E-Discovery in Employment Litigation Identifying, Preserving, Collecting and Producing Electronically Stored Information 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JANUARY 9, 2013 Presenting a live 90-minute webinar with interactive Q&A Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Danuta Bembenista Panich, Shareholder, Ogletree Deakins, Indianapolis Niloy Ray, EDiscovery Counsel, Littler Mendelson, Chicago Jennifer Mott Williams, Morgan Lewis & Bockius, Houston
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E-Discovery in Employment LitigationIdentifying, Preserving, Collecting and Producing Electronically Stored Information
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Danuta Bembenista Panich, Shareholder, Ogletree Deakins, Indianapolis
Niloy Ray, EDiscovery Counsel, Littler Mendelson, Chicago
Jennifer Mott Williams, Morgan Lewis & Bockius, Houston
Tips for Optimal Quality
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when prompted. Otherwise, please send us a chat or e-mail
� Person-to-person (e-mail, instant messaging, text
messages, tweeting)
� Mass (web-pages, articles, webinars)
� Systems and information infrastructure
� Hidden or alternative use data
13
TANGENTIAL INFORMATION
� Document Retention Policies and Procedures
Jones v. Bremen High School Dist. 228, 2010 WL 2106640, *9 (N.D. ILL., 2010)
� What the Company has done to preserve and collect relevant ESIcollect relevant ESI
In re eBay Seller Antitrust Litigation, 2007 WL 2852364 at *2 (N.D. Cal., 2007)
Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga., 2007)
Cannata v. Wyndham Worldwide Corp., 2:10-cv-00068-PMP-LRL (D. Nev. August 10, 2011)
14
FLIP-SIDE OF THE COIN: DISCOVERY FROM PLAINTIFFS
� Calendars
� Diaries
� Correspondence
� Personal records of time worked
� Job search
15
PERSONAL MEDIA
� Phone/text logs
� Personal email account activity
� Social media
EEOC v. Honeybaked Ham Co. of Georgia, 2012
WL 5430974 (D. Colo. November 7, 2012)WL 5430974 (D. Colo. November 7, 2012)
Howell v. Buckeye Ranch Inc., 2012 U.S. Dist.
LEXIS 141368 (S.D. Ohio October 1, 2012)
Mailhoit v. Home Depot USA, Inc., 2012 WL
3939063 (C.D. Cal. Sept. 7, 2012)
Mancuso v. Florida Metropolitan University Inc.,
2011 WL 310726 (S.D. Fla. January 28, 2011)
16
PRESERVATION&
DEFENSE OF DEFENSE OF PROCESS
17
THE DUTY TO PRESERVE
� From where does it come?
� To whom is it owed?
� Who can enforce it?
18
PRESERVATION TRIGGERS
� Litigation is commenced
� Litigation is reasonably anticipated
19
REASONABLE ANTICIPATION
� For Plaintiffs� Decision to litigate
� Preparatory steps
�Retaining counsel�Retaining counsel
�Making a demand
Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)
20
REASONABLE ANTICIPATION
� For Defendants
� Charge (Zubulake v. UBS Warburg LLC, 220
F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”))
� Demand letter (Goodman v. Praxair Services,
Inc., 632 F.Supp.2d 494 (D.Md. 2009); Major Tours,
Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))
� Internal complaint (Broccoli v. Echostar
Communications Corporation, 229 F.R.D. 506 (D.Md.
2005))
� Consensus belief (Zubulake IV)
� Widespread litigation in industry (Phillip M.
Adams v. Dell, Inc., 621 F.Supp. 1173 (D.Utah 2009))
21
SCOPE OF PRESERVATION
� Key Players
� “Likely to have information relevant to the events”
� Agents
� Legal Control
� Cooperative File Sharing
22
� Databases
� Other Centrally Controlled Sites
� The Cloud
� Shared Work Spaces
Custodian Controlled
ESI SOURCES
� Custodian Controlled
� PCs and Laptops
� Portable Devices and Media
� Home Computers
� BYOD
23
CHALLENGES OF HOME COMPUTERS & BYOD
� Company does not own
� Company may not control
� Company may be responsible for
preservation & production
� Employee has significant privacy interest
24
HOME COMPUTERS AND PERSONAL DEVICES
� Review policies to help determine obligations
� Collect for preservation
� Address privacy issues via collection strategystrategy
� Vendor collection
� Self collection
� Develop forward strategies
25
DEFENSE OF PROCESS TIP
� Document decisional process
� Approach to investigation
� Rationale for selecting information types
� How identified relevant custodians
� Who was interviewed� Who was interviewed
� Who is IT liaison
� Document preservation strategies chosen
26
PRESERVATION NOTICES
Should it be in writing?
Pension Committee: YES!
Jones v. Bremen High School : Not Necessarily.
Defense of Process: ABSOLUTELY
27
PRESERVATION NOTICES
� Content
� Nature of claim and summary of allegations
� Relevant period and whether ongoing
� Sources and locations of data
� Types of information sought and definition of
relevancerelevance
� What recipient should do: preserve; collect;
notify others
� Methodology for required actions
� Accountability
� Certification
28
PRESERVATION NOTICES
� Methodology
� Dealing with metadata
� How to create .pst folders
� How to preserve ephemeral data
� Using share drives or other shared resources� Using share drives or other shared resources
� Remote collection
� Additional distribution of notices
WARNING: Cytec Carbon Fibers, LLC v. Hopkins
29
PRESERVATION NOTICES AREN’T JUST FOR INDIVIDUAL
CUSTODIANS
Remember
System Owners & IT
30
IMPLEMENTATION
Comprehensive Plan:
Haraburda v. Arcelor Mittal USA, Inc., Haraburda v. Arcelor Mittal USA, Inc.,
2011 WL 2600756 (N.D. Ind. June 28, 2011)
31
IMPLEMENTING PRESERVATION NOTICES
� Steps after issuance
� Track certifications
� Track compliance
� Prompt remedial action
� Regular attorney oversight
� Issue reminders
� Prioritize for collection
� Address replacement custodians
� Document for defense of process
32
PRESERVATION NOTICES
Remember: Notices, reminders, and
steps taken may be discoverable!
� Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, � Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, 2011) (even if privileged, subject to production because of spoliation)
� Chang v. United States, No. 02-2010 (D.D.C. Aug. 19, 2010) (not privileged)
� Major Tours Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009) (privileged unless spoliation)
33
ADDITIONAL CRITICAL PRESERVATION STEPS
� Automated functions� Auto-delete
� Size limits
� Back-up
Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK (N.D. Cal. 2012)
Voom HD Holdings, LLC v Echostar Satellite, L.L.C., 2010 N.Y. Misc. LEXIS 6711, 47-50 (N.Y. Sup. Ct. Nov. 3, 2010)
Advanced Micro Devices v. Intel Corp. (In re Intel Corp. Microprocessor Antitrust Litig.), 2008 U.S. Dist. LEXIS 98898 (D. Del. May 9, 2008)
Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008)
34
ADDITIONAL PRESERVATION STEPS
� Suspension of retention period expiration
� Sometimes ephemeral system � Sometimes ephemeral system information� Access logs
� Internet use histories
� Audit trails
35
CAUTION: ARCHIVING DATA
Often undertaken to preserve without impacting system functionality.
“if a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material…then it should not be discoverable material…then it should not be entitled to shift the costs of restoring and searching the data”
In the electronic age, this meet and confer should include a discussion on whether each side possesses
information in electronic form, whether they intend to produce such material [and so on].
- In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)
At the initial status conference, counsel must be prepared to discuss what agreements they have reached
regarding discovery of Electronically Stored Information ("ESI") and what area of disagreement they have
with regard to discovery of ESI.
-Merriman v. Minn. Life Ins. Co., 2012 U.S. Dist. LEXIS 124854 (E.D. Wisc. 2012)
RULE 26(f) MEET-&-CONFERS
PREPARATION
It appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at theIt appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the
outset of the case. The briefing discloses that Defendants' counsel was not aware of the structure of
Defendants' computer systems until recently. It is inappropriate for Defendants to only now—three years
after the case was filed and after discovery has closed—investigate their electronic systems.
- News America Marketing v. Floorgraphics, 2012 U.S. Dist. LEXIS 76543 (D.N.J. 2012)
The court opened the door to spoliation-related discovery, ordering the deposition of a 30(b)(6) witness to
“bind the company on electronic discovery disputes.”
RULE 26(f) MEET-&-CONFERS
COOPERATION & TRANSPARENCY
If the parties are unable to telephonically conduct their conference and jointly file a Rule 26(f) report …
they will be required to attend a Rule 26(f) conference in person.
- Jacobs v. Lambda Research, 2012 U.S. Dist. LEXIS 31066 (S.D. Ohio 2012)
Cooperation … requires forgoing the short term tactical advantages afforded one party to information
asymmetry so that … parties communicate candidly enough to identify the appropriate boundaries of
discovery. … In place of gamesmanship, cooperation substitutes transparency and communication.
- "The Case for Cooperation," 10 SEDONA CONF. J. 339, 344-45 (2009)1
1 See Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431, at *2 (S.D.N.Y. Aug. 13, 2009); In re Direct Sw., Inc., Fair Labor Standards Act (FLSA) Litig., 2009 WL 2461716, at *1, 2
(E.D. La. Aug. 7, 2009); Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, No. 3:07-cv-449, 2009 WL 2243854, at *2 (S.D. Ohio July 24, 2009); Dunkin’ Donuts Franchised Rests. LLC
v. Grand Cen. Donuts, Inc., 2009 WL 1750348, at *4 (E.D.N.Y. June 19, 2009); Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 424-25, 427 (D.N.J. May 19, 2009); Newman v.
Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. Apr. 6, 2009); William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. March 19, 2009); S.E.C. v.
Co., Civ. No. 08-2017, 2008 U.S. Dist. LEXIS 103822, at *4 (D. Kan. Dec. 23, 2008); Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D.
350, 353-56, 358-59, 362 (S.D.N.Y. Nov. 21, 2008); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359, 363 (D. Md. 2008).; Mancia v. Mayflower Textile Servs. Co., 253
F.R.D. 354, 363 (D. Md. 2008).
RULE 26(f) MEET-&-CONFERS
KEY STRATEGIC OBJECTIVE
“JUST, SPEEDY, AND INEXPENSIVE”
RULE 26(f) MEET-&-CONFERS
MANAGING SCOPE
the timing and
sequence of
discoverySunflower Elec.
Power Corp. v.
Sebelius, 2009 U.S.
practical
agreement on
facts truly at issue
spanning custodian set
Sebelius, 2009 U.S.
Dist. LEXIS 22775
(D. Kan. 2009)
agreement on
search terms,
date ranges,
key players
and the likeRomero v. Allstate
Ins. Co., 271 F.R.D.
96 (E.D. Pa. 2010)
phased approach
to expert
discoveryFiber Optic Designs v.
New England Pottery,
(D. Colo. 2009)
data sources
timespans
RULE 26(f) MEET-&-CONFERS
CONTROLLING PRODUCTION
Defendant has provided no reason for not producing the [ESI] in electronic format other than inconvenience
and Defendant's mistaken belief that Plaintiff's format request came after Defendant had begun production.
- Lawson v. Sun Microsystems, 2007 U.S. Dist. LEXIS 65530 (S.D. Ind. 2007)
The Court is therefore presented with a defendant in a predicament essentially of its own making. Kanbar
faces the task of sorting page by page through a mass of documents in a limited period of time. However,
this situation was largely the result of Kanbar's own actions, [including] the lack of a demand for electronic
production … . [I]ts motion to compel 3M to "organize" or "itemize" the documents is DENIED.
- 3M Co. v. Kanbar, 2007 U.S. Dist. LEXIS 45232 (N.D. Cal. 2007)
Plaintiff argues that defendant should be required to produce responsive emails in their native file format.
Defendant … argues that plaintiff did not raise the issue [at the meet-&-confer]. The parties have a mutual
obligation to discuss this issue at the [meet-&-confer]. [M]etadata for only one document will be required.
- Brinckerhoff v. Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)
Most metadata is of limited evidentiary value, and reviewing it can waste litigation resources. … ImPax has
not demonstrated a particularized need for the metadata. Therefore, [the motion to compel] is denied.
-Wyeth v. ImPax Laboratories, 248 F.R.D. 169 (D. Del. 2006)
In light of the dubious value of metadata and plaintiffs' total failure to explain its relevance to the claims
and defenses in this action, plaintiffs' application to compel its production is denied.
- Kingsway Financial v. PriceWaterhouse-Coopers, 2008 U.S. Dist. LEXIS 105222 (S.D.N.Y. 2008)
RULE 26(f) MEET-&-CONFERS
PROTECTING THE CLIENT
This lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution ofThis lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution of
a case. Had that been done … the parties might have been able to work out many, if not all, of their
differences without court involvement or additional expense, thereby furthering the "just, speedy, and
inexpensive determination" of this case. Instead, these proceedings have now been bogged down in
expensive and time-consuming litigation of electronic discovery issues only tangentially related to the
• Kleen Products, LLC, v. Packaging Corporation of America (N.D.
Ill.)
• Global Aerospace Inc. v. Landow Aviation, L.P. dba Dulles Jet
Center (Vir. Cir. Ct.)
• In re: Actos Products Liability Litigation (W.D. La.)
• Federal Housing Finance Agency v. JP Morgan Chase & Co.(S.D.N.Y.)
• Eorhb, Inc. v. HOA Holdings LLC (Del. Ch.)56
Defensibility – Predictive Coding is As Accurate if Not More Accurate than Pure
Linear Review
“There is not one single measure for which manual review is significantly better than technology – assisted review.”
– Maura Grossman & Gordon Cormack, Technology Assisted Review in E-Discovery Can be More Effective and More Efficient than Exhaustive Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).
Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).
“On every measure, the performance of the two computer systems was at least as accurate… as that of a human review.”
– Herbert L. Roitblat, Ann Kershaw and Patrick Oot, Document Categorization vs. Manual Review, 61 J. of Am. Soc’y for Info. Sci. &
Tech. 70 (2010).
“Statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review.”
− Da Silva Moore v. Publicis Groupe
57
Partnering with Your Opponent
• Cooperation with the other side no matter the protocol
– Edelen v. Campbell Soup Co., 265 F.R.D. 676 (N.D. Ga. 2010) –failure to cooperate on search terms, timeframe, and number of custodians led to sanctions