# Presentation: 030704

## SURVIVING E-DISCOVERY

- HON. JAMES C. FRANCIS (S.D.N.Y.)
- HON. SIDNEY I. SCHENKIER (N.D. ILL.)
- NEW YORK WORKSHOP – 07/27/06

## I.  THE SCOPE OF E-	DISCOVERY PROBLEMS	

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

## MAGISTRATE JUDGE SURVEY 2000

- SURVEY RECIPIENTS			           400
- SURVEY RESPONDENTS			115
- RESPONDENTS REPORTING 		  	  71
-   ELECTRONIC DISCOVERY IN
-   THEIR CASES
- RESPONDENTS REPORTING NO		  44
-   ELECTRONIC DISCOVERY IN
-   THEIR CASES

-   Magistrate Judge Survey 				2000

| E-Discovery Issues | % of judges with at least one case with this issue | % of total cases reported involving this issue |
| --- | --- | --- |
| Involvement of computer experts | 69 | 25 |
| Privilege waiver | 49 | 15 |
| On-site inspection | 48 | 15 |
| Sharing of discovery costs | 48 | 15 |
| Alleged spoilation | 47 | 13 |
| Data preservation order | 35 | 10 |
| Sharing of production costs | 35 |   9 |

**Notes:**
E-discovery issues magistrate judges report confronting. First and third are often related; on site use of expert.  

-   Magistrate Judge Survey  				2000

| Type of Case | % of judges reporting electronic discovery issues  |
| --- | --- |
| Employment – Individual Plaintiff | 59 |
| General Commercial | 55 |
| Patent/Copyright | 44 |
| Employment – Class Action | 25 |
| Product Liability | 24 |
| Other | 23 |
| Construction | 10 |
| Securities | 10 |
| Antitrust |   8 |

## 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 COURT’S TIME

**Notes:**
See Danis

## 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	

- AS OF 1999, 93 PERCENT OF ALL INFORMATION IN THE UNITED STATES WAS 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

**Notes:**
AS TO LAST POINT, ROWE SAYS AS MUCH AS 2/3

## 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

**Notes:**
Metadata:  information about information.  Can include when file created, when accessed, password used to access, record of revisions.

System data:  creation/deletion of directories, access to/from other computers.

## 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 USER’S OFFICE COMPUTER
- AN INDIVIDUAL USER’S CD OR FLOPPY
- AN INDIVIDUAL USER’S HOME COMPUTER
- ATTACHMENT TO E-MAIL SENT BY USER
- ATTACHMENT TO RECIPIENT’S E-MAIL
- COMPANY’S NETWORK-SHARED FOLDER
- COMPANY’S BACK-UP TAPES

**Notes:**
E-MAILS PROLIFERATE WHEN FORWARD, REPLY WITH HISTORY, REPLY TO ALL
BACK-UP TAPES CONTAIN MULTIPLE COPIES OF SAME DOCS, SINCE CAPTURE WHATEVER IS ON SYST. DAY 5 EVEN IF ALSO ON DAYS 1-4

## 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

## SOME PRESERVATION AND SPOILATION PROBLEMS 

- WHEN DOES A PARTY’S 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?

## SOME 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 COST-SHIFTING?

## 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?

## THESE PROBLEMS ARE MADE WORSE BY THE FAILURE OF MANY LAWYERS AND CLIENTS TO UNDERSTAND THAT IGNORANCE IS NOT AN OPTION

## ABA LITIGATION SECTION SURVEY -- 2000 

- 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 – 1998 

-   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
- BEST PRACTICES PROMULGATED BY PRIVATE ORGANIZATIONS

## CASE LAW REACTS TO AN E-DISCOVERY PROBLEM ARISING IN A SPECIFIC CASESEVERAL DISTRICTS HAVE TRIED TO DEAL WITH E-DISCOVERY PROBLEMS PROACTIVELY, BY LOCAL RULE

- DISTRICT OF ARKANSAS, LR 26.1
- DISTRICT OF DELAWARE, DEFAULT STANDARD FOR DISCOVERY OF ELECTRONIC DOCUMENTS
- DISTRICT OF KANSAS, STANDING ORDER
- DISTRICT OF NEW JERSEY, LR 25.1
- DISTRICT  OF WYOMING, LR 26.1

**Notes:**
YOU HAVE COPIES OF THESE LOCAL RULES IN THE MATERIALS

## THESE LOCAL RULES ALL TRY TO  FORCE PARTIES TO ADDRESS E-DISCOVERY EARLY IN THE CASE, AND TO REACH AS MUCH AGREEMENT AS POSSIBLE ON ISSUES OF PRESERVATION, PRODUCTION AND PRIVILEGE 

## AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE

- 08/04:  JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE ISSUED DRAFT AMENDMENTS
- 11/04-02/05:  254 WRITTEN COMMENTS, AND LARGE TURNOUT AT PUBLIC HEARINGS  IN D.C., SAN FRANCISCO AND DALLAS
- 04/05:  COMMITTEE REVISED DRAFT RULES
- 06/05:  JUDICIAL CONFERENCE STANDING RULES COMMITTEE APPROVED DRAFT
- 09/95:  JUDICIAL CONFERNCE APPROVED DRAFT
- 05/06:  DEADLINE FOR SUPREME COURT TO ACT
- 11/06:  DEADLINE FOR CONGRESS TO ACT

## THE PROPOSED CHANGES TO THE FEDERAL RULES

-   CHANGES TO ELECTRONIC DISCOVERY PLANNING (RULES 16, 26 AND FORM 35)
-   CHANGES TO ELECTRONIC DISCOVERY EXECUTION (RULES 26, 33, 34 AND 45)
-    CHANGES TO STANDARDS FOR IMPOSING SANCTIONS FOR ELECTRONIC DISCOVERY VIOLATIONS (RULE 37)

## BEST PRACTICES

- SEDONA CONFERENCE (2004)
- ABA DISCOVERY STANDARDS (2004)
- MANUAL FOR COMPLEX LITIGATION FOURTH (2004)

## SEDONA CONFERENCE

- INFLUENTIAL THINK TANK WHICH OUR KEN WITHERS NOW HAS JOINED AS ITS MANAGING DIRECTOR
- www.thesedonaconference.org

## GUIDELINES MANAGING INFORMATION AND RECORDS IN THE ELECTRONIC AGE

- ISSUED IN SEPTEMBER 2004
- RECOMMENDS THAT COMPANIES CREATE, ***AND ENFORCE***, POLICIES ON RETENTION AND DESTRUCTION
- RECOMMENDS THAT THE POLICIES PROVIDE FOR THEIR SUSPENSION (A LITIGATION HOLD) WHEN NECESSARY

## PRINCIPLES FOR ELECTRONIC DOCUMENT PRODUCTION

- ISSUED IN JANUARY 2004
- URGES PARTIES TO ADDRESS E-DISCOVERY ISSUES EARLY IN THE CASE
- MAKES RECOMMENDATIONS ABOUT LIMITS ON SCOPE AND FORM OF PRODUCTION
- RECOMMENDS WHEN COST-SHIFTING AND SANCTIONS SHOULD BE ORDERED
- CARROLL AND WITHERS ARTICLE COMMENTING ON THESE PRINCIPLES

## ABA CIVIL DISCOVERY STANDARDS

- ISSUED AUGUST 2004
- URGES THAT PARTIES ADDRESS E-DISCOVERY AT THE PLANNING CONFERENCE
- IDENTIFIES CONSIDERATIONS FOR COURTS TO USE IN ADDRESSING E-DISCOVERY DISPUTES
- ADDRESSES PRIVILEGE ISSUES

## MANUAL FOR COMPLEX LITIGATION FOURTH (2004)

- LARGELY CONTAINED IN ONE, BRIEF SECTION (11.446)
- CONTAINS A USEFUL DESCRIPTION OF CERTAIN BASIC TECHNICAL TERMS
- GENERALLY HIGH-END, NOT AS SPECIFIC AS SEDONA AND ABA

**Notes:**
ANOTHER GOOD SOURCE IS THE FJC WEBSITE (WWW.FJC.GOV), WHICH HAS SEDONA AND ABA STANDARDS, VARIOUS ARTICLES, PRESENTATIONS AND DRAFT ORDERS

## ADDRESSING THE PROBLEMS OF PRESERVATION AND SPOILATION 

## MEDIA COSTS

- Wiginton v. Ellis, 2003 WL 22439865 (N.D. Ill.)
- $50 per tape x 125 servers x 1 e-mail backup tape = $6,250 per day to preserve daily tapes
- Keir v. UnumProvident Corp., 2003 WL 21997747 (S.D.N.Y.)
- Weekly backups plus incremental backups during week; recycled every 30-60 days

## BUSINESS DISRUPTION

- Can’t delete e-mail
- Must segregate e-mail by topic
- Can’t turn on computer

## TRANSACTION COSTS

- A “litigation hold” must be disseminated and monitored
- In re Old Banc One Shareholders Security Litigation, 2005 WL 3372783 (N.D. Ill.)
- Danis v. USN Communications, Inc., 2000 WL1694325 (N.D. Ill.)
-  E-mailing employees may be insufficient!     In re Prudential Sales Practices Litigation, 169 F.R.D. 598, 615 (D.N.J. 1997)

## “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

- Preserve metadata?
- Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005)
- Pueblo of Laguna v. United States, 60 Fed. Cl. 133, 143 (2004)
- Preserve ephemeral data?
- Convolve Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 176-77 (S.D.N.Y. 2004)

## MEANS OF PRESERVATION

- Litigation Hold
- Cease autodelete
- Segregate discoverable files
- Cease recycling
- Imaging
- Sampling for preservation
- Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (Zubulake V)

## STANDARDS FOR PRESERVATION ORDERS: PRELIMINARY INJUNCTION

- Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex.)
- Pepsi Cola Bottling Co. v. Cargill, Inc., 1995 WL 783610 (D. Minn.)
- Cunningham v. Bower, 1989 WL 35993 (D. Kan.)

## STANDARDS FOR PRESERVATION ORDER: MULTIFACTOR TEST  

- Treppel v. Biovail Corp., 2006 WL 278170 (S.D.N.Y.)
- Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2004)
- Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.N.Y. 2004)

## THE MULTIPLE FACTORS

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

## COST-SHIFTING?

- Treppel v. Biovail Corp., 2006 WL 278170 (S.D.N.Y.)
- Keir v. UnumProvident Corp., 2003 WL 21997747 (S.D.N.Y.)

## SPOLIATION

- Gates Rubber Co. v. Bando Chemical Industries, 167 F.R.D. 90 (D. Colo. 1996)    (destruction of data by computer expert)
- Danis v. USN Communications, 2000 WL 1694325 (N.D. Ill.) (failure to communicate preservation order; adverse inference; fine for CEO)
- Trigon Insurance Co. v. United States, 204 F.R.D. 277 (E.D. Va. 2001) (deletion of drafts and backup for expert report; adverse inference)

## SPOLIATION CONT’D

- Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 2001) (physical destruction of hard drive; adverse inference)
- Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2001) (deletion of data from Palm Pilot; monetary sanctions)
- Metropolitan Opera v. Local 100, 212 F.R.D. 178 (S.D.N.Y. 2003) (complete disregard of preservation, production obligations; default judgment, award of attorneys’ fees)

## STILL MORE SPOLIATION

- Coleman Holdings, Inc. v. Morgan Stanley, 2005 WL 679071 (Fla. Cir. Ct. 2005) (defendant overwrote e-mails for year in violation of preservation order, submitted false certification of compliance, failed to report spoliation for 6 months; court shifts burden of proof to spoliator)
- Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V) (destruction and tardy production of e-mails; adverse inference and costs of reopened depositions)

## STATE OF MIND

- “The sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.”
- 		- Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2d Cir. 2002)

## PROPOSED SAFE HARBOR

- Rule 37(f):
- “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.”

## 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

**Notes:**
LOTS OF E-INFO IS GENERATED AND KEPT; THERE ARE LOTS OF PLACES WHERE IT MAY BE FOUND.

WHILE ACTIVE DATA CAN BE ACCESSED CHEAPLY AND EASILY, ARCHIVAL DATA, BACKUP AND DELETED DATA CAN BE VERY COSTLY

## 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

**Notes:**
ALL OF THIS SPENT ON MATERIALS THAT WILL BE LARGELY UNIMPORTANT TO RESOLVING THE CASE  -- MUCH IS SOUGHT AND REVIEWED, LITTLE IS USED.  

THAT’S NOT UNIQUE TO E-DISCOVERY, BUT THE BURDENS AND COSTS INTENSIFY THE NEED FOR SOLUTIONS

## SOME IDEAS FOR GETTING PRODUCTION OF E-INFORMATION 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

**Notes:**
THAT’S THE MESSAGE OF THE STANDARDS, LOCAL RULES, AND AMENDMENTS TO FRCP 16 AND 26 AND FORM 35.

## RELEVANT FRCP AMENDMENTS

**RULE 26(f)(3), (4):  **THE PARTIES ARE TO DISCUSS “ANY ISSUES RELATING TO DISCLOSURE OR DISCOVERY OF ELECTRONICALLY STORED INFORMATION, INCLUDING THE FORM OR FORMS IN WHICH IT SHOULD BE PRODUCED,” AND “ANY ISSUES RELATING TO CLAIMS OF PRIVILEGE OR PROTECTION OF TRIAL-PREPARATION MATERIAL INCLUDING – IF THE PARTIES AGREE ON A PROCEDURE TO ASSERT SUCH CLAIMS AFTER PRODUCTION – WHETHER TO ASK THE COURT TO INCLUDE THEIR AGREEMENT IN AN ORDER

**FORM 35:  **“DISCLOSURE OR DISCOVERY OF ELECTRONICALLY STORED INFORMATION SHOULD BE HANDLED AS FOLLOWS:______(BRIEF DESCRIPTION OF PARTIES’ PROPOSALS),” AND
- “THE PARTIES HAVE AGREED TO AN ORDER REGARDING CLAIMS OF PRIVILEGE OR OF PROTECTION AS TRIAL-PREPARATION MATERIAL ASSERTED AFTER PRODUCTION, AS FOLLOWS: (BRIEF DESCRIPTION OF PROVISIONS OF PROPOSED ORDER)”

**RULE 16(b)(5), (6):  **“THE SCHEDULING ORDER ALSO MAY INCLUDE . . .PROVISIONS FOR DISCLOSURE OR DISCOVERY OF ELECTRONICALLY STORED INFORMATION,” AND “ANY AGREEMENTS THE PARTIES REACH FOR ASSERTING CLAIMS OF PRIVILEGE OR OF PROTECTION AS TRIAL-PREPARATION MATERIAL AFTER PRODUCTION”

## AN E-DISCOVERY CHECKLIST FOR RULE 16 CONFERENCES

- SAMPLE CONFERENCE AGENDA AVAILABLE AT _[www.lexisnexis.com/applieddiscovery](http://www.lexisnexis.com/applieddiscovery)__ (“SAMPLE AGENDA”) _
- EXCERPTED FROM WITHERS, “COMPUTER-BASED DISCOVERY IN FEDERAL CIVIL LITIGATION,” FEDERAL COURTS LAW REVIEW (10/25/00)

**Notes:**
GUIDANCE FOR IDENTIFYING CASES LIKELY TO INVOLVE E-DISCOVERY, TECHNICAL INFORMATION TO OBTAIN, PRESERVATION, EXPERT AND PRODUCTION ISSUES TO CONSIDER

## 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 E-DISCOVERY MORE EFFECTIVELY IF POTENTIAL DISPUTES ARE ADDRESSED EARLY, BEFORE THE DISCOVERY HORSE HAS LEFT THE BARN

**Notes:**
ITS LIKELY COMING NO MATTER WHAT YOU DO.  SO DO YOU WANT TO BE OUT FRONT, OR BEHIND THE CURVE PLAYING CATCH-UP?

## 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 YOU’RE NOT GOING TO ROUTINELY RESOLVE DISPUTES THIS WAY, WHAT DO YOU DO?

**Notes:**
IT MIGHT MAKE SENSE IF THE APPROACH WAS DESIGNED TO PURPOSELY MAKE INFORMATION INACCESSIBLE

## 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
*SEE* SEDONA PRINCIPLES 4 AND 6, WITH RELATED COMMENTARY

## 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
*SEE *SAMPLE AGENDA, SECTION III

**Notes:**
FOR EXAMPLE, BACKUP ON OPTICAL MAY BE SEARCHABLE AND READILY ACCESSIBLE (SEE ZUBULAKE)

## 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 IN-COURT TESTIMONY
- 	**NOTE:  PROPOSED FRCP 26(b)(2) ALLOWS DEPOSITION DISCOVERY TO FLESH OUT A CLAIM OF “INACCESSIBILITY”**
- YOU CAN APPOINT A COURT EXPERT TO HELP YOU WITH TECHNICAL ISSUES
- 	*SEE *SEDONA PRINICIPLE 10, COMMENT 10c; ABA STANDARD (b)(5)

## ONCE YOU GET THE NECESSARY INFORMATION, WHAT’S NEXT?

- EVEN AFTER THE 2000 AMENDMENTS THAT 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

## McPEEK v. ASHCROFT, 202 F.R.D. 31 (D.D.C. 2001), AND 212 F.R.D. 33 (D.D.C. 2003) (MJ FACCIOLA)

- USED A PROPORTIONALITY ANALYSIS APPLYING THE ECONOMIC PRINCIPLE OF “MARGINAL UTILITY”  IN DECIDING WHETHER TO REQUIRE SEARCH OF BACK-UP TAPES FOR E-MAILS
- “THE MORE LIKELY IT IS THAT THE BACKUP TAPE CONTAINS INFORMATION THAT IS RELEVANT TO A CLAIM OR DEFENSE, THE FAIRER IT IS THAT THE GOVERNMENT AGENCY SEARCH AT ITS OWN EXPENSE.  THE LESS LIKELY IT IS, THE MORE UNJUST IT WOULD BE TO MAKE THE AGENCY SEARCH AT ITS OWN EXPENSE.  THE DIFERENCE IS ‘AT THE MARGIN.’”
- USED THIS ANALYSIS TO REQUIRE A TEST PRODUCTION OF CERTAIN E-MAILS ON BACKUP TAPES DURING A DEFINED TIME PERIOD, AND BASED ON THE RESULTS, LIMITED ANY FURTHER SEARCHES TO ONE BACKUP DATE FOR ONE DATE

## 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.**

**Notes:**
NOTE:  (1) COST OF RESTORATION WAS $165K, BUT REVIEW/PRODUCTION WAS $108K THAT DEF. HAD TO PAY; (2) SOME EVIDENCE OF CONCEALMENT BY DELETION; (3) FIRST 2 FACTORS MOST IMP.

## OTHER PROPOTIONALITY STANDARDS

*WIGINGTON v. CB RICHARD ELLIS*, 229 F.R.D. 568 (N.D. ILL. 2004) (MJ ASHMAN)
*MEDTRONIC SOFAMOR DANEK, INC. v. MICHELSON, M.D.*, 229 F.R.D. 550 (W.D. TENN. 2003) (MJ VESCOVO)
*BYERS v. ILLINOIS STATE POLICE*, 2002 WL 1264004 (N.D. ILL. JUNE 3, 2002)

## SEDONA PRINCIPLES

- NO. 2:  WHEN APPLYING RULE 26(b)(2), COURTS SHOULD CONSIDER “THE TECHNOLOGICAL FEASIBILITY AND REALISTIC COSTS OF PRESERVING, RETRIEVING, PRODUCING, AND REVIEWING ELECTRONIC DATA, AS WELL AS THE NATURE OF THE LITIGATION AND THE AMOUNT IN CONTROVERSY.”
- NO. 8:  “THE PRIMARY SOURCE OF ELECTRONIC DATA AND DOCUMENTS FOR PRODUCTION SHOULD BE ACTIVE DATA AND INFORMATION PURPOSED STORED IN A MANNER THAT ANTICIPATES FUTURE BUSINESS USE AND PERMITS EFFICIENT SEARCHING AND RETRIEVAL.  RESORT TO DISASTER RECOVERY BACKUP TAPES AND OTHER SOURCES OF DATA AND DOCUMENTS REQUIRES THE REQUESTING PARTY TO DEMONSTRATE NEED AND RELEVANCE THAT OUTWEIGH THE COST, BURDEN, AND DISRUPTION OF RETRIEVING AND PROCESSING THE DATA FROM SUCH SOURCES.”

- NO. 9:  “ABSENT A SHOWING OF SPECIAL NEED AND RELEVANCE A RESPONDING PARTY SHOULD NOT BE REQUIRED TO PRESERVE, REVIEW, OR PRODUCE DELETED, SHADOWED, FRAGMENTED, OR RESIDUAL DATA OR DOCUMENTS.”
- NO. 11:  GENERALLY, “THE REASONABLE COSTS OF RETRIEVING AND REVIEWING ELECTRONIC INFORMATION FOR PRODUCTION SHOULD BE BORNE BY THE RESPONDING PARTY, UNLESS THE INFORMATION SOUGHT IS NOT REASONABLY AVAILABLE TO THE RESPONDING PARTY IN THE ORDINARY COURSE OF BUSINESS.  IF THE DATA OR FORMATTING OF THE INFORMATION SOUGHT IS NOT REASONABLY AVAILABLE TO THE RESPONDING PARTY IN THE ORDINARY COURSE OF BUSINESS, THEN, ABSENT SPECIAL CIRCUMSTANCES, THE COSTS OF RETRIEVING AND REVIEWING SUCH ELECTRONIC INFORMATION SHOULD BE SHIFTED TO THE REQUESTING PARTY.”

## THE PROPOSED AMENDMENT TO FRCP 26(b)(2)

- OLD RULE 26(b)(2)(B) IS RENUMBERED AS 26(b)(2)(C)
- A NEW RULE 26(b)(2)(B) IS ADDED TO SPECIFICALLY ADDRESS E-DISCOVERY BY CREATING A “TWO-TIERED” APPROACH:
- “A PARTY NEED NOT PROVIDE DISCOVERY OF ELECTRONICALLY STORED INFORMATION FROM SOURCES THAT THE PARTY IDENTIFIES AS NOT REASONABLY ACCESSIBLE BECAUSE OF UNDUE BURDEN OR COST.  ON MOTION TO COMPEL DISCOVERY OR FOR A PROTECTIVE ORDER, THE PARTY FROM WHOM DISCOVERY IS SOUGHT MUST SHOW THAT THE INFORMATION IS NOT REASONABLY ACCESSIBLE BECAUSE OF UNDUE BURDEN OR COST.  IF THAT SHOWING IS MADE, THE COURT MAY NONETHELESS ORDER DISCOVERY FROM SUCH SOURCES IF THE REQUESTING PARTY SHOWS GOOD CAUSE, CONSIDERING THE LIMITATIONS OF RULE 26(b)(2)(C).  THE COURT MAY SPECIFY CONDITIONS FOR THE DISCOVERY.”

## THE COMMENTARY SETS FORTH A 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.”

**Notes:**
NOTE:  A BLEND OF ZUBULAKE AND ROWE.  

## WHEN IS E-INFORMATION “NOT “REASONABLY ACCESSIBLE?”

- COMMENTARY IDENTIFIES BACKUP TAPES, LEGACY DATA ON OBSOLETE SYSTEMS, DELETED DATA
- COMMENTARY DISCUSSES UNDUE BURDEN AND COST FROM EFFORTS TO RECOVER AND RESTORE E- INFORMATION:  BUT, ***NOT*** FROM REVIEWING IT FOR RESPONSIVENESS OR PRIVILEGE
- THIS SUGGESTS 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

## NOT UNDER PROPOSED FRCP AMENDMENT	

- COMMENTARY TO PROPOSED NEW FRCP 26(b)(2) SAYS THAT EVEN DISCOVERY OF REASONABLY ACCESSIBLE E-DATA IS SUBJECT TO A PROPORTIONALITY ANALYSIS:
- 	“UNDER THIS RULE, A RESPONDING PARTY SHOULD PRODUCE ELECTRONICALLY STORED INFORMATION THAT IS RELEVANT, NOT PRIVILEGED, AND REASONABLY ACCESSIBLE, ***SUBJECT TO THE (b)(2)(C) LIMITATIONS THAT APPLY TO ALL DISCOVERY***.”

- THIS RECOGNIZES THAT EVEN WHEN E-DATA IS REASONABLY ACCESSIBLE, THERE MAY BE SITUATIONS WHERE COST-SHIFTING IS APPROPRIATE (*e.g., *THE HIGH COST AND BURDEN OF REVIEW WHERE THE REQUEST IS SEEKING A NEEDLE IN A HAYSTACK)
**CAUTION:  **THE FACTORS SUGGESTED IN THE COMMENTARY FOR A PROPORTIONALITY ANALYSIS FOR REASONABLY ACCESSIBLE E-DATA UNDER NEW FRCP 26(b)(2)(C) ARE NOT EXACTLY THE SAME AS THE 7-FACTORS IDENTIFIED IN THE COMMENTARY TO FRCP 26(b)(2)(B) TO USE IN DECIDING IF THERE IS GOOD CAUSE TO PERMIT DISCOVERY OF E-DATA THAT IS NOT REASONABLY ACCESSIBLE

## SO, WHAT DO YOU DO WITH ALL OF THIS WHEN FACED WITH AN E-DISCOVERY DISPUTE?

- THESE TOOLS ARE A GUIDE TO THE EXERCISE OF DISCRETION
- THEY ARE NOT A SUBSTITUTE FOR GOOD JUDGEMENT AND COMMON SENSE
- THAT SAID, HERE ARE SOME QUESTIONS AND APPROACHS TO CONSIDER

## IS THERE A DISPUTE ABOUT WHETHER THE E-INFORMATION IS REASONABLY ACCESSIBLE?

- UNDER THE NEW RULES, THIS IS A KEY QUESTION
- IT IS AN ISSUE THAT MAY REQUIRE SOME DISCOVERY
- THE RESPONDING PARTY ASSERTING INACCESSIBILITY HAS THE BURDEN OF PROOF
- BACKUP, DELETED, OUTMODED DATA IS LIKELY TO BE “NOT REASONABLY ACCESSIBLE”
- BUT, BE CAREFUL ABOUT  RELYING TOO MUCH ON LABELS:  JUST BECAUSE E-INFORMATION IS ON A BACKUP OR DISASTER RECOVERY TAPE MIGHT NOT MEAN THE INFORMATION IS NOT REASONABLY ACCESSIBLE (*see ZUBULAKE; *SEDONA PRINCIPLES, COMMENT 5(h))

**Notes:**
1.  MATTERS IF INACCESSIBLE DUE TO SYSTEM CHANGE PRE SUIT (XPEDIA CREDITOR TRUST V. CREDIT SUISSE, 309 F. SUPP. 2D 459 (SDNY 2003) OR AFTER SUIT (DANIS)
EVEN IF INACCESSIBLE, STILL MAY NEED TO PRESERVE
3. ZUBULAKE REQUIRED PRODUCTION OF BACKUP ON OPTICAL MEDIA THAT WAS SEARCHABLE

## 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?

**Notes:**
BALANCE:  TOO LITTLE COST SHIFTING CAN FORCE DEF. TO INCUR CRUSHING COSTS TO FORCE SETTLEMENT (McPEEK), BUT TOO MUCH COST SHIFTING CAN MAKE SUITS PROHIBITIVE FOR PL. (ZUBULAKE)

## 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)
*J C ASSOCS. v. FIDEITY & GUARANTY INS. CO.*, 2005 WL 1570140 (D.D.C. 07/01/05) FOR A CASE ASKING THE DEFENDANT TO PROVIDE INFORMATION NEEDED TO DEVELOP LIMITATIONS
*	**SEE *SEDONA PRINCIPLE, COMMENT 11(a) FOR A DISCUSSION OF SEARCH METHODOLOGIES

## 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 ONE-TIME, 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**

## SAMPLING

- SAMPLING IS SUPPORTED IN THE CASE LAW (*e.g. McPEEK;  WIGINGTON*; *HAGEMEYER N. AM. INC. v. GATEWAY DATA SCIENCES CORP.*, 222 F.R.D. 594 (E.D. WIS. 2004)), AND SEDONA PRINCIPLES, COMMENTARY 5(h) AND 11(b)
- SAMPLING IS ENDORSED BY THE PROPOSED AMENDMENT TO FRCP 34, WHICH SPECIFICALLY AUTHORIZES A PRODUCTION REQUEST SEEKING A SAMPLE OF E-INFORMATION
- YOU CAN PICK THE SAMPLE (*McPEEK*) OR YOU CAN LET THE REQUESTING PARTY PICK IT WITHIN CERTAIN PARAMETERS (*HAGEMEYER*)

**Notes:**
GIVES YOU INFORMATION ABOUT HOW MUCH TO PROVIDE (McPEEK) AND WHO SHOULD PAY FOR IT 

## WHAT ABOUT DELETED DATA?	

- REMEMBER THAT DATA DELETED FROM ACTIVE SYSTEM MAY BE CAPTURED ON BACKUP TAPES
- BUT UNDER PROPOSED FRCP 26(b)(2), DELETED  DATA IS NOT REASONABLY ACCESSIBLE, AND SO WOULD BE PRODUCIBLE ONLY ON A GOOD CAUSE SHOWING
- SEDONA PRINCIPLES PROPOSE THAT DELETED DATA RARELY SHOULD HAVE TO BE PRODUCED: ONLY UPON A SHOWING OF SPECIAL NEED (*see* PRINCIPLE 9 AND COMMENT 9(b))

- BUT ***RARELY*** DOES NOT MEAN ***NEVER***
*SIMON PROPERTY GROUP L.P. v. MYSIMON, INC.*, 194 F.R.D. 639 (S.D. IND. 2000) (WHILE LAMENTING THE “EXTREMELY SPARSE” RECORD, ORDERED RESTORATION AND PRODUCTION OF DELETED DATA FROM CERTAIN IDENTIFIED COMPUTERS – AT PLAINTIFF’S EXPENSE -- WHERE THERE WERE “SOME TROUBLING DISCREPANCIES WITH RESPECT TO DEFENDANT’S DOCUMENT PRODUCTION”)

*ROWE* (ALLOWED PLAINTIFFS TO OBTAIN, AT THEIR EXPENSE, RESTORATION AND PRODUCTION OF E-MAILS DELETED FROM ACTIVE SYSTEM BUT STILL ON BACKUP)
*ANTIOCH CO. v. SCRAPBOOK BORDERS, INC.*, 210 F.R.D. 645 (D. MINN. 2002) (APPOINTED NEUTRAL EXPERT TO RECOVER, AT PLAINTIFF’S EXPENSE, DELETED INFORMATION)
- IN DECIDING WHETHER COST SHIFTING IS APPROPRIATE, YOU CAN CONSIDER WHETHER IMPORTANT INFORMATION WAS DELETED AFTER A LITIGATION HOLD SHOULD HAVE BEEN IMPLEMENTED (*see *ABA STANDARD 29(b)(iv)(P))

## WHAT ABOUT METADATA?

- METADATA OFTEN WILL BE REASONABLY ACCESSIBLE; IT’S AUTOMATICALLY INCLUDED IN E-INFORMATION PRODUCED IN NATIVE FORMAT
- THERE MAY BE COSTS INCURRED IN SCRUBBING METADATA FROM E-INFORMATION THAT IS PRODUCED (*see* SEDONA PRINCIPLE, COMMENTARY 12(a))
- THE ISSUE TYPICALLY IS NOT THE COST OF OBTAINING METADATA, BUT WHETHER THE COST OF REVIEWING IS JUSTIFIED BY RELEVANCE

- SEDONA PRINCIPLE 12 AND COMMENTARY SAYS METADATA SHOULD NOT BE PRODUCIBLE ABSENT AGREEMENT OF PARTIES OR COURT ORDER, “UNLESS THE PRODUCING PARTY KNOWS THAT PARTICULAR METADATA IS MATERIAL TO THE RESOLUTION OF A DISPUTE”
*SEE ALSO *SEDONA PRINCIPLE 9 AND COMMENTARY 9(b)

**Notes:**
Is Sedona compatible with broad discoverability, even as tempered by balancing?

## WHEN METADATA MIGHT BE IMPORTANT

- TO ESTABLISH AUTHENTICITY OF AN E-DOCUMENT
- TO ESTABLISH WHEN A DOCUMENT WAS CREATED OR ACCESSED
- TO ESTABLISH THE CHANGES MADE IN A DOCUMENT FROM BEGINNING TO END
- FOR A RECENT CASE DISCUSSING METADATA AND REQUIRING ITS PRODUCTION, *SEE WILLIAMS v. SPRINT/UNITED MANAGEMENT CO.*, 230 F.R.D. 640 (D. KAN. 2005)

**Notes:**
MIGHT NOT ALWAYS BE ACCURATE; MIGHT ID WRONG AUTHOR

## 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

**Notes:**
ZUBULAKE SAID NEVER

- REMEMBER THAT COST-SHIFTING DOES NOT HAVE TO BE AN ALL-OR-NOTHING 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?

## SEDONA PRINCIPLE 12 AND COMMENTARY 12(c)

- PROPOSES THAT PRODUCTION OF E-INFORMATION ORDINARILY SHOULD BE IN ONE COMMONLY ACCEPTED FORMAT – PAPER, PDF OR TIF  (NOTE:  THOSE FORMS OF PRODUCTION WILL ELIMINATE METADATA)
- THE FORM OF PRODUCTION SHOULD ALLOW VERIFICATION OF AUTHENTICITY AND GENUINENESS
- REQUESTING PARTY SHOULD IDENTIFY THE DESIRED FORMAT, TO WHICH THE RESPONDING PARTY MAY OBJECT
- SUBSEQUENT PRODUCTION IN A DIFFERENT FORMAT WOULD BE AT THE COST OF THE REQUESTING PARTY

## PROPOSED AMENDMENT TO FRCP 34

- “THE REQUEST MAY SPECIFY THE FORM IN WHICH ELECTRONICALLY STORED INFORMATION IS TO BE PRODUCED”
- THE RESPONDING PARTY MAY OBJECT TO THE FORM REQUESTED
- IF THE REQUESTING PARTY DOES NOT SPECIFY THE FORM OF PRODUCTION, ABSENT AGREEMENT OR COURT ORDER THE RESPONDENT ***MUST*** PRODUCE E-INFORMATION “IN A FORM IN WHICH IT IS ORDINARILY MAINTAINED, OR IN AN ELETRONICALLY SEARCHABLE FORM”

- GENERALLY, THE RESPONDING PARTY MUST PRODUCE THE E-INFORMATION ONLY IN ONE FORM
- BUT, THE COMMENTARY SAYS THAT UPON GOOD CAUSE PRODUCTION IN AN ADDITIONAL FORM MAY BE ORDERED:  “ONE SUCH GROUND MIGHT BE THAT THE PARTY SEEKING PRODUCTION CANNOT USE THE INFORMATION IN THE FORM IN WHICH IT WAS PRODUCED”

## 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. Nat’l Ass’n 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. Nat’l Ass’n 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

## PROPOSED STANDSTILL

- Rule 26(b)(5)(B):
- 	“When a party produces information without intending to waive a claim of privilege it may, within a reasonable time, notify any party that received the information of its claim of privilege.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies.  The producing party must comply with Rule 26(b)(5)(A) with regard to the information and preserve it pending a ruling by the court.”

## 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

## NON-WAIVER AGREEMENTS

- Claw back and quick peek
- Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005)
- Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y.  2003) (Zubulake II)

## LEVERAGING AN AGREEMENT

- Reallocating costs
- Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (Zubulake II)
- Rowe v. William Morris Agency, 205 F.R.D. 421, 432 (S.D.N.Y. 2002)

## DANGER! NON-PARTY ACCESS

- Ability (or not) of a non-waiver agreement to bind non-parties
- Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 231 (D. Md. 2005)
- Bowne v. AmBase Corp., 150 F.R.D. 465, 478-79 (S.D.N.Y. 1993)
- Court approval may give court review over later non-party discovery demands
- United States v. Star Scientific, 205 F. Supp. 2d 482, 486 (D. Md. 2002)

## RULE OF EVIDENCE 502

- A Potential Solution

## 502(e)

- “An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.”

## 502(d)

- “A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.”