL
3254463 (N.D. Ill. Nov. 2, 2007) (“strings”). See
J.A. Thomas, et al., “Reducing the Costs of
privilege Review and Logs,” National L. J.
(Mar. 23, 2009)
35
THE CLOUD AND WEB 2.0/3.0
Web 2.0/3.0 = “A set of technologies that
combine peer=provided content and
automated networking applications to
create personalized-yet collaborative
information. These applications may be
hosted on cloud computing networks, but
not necessarily.” (Ken Withers)
Cloud Computing = Places computing
functions on the Internet
36
THE CLOUD AND THE WEB
SOCIAL NETWORKING CAN INCLUDE:
“Wiki” = site used to capture community
information
“Blog” = site used to discuss topic or topics
“Collaborative” = site used to gather and
share information (can use Wikis or Blogs)
37
AND HOW WILL THE LAW REACT?
CONTRACT CONSTRUCTION
PRINCIPLES OF AGENCY
CONCEPTS OF “AUTHORITY”
Actual
Apparent
Implied
38
PRIVACY EXPECTATIONS
Stengart v. Loving Care Agency, Inc., 2010 WL
1189458 (N.J. Sup. Ct. Mar. 30, 2010)
Compare J.S. v. Blue Mt. School Dist., 593 F.3d
286, 2010 WL 376186 (3d Cir. Feb. 4, 2010) with
Layshock v. Hermitage School Dist., 593 F.3d
249, 2010 WL 376184 (3d Cir. Feb. 4, 2010)
Quon v. Arch Wireless – Argued in U.S. Supreme
Court in April, (decided June, 2010, City of
Ontario v. Quon, No. 08-1332,560 U.S. )
39
TRANSNATIONAL DISCOVERY
The European Privacy Directive (and others), see
www.trilantic.co.uk
In re Global Power Equip. Group Inc., 2009 WL
3464212 (Bankr. Del. Oct. 28, 2009)
AccessData Corp. v. ALSTE Tech., 2010 WL
318477 (D. Utah. Jan. 21, 2010)
40
ADMISSIBILITY
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md.
2007)
Rule 104(a) (role of judge)
Rule 104(b) (role of jury)
Rule 401 (relevance)
Rule 402 (admissibility, but … )
Rule 403 (undue prejudice, etc.)
Rule 901-02 (authenticity)
Rule 801-07 (hearsay)
Rule 1001-08 (best evidence)
41
ETHICS AND CONFIDENTIALITY
ABA Formal Opinion 06-442 (Aug. 2006)
“Metadata Ethics Opinions Around the U.S.,”
ABA Legal Technology Resource Center
Pennsylvania Bar Ass’n Comm. on Legal
Ethics and Prof. Responsibility, Formal
Opinions 2009-100 and 2007-500
42
ETHICS AND CONFIDENTIALITY
Castellano v. Winthrop, 2010 WL 322177 (Fla.
Dist. Ct. App. Jan. 29, 2010)
Lawson v. Sun Microsystems, Inc., 2010 WL
503054 (S.D. Ind. Feb. 8, 2010)
Cornwell v. Northern Ohio Surg. Ctr., LTD,
2009 –Ohio-6975 (Ct. App. Dec. 31, 2009)
43
TOWARD THE FUTURE?
The 2010 Civil Litigation Conference
44
QUESTIONS?
Ron Hedges
Ronald J. Hedges LLC
[email protected]
45
Electronic Discovery
Rules, Tips and Tactics
Thank you!
Ron Hedges
Ronald J. Hedges LLC
[email protected]
Widener University School of Law
Wilmington, DE August 19, 2010

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