Practical ESI Discovery Iowa Defense Counsel Phil A. Burian 6/10/14 1
Electronically Stored ESI Information Information created, manipulated, communicated, stored, converted to, or best utilized in digital form, requiring the use of computing hardware and software 2
Requests for Production F.R.Civ.P. 34 & I.R.Civ.P. 1.512 Must produce ESI directly or, if necessary, after translation by the responding party into a reasonably usable form Documents must be produced as they are kept in the usual course of business or organized/labeled to correspond to the categories of requests ESI must be produced in a form in which it is ordinarily maintained or in a reasonably usable form or forms unless specified otherwise A party need not produce the same ESI in more than one form May object to the form requested but must state the form intended for production 3
Subpoenas F.R.Civ.P 45. & I.R.Civ.P. 1.1901 May specify the form or forms of ESI production ESI can be combined with traditional document requests If no form is specified, must be produced in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms Need not produce the same ESI in more than one form May object (within 14 days) because the ESI is not reasonably accessible because of undue burden or cost and the court will decide the issues based on protective orders factors 4
ESI Types Communications Emails Texts IM Voice mails Blogs Third-party platforms Loose Active Files Operating documents (MS Word, Excel, Power Point, etc.) Image documents (.pdf,.tif,.jpg, video, etc.) Other documents Legacy data Deleted data 5
ESI Locations Networks & Servers email / voicemail / fax / personal or local directories Individual towers Laptops Portable storage External hard drives / Thumb drives CD s / SIM & camera cards Third-party systems Cloud / Web-based servers / social networks Hand-held ( BYOD ) Smart/cell phones / Tablets / GPS Legacy Systems Archives / Backup media Any other devise capable of storing data Proprietary Systems / Databases / BYOD s 6
Imbalance and Leverage 7
MYTHS $...,000,000 100% 8
Metadata Matters! Email: Stored in the email but often not even viewable in the email application (e.g., bcc, rec d date) - varies by system Document: Properties about the file rather than content - often not viewable in the application but in Properties view (e.g., author, and create / revision / print dates) Application: Created by the particular application, moved with the file when copied but can be altered by copying File System: Logs / other logistical information generated by an operating system to track the demographics (name, size, location, usage, etc.) of the ESI and, not embedded within, but stored externally Embedded: Usually hidden and not normally extracted by copies and emails. May only be found in the original, native file. (e.g., track changes, comments and notes ) 9
Metadata Matters! More often our friend we need it as much as the other side wants it Data reduction: filtering Validating search logic More reliable than OCR Can be more reliable than humans 10
Ethical Duties Case Size Proprietary, Privacy & Privilege Risk Attorney Legal Fees Paralegal Vendor Costs Staff Motion Tactics & Defensibility Trial Tactics Settlement Tactics
DATA CAPTURE & REDUCTION Ethically Effectively & Verifiably Defensibly Economically 12
Hold, Capture & Collection Electronic Filtering Process & Cost Sources 13
Litigation Hold Internal Hold Trigger: reasonable anticipation of litigation Benchmark for work product protection No standard form Smart and defensible filter strategies Involved IT up front and have IT execute Think beyond client to those in client s control accountants, lawyers, contractors 14
Litigation Hold Internal Hold: ESI Filtering and Capture Scope ESI Filtering strategies Ongoing: later created data & reassessment Proportionality What you want v. what the other side wants Strong evidence of good faith: document decisions and create audit trials 15
Litigation Hold Internal Hold: ESI Preservation Method: Preserve in place? Collect? Image? Considerations: Proportionate expense Document retention policy / auto delete Risks of self collection and retention Mischief / bad actors / bias / mistakes Technical capabilities Potential for two phases Verification 16
Litigation Hold Internal Hold: Drafting Plain but specific language Less can be more Case specific Provide a point of contact Have IT and critical custodians review for effectiveness Require acknowledgement 17
Litigation Hold Litigation Hold Letter to Adverse Party Specificity of Document types Custodians Sources Defensible Start the cooperation early 18
Social Networks and Internet Service Providers Stored Communications Act Prohibits knowingly divulging the content of communications stored by: 18 U.S.C. 2701, et seq. Electronic communication services: " any service which provides to users thereof the ability to send or receive wire or electronic communications Remote computing services: "the provision to the public of computer storage or processing services by means of an electronic communications system" 19
Social Networks and Internet Service Providers Stored Communications Act 18 U.S.C. 2701, et seq. Sender and recipient name, date, re: etc. may be interpreted to be content In re Zynga Privacy Litig., 12-15619, 2014 WL 1814029 (9th Cir. May 8, 2014) 20
Social Networks and Internet Service Providers Stored Communications Act 18 U.S.C. 2701, et seq. Exceptions: Proper Civil Subpoena? Civil Court Order? Exceptions Intended uses Protection of the rights or property of the service User s consent (probably request) Child abuse Public agents and law enforcement 21
Social Networks and Internet Service Providers Stored Communications Act 18 U.S.C. 2701, et seq. Immediate Litigation Hold Demand Prevent ordinary course updates Obtain signed consent (or adverse counsel agreement) Third-party provider dependent: Account holder name, birthdate, SSN User name, group name, passwords ISP and registration data for ISP Precise description of records sought Citation to SCA exception (18 USC 2703(b)(3)) Original signatures for each service provider 22
Filtering Starts with litigation hold Be thoughtful Inclusion v. Exclusion Relevance Privilege / work product Do it only once 23
Filtering Source Physical source / Hardware Project- specific files/directories Electronic Custodian Term List Most common Brings imbalances to a head Clumsy Targeted key words Date ranges Domains File and data types de-nist ing. Technology Assisted Review (predictive coding) 24
Filtering Considerations: Secondary linear review Search tool limitations Validation & defensibility Proprietary software Valid Mass-Designations 25
Hold, Capture & Collection Electronic Filtering Ingestion & Hosting Process & Cost Sources 26
Ingestion Deduping Near Deduping Threading Families Database rules and protocol 27
Support Data collection Filtering Production Evidentiary presentation Defensibility testimony Vendors Internal cost amount/control shifting Different Interfaces / Looks Search and management software (not always) be so different: Summation Clearwell Caselogistics iconectnxt Nextpoint LexBe... Relativity Concordance Edge ImageDepot MasterFile Eclispe Competitive: Different price structures Functions Soft numbers Oversells 28
Hold, Capture & Collection Electronic Filtering Process & Cost Sources Ingestion & Hosting Targeted / Hybrid Electronic Filtering Linear Review 29 Production and Use
Discuss with the client: Before Starting ESI sources & volume Client s and Adversary s Litigation holds How to find the balance Risks of inadvertent disclosure Privilege Proprietary Privacy Dispel the myths 30
Discuss with the client: Data Collection Before Starting Motion considerations Witnesses Credibility Defensibility Later costs Lost metadata Corrupted files Technical abilities Business interruption 31
Before Starting Learn the case with ESI in mind for filtering considerations Buzz terms Custodians Irrelevant areas to be caught up 32
Before Starting Engage the right people Client In-House IT (single point of direct contact) Will they be a witness? Are they equipped? Authorized Shepherds Outside Vendors Attorneys & Staff 33
Engage Adverse Counsel Early and Often Never to early to start... and document it. 34
Engage Adverse Counsel Early and Often Meet and confers (Fed. R. Civ. P. 26(f) or otherwise) Plan for data: 1) preservation; 2) collection; 3) filtering; and 4) production based on: What do you need What will they claim they need Who stands to benefit from details (or who stands to lose) Your technical capabilities/systems Creativity such as phasing discovery (what is really needed for negotiations?) Mutual cost savings such as using the same vendor Need for forensic collection (will protocol compliance and authenticity be an issue?) Obtain/Exchange beforehand: Sources, formats, estimated volumes etc. fully disclose. Estimated vendor and HR costs set up cost shifting early Involve IT / Vendors in real time: Dispel technological assumptions by attorneys they may be your own 35
Engage Adverse Counsel Early and Often Sources of disputes, delay, and downstream expenses: Technological assumptions Uninformed / reactionary entrenching The term list what is on it and what it means Protocol gamesmanship Failure to identify all ESI sources... there is a new sheriff in town-not Gary Cooper, but me. The filing of fortypage discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. Tadayon v. Greyhound Lines, Inc., CIV. 10-1326 ABJ/JMF, 2012 WL 2048257, * (D.D.C. June 6, 2012) (citing https://thesedonaconference.org/) 36
Express Agreements Under Imbalances Wait for permission or seek forgiveness later? 37
Express Agreements Under Imbalances Wait for permission or seek forgiveness later? Preservation Collection and mass-filters: protocol, validation and logs Expectation of manual linear review after electronic searches ( the list ) 38
Express Agreements Under Imbalances Wait for permission or seek forgiveness later? Production Organization: Ordinary course Folders and subfolders Identified by request # Production format Hard copy Load files True v. Hybrid (TIFF) native format Images only (OCR Compatible) Proprietary software requirements Production Metadata Emails: Subject Author Recipient CC BCC Rec d date and time Sent date and time Threading and attachment Loose / Active File: Name & Extensions Author Create date/time Edit Version Access / edit history 39
Privilege protocol Express Agreements Under Imbalances Wait for permission or seek forgiveness later? Inadvertent production Rely on the rules? Log content and organization Audit procedures Deadline for challenging privilege designations 40
MOTIONS Stake out the high ground with early and ongoing good faith diligence, and document it. Move or defend (permission v. forgiveness)? Know the judge & jurisdiction: How much technical education does the bench need? How much myth-busting does the bench need? 41
MOTIONS Seeking ESI Why the source is relevant and necessary Why there is no alternative source Why the source is not duplicative or cumulative of other sources Protecting ESI Why irrelevant or relevance is outweighed by the cost Why it is cumulative Specifically why it is burdensome/expensive How the request is better framed/focused Evidence: samples, hit report, informed affidavits Cost shifting: informed statements of expense 42
Forensic Investigators Investigator Data Source Third Party Referee Requesting Counsel Protocol Custodian / Counsel 43
Client Considerations Control ESI: Sources TM s Personal email accounts BYOD s outside of server Cloud Central operating directories: To C:/ or not to C:/.... Central backup / imaging capabilities Central custodians 44
Client Considerations Control ESI: Sources Use Personal emails Everyone should know everything is saved. Internal and external professionalism 45
Client Considerations Control ESI: Sources Use Volume Unsubscribe v. spam filtering Document retention Policy Saving as new 46
Client Considerations Control ESI: Sources Use Volume Organization Standardize file nomenclature & organization Project specific directories Server drive allocation Identifying privileged communications 47
Client Considerations Plan for ESI: Litigation Hold General guidelines v. case specific requirements Identifying triggering events Will the plan be followed... 48
Client Considerations Plan for ESI: Litigation Hold Personnel Routine points of contract Urgent points of contact Counsel Critical personnel departure Personnel to execute a litigation hold Business interruption mitigation 49
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Preserve in place Collection for preservation Image for preservation 50
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Preserve in place Collection for preservation Image for preservation Real time redundancy 51
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Updates Legacy data preservation Archive Organization Vendor recommendations 52
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Updates Extraction Prime issue for costly disputes 53
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Updates Extraction Employee Education Limit surprises to them Limit surprises to you 54
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Updates Extraction Employee Education Culture of compliance Top -down 55
Client Considerations Plan for ESI: Litigation Hold Personnel Preservation Updates Extraction Employee Education Culture of compliance Plans made before the client knows who stands to benefit, if followed, may help defensibility 56
Process & Cost Sources Collection Electronic Filtering Ingestion & Hosting Targeted / Hybrid Electronic Filtering Linear Review 57 Production and Use
Presenter: Phil A. Burian Contact: (319) 366-7641 pburian@simmonsperrine.com 58
This presentation is designed and intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired. 59