1 Northwest Suburban Bar Association - PowerPoint Presentation

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Northwest Suburban Bar Association November 2, 2011

Presented by: George Bellas www.bellas-wachowski.com

E-DiscoverySlide2

What is e-Discovery ? ? ?

e-discovery is the collection, preparation, review and production of ESI which is relevant to a legal proceeding.

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An Electronic World

“93% of information created today is first generated in digital format”

Kenneth J. Withers, Electronic Discovery: The Challenges and Opportunities of Electronic Evidence, Address at the National Workshop for Magistrate Judges (July 2001).Slide4

It’s no longer on paper

It’s all in the computersSnail Mail is dying103 billion emails a day43 billion IM’s a daySome of this information is useful.

We need to get the useful info and then figure out how to use it.4Slide5

Computers are one big

filing cabinet! E-Discovery is just another tool to find the facts and dig for the truth in order to build your case and help your clients.

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e-Mission Impossible?

Get the ESI needed for your case and then figure out how to use it.

But with computers this is not always easy to do – results in a lot of litigation.

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Storage Devices:

Desktop Computers/Hard Drives/LaptopsBackup TapesPortable Flash Drives, Floppy, Zip and Jaz Diskettes

Optical Media - CDs, CD-Roms, DVDs Home ComputersPDAs, Blackberry® smartphones

and Cell PhonesDigital Cameras and Flash MediaVoicemailFax Machines, Copiers and PrintersiPod® and

iPad

®

mobile digital devices, Kindle™

and Nook

™

eReaders

, etc.

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e-Admissibility – Nothing New

Traditional Rules Still ApplyRelevantAuthentication

HearsayBest Evidence Rule (. . but what’s the original document?)Probative Value & Unfair Prejudice8Slide9

Admissibility of ESI

Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.MD. 2007)a

landmark decision about the admissibility and authentication of digital evidence was set down in a 100-page opinion by Magistrate Judge

Paul W. Grimmestablished a detailed baseline for the use of ESI before his court. Given the guidelines and references provided by the judge, it now becomes difficult for counsel to argue against the admissibility of electronic evidence.

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Illinois Rules for

e-DiscoveryRule 201(b)(1) defines documents to include

“all retrievable information in computer storage”Rule 214 requires production of all retrievable information in computer storage in printed form. OUTDATED ! ! ! !

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Illinois Courts’ Simplistic

ApproachComments to Rule 214 – reason for production of paper . . . .

“. . . intended to prevent parties producing information from computer storage on storage disks . . . Which may frustrate the party requesting discovery from being able to access the information produced.”Outdated and ignores the importance of the original data

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“tif” is just a Picture

This is what you are currently getting in discovery!Defendant prints out and images a .tif

fileMany files take up more than 1 page (spreadsheets)Result is data spread over more than one page resulting in separate .tif

images

All underlying formulae are stripped and it is not searchable –

A

.

tif

is just a picture of a document!

To salvage it, OCR is administered

But OCR is inherently error prone

OCR spell checking does correct errors

Numeric data cannot be spell-checkedSlide13

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Effects of a “tif” tactic . . .

By the time you get an edited picture of a picture . . . . Usability – Gone

Searchability – Crippled Integrity – Destroyed Content

–

Misrepresented

If you want to get

the useful METADATA

and see the document in its original format , you must

insist on getting the ORIGINAL ESI

FILES

. . . but be careful for what you ask for!Slide14

Courts are seeing the light!

Rather than simply copying the electronic media to permit ... search and review ... on a computer screen, the plaintiffs spewed the digital production onto paper and then copied the paper for review.

Thus, the court must disagree with the plaintiffs counsel’s assertion that this case was a paradigm of efficient litigation. In re Instinet Group

, 2005 Del.Ch. LEXIS 195 (Del.Ch. 2005)14Slide15

E-Discovery $ $ $ $

The cost of pursuing e-discovery issues is prohibitive for most small offices . . . . e-discovery threatens to eat up the value of litigationNew Rules

attempt to make the process more affordable15Slide16

Federal Rules –

a Ray of Light!Amendments effective on 12/6/06 specifically address ESI

The drafters noted that “the discovery of ESI is becoming more time consuming, burdensome and costly.”Slide17

Fear Not the Federal

Rules

Big Business is terrified of the federal e-discovery rulesThey have spent millions preparing for e-discovery and consulting with e-discovery expertsWe will be getting generic collections and not specific answers

Embrace your fearsSlide18

“ESI” – FRCP 34

Adopted with the Amendments to the Federal Rules of Civil Procedure in December 2006.

ESI is “Electronically Stored Information”

and includes all discoverable informationESI is subject to production under Rule 34(a)Under Rule 34(b) the form of production of ESI

can be specified by the requesting party in a request, or

thereafter by a responding party in a response

but if you don’t specify,

it must be produced in the form in which is ordinarily maintained

(

ie

. as ESI)Slide19

Format for Production of ESI

Rule 34(b) requires the party requesting ESI to specify the format in which information should be produced. If not specified, the Rule permits the responding party to produce ESI either in:

the format in which it is ordinarily maintained, ora format that is reasonably usable19Slide20

The big change is the

Meet and Confer

requirement of Rule 16Slide21

Required Disclosures

Rule 16(b) scheduling orders permit the courts to include provisions for disclosure or discovery of ESI

Parties are required to discuss preservation and disclosure of ESI at Rule 26 planning conferences in a “Meet and Confer” meeting.Parties are required to include ESI

in their initial disclosures under Rule 26(a).Slide22

7th Circuit’s E-Discovery

Pilot ProgramChair: Chief Judge James Holderman

Includes lawyers, in-house counsel and consultants.Several Lawyers are here today.Primary Goal is to change the pretrial dynamic to lessen the cost of e-discovery.Slide23

Principle 1.01 – Purpose

To “incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)”

To help courts secure the “just, speedy, and inexpensive determination of every civil case

, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information without Court intervention.” Slide24

Cornerstones of the Principles

Cooperation

ProportionalitySlide25

Principle 1.02 –

CooperationAn attorney’s zealous representation is not compromised by cooperating in discoveryFailure

of counsel/party to cooperate in “facilitating and reasonably limiting discovery requests and responses” contributes to a “risk of sanctions”Note: Read Fed. R. Civ. P. 26(g) and Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)Slide26

Zealousness

Dying No longer exists in the ABA model rules N

o longer has a place in our courts.26Slide27

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Content Accessibility –

the New BattlefieldFRCP allow responding parties to evaluate the relative expense and difficulty of producing information from one system (source) versus another. The burden and costs may make the data “not reasonably accessible”

The question of what is – and what is not – reasonably accessible has already proven to be fertile grounds for disputesSlide28

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Reasonably Accessible – 7 Factors from Zubulake

The extent to which the request is specifically tailored to discover relevant information;The availability of such information from other sources;

The total cost of production, compared to the amount in controversy;The total cost of production, compared to the resources available to each party;The relative ability of each party to control costs and its incentive to do so;The importance of the issues at stake in the litigation; and

The relative benefits to the parties of obtaining the information.Slide29

Proportionality

Emerging law has shifted the costs of recovery of data to the requesting party. The old rules provided that the court could issue an order to protect a party against “undue burden or expense.” This was used as a shield by Defendants.

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Court Response:

“Proportionality”Courts developed new rules. See

Zubalake I – 217 FRD 309Accessible vs. Inaccessible data

The cost of producing accessible data is borne by the producing partyThe cost of producing inaccessible data is weighed under the 7 factor test developed by the Judge in Zubulake I and then codified in the Amendments.

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Principle 1.03 –

ProportionalityFed. R. Civ. P. 26(b)(2)(C) proportionality standard should be applied in formulating a discovery plan ESI production requests and responses “should be reasonably

targeted, clear, and as specific as possible”Note: Proportionality standard applies to all discovery, even “accessible” ESISlide32

Principle 2.06 –

Production Format Requires a good-faith effort to agree on the format of ESI production at the initial 26(f) conference

If unable to agree, should be raised promptly with the courtESI stored in a database can be produced by querying the database for information resulting in a report or other reasonably useable and exportable electronic fileSlide33

Principle 2.06 –

Production Format (Costs)The requesting party is generally responsible for the cost of creating its copy of the requested informationDiscussion of cost-sharing encouraged

Particularly when discussing the addition of optical character recognition (OCR) or other upgrades of paper documents, or if non-text-searchable electronic information is contemplated by partiesSlide34

Proportionality – Factors to Consider:

What is the relevance of proposed discovery. This is a fundamental gate-keeping question.

Is the discovery sought from a party or a nonparty?Does the discovery sought relate to a key player?Does the discovery relate to a key time period?Does the discovery relate to the core issues in the case?Does the discovery relate to a unique source of information?What are the burdens and costs involved?Is the information from a source that is not reasonably accessible?

What is the amount in controversy?What is the relative importance of issues at stake in the case?What are the relative resources of the parties?

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Principle 3.01 – Education

It is “expected” that in any “litigation matter” that counsel will be familiar withThe federal rules on e-discoveryThe 2006 Advisory Committee report concerning the federal e-discovery amendments

The Seventh Circuit’s Pilot Program E-Discovery PrinciplesSlide36

Discovery Pilot Program

Seeking to advance the Principles in other jurisdictionsWeb site

:www.discoverypilot.com

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State Courts

New York is considering the adoption of the Federal RulesNew Jersey courts are acting on their own to adopt the Principles

California is working on its own set of rules (no big surprise here)Illinois . . . . is doing nothing . . . but something may be afoot.

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E-Discovery is Expensive

The cost of pursuing e-discovery issues is prohibitive for most small offices . . . . There are changes afoot to make the process more affordableWe need to take advantage of the rules

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Practice Suggestions

Use the Federal Rules as a guidelineFocus on what you need, not what you want.Cooperate with the other attorney. Failure to cooperate will be punished.

Find ways to minimize the cost of e-discoveryProtect your client from inadvertent destruction. 39Slide40

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Send Letters ASAP

Preservation LetterScope of Discovery Letter asking for Rule 26 DisclosuresSEE SAMPLE LETTER

Demand production in a usable formatSEE SAMPLE LETTERSlide41

Additional Resources:

Seventh Circuit Pilot Program:www.discoverypilot.com

Sedona Conference and Glossary:www.thesedonaconference.org/EDRM:

www.edrm.net/Merrill Knowledge Source:www.merrillcorp.com/merrill-knowledge-source.htm

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