Keating Muething & Klekamp E-Discovery Fundamentals CLE. Larry W. Conner, Esq. (Bud) Electronic Discovery Specialist Brenna L. Penrose, KMK Stephanie M. Maw, KMK Cincinnati, OH November 8, 2007. Session Overview. E-Discovery Fundamentals The Paperless Office - PowerPoint PPT Presentation
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Electronically Stored InformationElectronically Stored Information
• Rule 34(a) adds an entirely new category of discoverable information called “Electronically Stored Information” (“ESI”) • Specifically includes writings, drawings, images and other
data or data compilations stored in any medium from which information can be obtained or translated into a reasonably usable form.
Previous Rule on Discovery
• Everything relevant is discoverable• Responding parties seek protective order under Rule 26(c)
• Must demonstrate “affirmative and compelling proof” of “undue burden”
United States of America v. Americagroup Illinois, Inc., 2005 U.S. Dist. LEXIS 24929 (N.D. Ill. October 21, 2005)
Rule 26(b)(2)(B): Case LawRule 26(b)(2)(B): Case LawFocus is on Burdens and Costs, Not Type of Data
• Semsroth v. City of Wichita, 2006 U.S. Dist. LEXIS 83363 (D. Kan. Nov. 15, 2006)
• Ameriwood Indus., Inc. v. Liberman, 2007 U.S. Dist. LEXIS 10791 (E.D. Mo. Feb. 13,2007); Ameriwood Indus., Inc. v. Liberman, 2006 U.S. Dist. LEXIS 93380 (E.D. Mo. Dec. 27, 2006)
• Cenveo Corp. v. Slater, 2007 U.S. Dist. LEXIS 8281 (E.D. Penn. Jan. 31, 2007)
• Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 U.S. LEXIS 7580 (D. Minn. Feb. 1, 2007)
• Thielen v. Buongiorno USA, Inc., 2007 U.S. Dist. LEXIS 8998 (W.D. Mich. Feb. 8, 2007)
• Peskoff v. Faber, 2007 U.S. Dist. LEXIS 11623 (D. D.C. Feb 21, 2007)• Rule 45: Guy Chemical Co. v. Romaco, Inc., 2007 U.S. Dist. LEXIS
Reasonable AccessibilityReasonable AccessibilityUndue Burden or CostUndue Burden or Cost
Rule 26(b)(2)(C): • (C) The frequency or extent of use of the discovery methods
otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: • the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or less expensive;
• the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or
• 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 court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
• An entity is required to preserve documents and electronic data when it “knows or reasonably should know” that information may be relevant to pending or anticipated litigation.
• Once litigation is anticipated, a party must suspend its routine document retention/destruction policy and put in place a legal hold to preserve what it knows, or reasonably should know, is relevant to the action.
• Hynix Semiconductor, Inc. v. Rambus, Inc., 2006 U.S. Dist. LEXIS 30690 (N.D. Cal. Jan. 4, 2006)
• Although Rambus contemplated litigation prior to holding its annual “shred day,” court held the duty to preserve evidence did not arise until later when Rambus initiated a “beauty contest” to select litigation counsel.
• Samsung Elecs. Co. v. Rambus, Inc., 2006 U.S. Dist. LEXIS 50007 (E.D. Va. July 18, 2006)
• Court rejects Hynix noting that by the time Rambus initiated “shred day,” it had identified most likely and attractive litigation targets, settled on possible legal theories, and identified relevant documents for both preservation and destruction
• A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.
Mandatory DisclosuresMandatory DisclosuresDuty to Disclose/Duty to InvestigateDuty to Disclose/Duty to Investigate
Rule 26(a): Initial Disclosures
• Must disclose early on documents and “electronically stored information.”
• Information that may be used to support “claims or defenses”
• Do not have to disclose information that you do not intend to use. In re Novellus Systems, Inc. Case No. 5:06-cv-03514-RWM (N.D. Cal. Jan. 5, 2007)(not for publication).
• Parties directed to discuss e-discovery issues during their discovery planning conference. Must discuss Issues related to the disclosure or discovery of electronically-stored information, including:
• Preservation of evidence
• Form of production
• Consideration of inadvertent production and potential waiver of privilege
Prior to the Conference• Exchange information on Electronically Stored Information (ESI)
prior to the conference• Network Design• Types of Database• Database Dictionaries• Access Control List/Security Access Logs• Document Retention Policy• Organizational Chart for Information Systems Personnel• Backup and Systems Recovery Routines
• Discuss scope/time frame parameters of ESI
• Discuss internally – ESI Coordinator for both sides
• Secure Litigation Hold* Adapted from District of Maryland Suggested Protocol for Discovery of Electronically Stored Information,
2007
Meet and Confer Best Practices*Meet and Confer Best Practices*
Meet and Confer Best Practices*Meet and Confer Best Practices*
At the Conference• Nature of Information Systems & Custodians• Anticipated Scope of Requests/Tiered Production• Objections• Form of Production, (including production in paper), how organized,
bates, redacted• Production and Cost of Metadata• Costs and Burdens Generally/Cost – Shifting/ASP• Preservation Issues/Protective Orders• Discuss “Claw-Back,” “Quick Peek” Agreements or How Privileged
Information May Be Handled• Information Not Reasonably Accessible/Testing or Sampling Search
• If document request or subpoena does not specify the form for producing “electronically-stored information” (and absent other agreement by the parties), the responding party must produce in the form in which it:
• Ordinarily maintains the information or
• Form or forms that are reasonably usable
• Electronic information need only be produced in one form.
• If party fails to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
• Typically for lack of preservation• Also fact-specific
• Wachtel v. Health Net, Inc., 2006 US Dist. LEXIS 88563 (D. N.J. Dec. 6, 2006)(not for publication). • one of the “wors[t] cases of litigation abuse,” • deemed the facts of spoliation and willful conduct admitted• precluded evidence • ordered monetary sanctions and the appointment of a
discovery monitor• outside counsel was also found to have engaged in
Lorraine v. Markel American Ins. Co., PWG-06-1893 (D. Md May 4, 2007)
• After discovery, both parties moved for summary judgment to enforce a private arbitrator’s award that certain damage to plaintiff’s yacht was caused by lightening. Defendant sought to uphold the arbitrator’s decision limiting the extent of plaintiff’s damages. Plaintiff argued the arbitrator had exceeded his authority by limiting those damages. In denying both motions, the court held that emails attached to both motions and offered as parol evidence were inadmissible due to parties’ failure to lay the appropriate evidentiary foundation.
Lorraine v. Markel American Ins. Co., PWG-06-1893 (D. Md May 4, 2007) (con’t)
• The court held that whenever electronic documents are offered as evidence, the party proffering the electronic information must consider the following: • whether the electronic evidence is relevant (Rule 501);
• the authenticity of the information (Rule 901(a));
• whether the information is hearsay, including relevant expectation, if the document is offered for its substantive truth (Rule 801);
• the original writing rule (Rules 1001–1008); and
• whether the probative value of the document is substantially outweighed by the danger of unfair prejudice or other considerations (Rule 403).