E-DISCOVERY
Hélène Kazanjian
Anne Sterman
Trial Division
©2011 Office of Massachusetts Attorney General Martha Coakley
ELECTRONICALLY STORED
INFORMATION (ESI)
ESI includes email, word processing files, databases
© 2011 Office of Massachusetts Attorney General Martha Coakley
ELECTRONICALLY STORED
INFORMATION (ESI)
NO CASE IS TOO SMALL TO
CONSIDER ESI
• Most cases have emails
• Most cases have electronic documents
© 2011 Office of Massachusetts Attorney General Martha Coakley
SCOPE OF DATA
• In addition to searching for discoverable material in
physical locations, such as file cabinets, we are
required to search and produce documents that are
stored electronically.
• METADATA - information about an electronic file,
such as the date it was created, its author, when and
by whom it was edited, what edits were made, and, in
the case of e-mail, the history of its transmission
© 2011 Office of Massachusetts Attorney General Martha Coakley
SCOPE OF DATA
HOW DATA ARE STORED
• Media (floppy discs, hard drives, CD/DVDs, tapes)
• Devices (computers/servers/laptops/tablets, smart
phones/cell phones, flash drives, external hard
drives, answering machines, digital cameras, MP3
players, gaming consoles, copiers/scanners)
© 2011 Office of Massachusetts Attorney General Martha Coakley
SCOPE OF DATA
WHERE ARE DATA STORED
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Office
Home
Centralized email
Network servers
Servers for public email providers - Google/Hotmail/Yahoo
Cloud providers
CDs, floppy disks flash drives - anywhere
Smart phones/cell phones – anywhere
Backup tapes stored on-site or off-site
Long –term off-site storage
© 2011 Office of Massachusetts Attorney General Martha Coakley
FEDERAL RULES OF
CIVIL PROCEDURE
• Fed.R.Civ.P. 34 -- Producing electronically stored
information
• A party may serve a request on any other party for
electronically stored information
• A party may object to producing electronically stored
information. If the party objects to producing the information
in the requested form or if no form was specified, the party
must state the form it intends to use.
• If the request does not specify a form for producing
electronically stored information, a party must produce it in
the form in which it is ordinarily maintained or in a
reasonably usable form
© 2011 Office of Massachusetts Attorney General Martha Coakley
FEDERAL RULES OF
CIVIL PROCEDURE
• Fed.R.Civ.P. 16(b) Scheduling Order
A scheduling order may “provide for disclosure or discovery of
electronically stored information” 16(b)(3)(B)(iii)
•
Fed.R.Civ.P. 26(f)(3) Discovery Plan (“meet and confer”)
A discovery plan must state the parties’ views and proposals on:
(C) any issues about disclosure of discovery of electronically
stored information, including the form or forms in which it should
be produced.
• Fed.R.Civ.P. 26(b)(2)(C) Burdensomeness
The trial court has the power to limit discovery “if the burden or
expense of the proposed discovery outweighs its likely benefit”
© 2011 Office of Massachusetts Attorney General Martha Coakley
PROPOSED MASSACHUSETTS
RULES OF CIVIL PROCEDURE
• Mass.R.Civ.P. 34 Producing electronically stored
information
• A party may serve on any other party a request for
electronically stored information.
• A party may object to producing electronically stored
information. If the party objects to producing the information
in the requested form or if no form was specified, the party
must state the form it intends to use.
• If the request does not specify a form for producing
electronically stored information, a party must produce it in
the form in which it is ordinarily maintained or in a
reasonably usable form
PROPOSED MASSACHUSETTS
RULES OF CIVIL PROCEDURE
• Rule 16 Pre-trial conferences
• Court may convene a conference to consider various
matters, including “the preservation and discovery of
electronically stored information.”
• Court shall make an order reflecting action taken at the
conference
• Rule 26 Electronically Stored Information
Conferences
• At the request of any party a conference should be held to
develop a plan relating to the discovery of electronically
stored information.
© 2011 Office of Massachusetts Attorney General Martha Coakley
ADDITIONAL RULES
• Rule 37 (Sanctions)
• Rule 45 (Subpoena)
© 2011 Office of Massachusetts Attorney General Martha Coakley
DUTY TO PRESERVE
AND PRODUCE
“Once a party reasonably anticipates litigation, it must
suspend routine document retention/destruction policy
and put in place a ‘litigation hold’ to ensure the
preservation of relevant documents.”
Zubulake v. Warburg LLC, 220 F.R.D. 212, 218
(S.D.N.Y. 2003)
© 2011 Office of Massachusetts Attorney General Martha Coakley
DUTY TO PRESERVE
AND PRODUCE
When is litigation reasonably anticipated?
Employment case – union grievance, MCAD
filing, date of termination
Tort case – receipt of presentment, date of
incident
Contract case – date of breach
© 2011 Office of Massachusetts Attorney General Martha Coakley
SPOLIATION
Destruction or alteration of evidence
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Adverse Inference Jury instruction
Monetary Sanctions
Attorney Sanctions
Defense to liability
Dismissal or default
Evidentiary sanctions
Criminal contempt of Court
© 2011 Office of Massachusetts Attorney General Martha Coakley
SANCTIONS
Sanctions for e-discovery violations at ‘historic’ high,
Christina Pazzanese
Massachusetts Lawyers Weekly (2/9/2011)
2009 data -
• Violations prompting the most sanctions were
for failure to preserve evidence.
• Sanctions included monetary awards from
$250-$8.8 million.
© 2011 Office of Massachusetts Attorney General Martha Coakley
DUTY TO PRESERVE
AND PRODUCE
CASES
• Zubulake v. UBS Warburg LLC,
216 F.R.D. 280 (2003) (allocating e-discovery costs between parties)
222 F.R.D. 212 (2003) (sanctions for negligently failing to preserve evidence)
229 F.R.D. 422 (2004) (sanctions for willfully failing to preserve evidence)
• Pension Committee Of Univ. of Montreal Pension Plan v. Bank of
America Securities, LLC , 685 F.Supp.2d 456 (S.D.N.Y. 2010)
(examples of gross negligence: failure to issue a hold, to identify all key players
and to ensure that electronic and paper records are preserved, to cease the
deletion of emails or to preserve records of former employees, to preserve
backup tapes when they are the sole source of information)
© 2011 Office of Massachusetts Attorney General Martha Coakley
DUTY TO PRESERVE AND
PRODUCE
Disability Law Center v. Department of Correction
© 2011 Office of Massachusetts Attorney General Martha Coakley
TRIAL DIVISION LITIGATION HOLD
PROTOCOL – WHAT YOU CAN
EXPECT TO BE ASKED
•Have you sent out a litigation hold letter?
•Who are the key custodians, and what is the
likely universe of documents?
•What steps are being taken to preserve relevant
evidence?
•What is your retention policy for both e-mail and
paper documents? Have you altered that policy
in this case?
©2011 Office of Massachusetts Attorney General Martha Coakley
ESTABLISHING AN ISA
AND FINDING A VENDOR
•Agencies must fund e-discovery for their cases
•The AAG will work with you to set up an ISA for each case
•We know that for every case, there will be some costs
associated with the process, such as scanning and searching
•Paper documents must be scanned so they can be
reviewed and produced consistently with electronic
documents
•We recommend doing as much as possible with a vendor.
Anticipate having to defend your process to a court in the event
of a motion to compel.
© 2011 Office of Massachusetts Attorney General Martha Coakley
IDENTIFYING THE DATA
• Custodians – who has the data?
• Anyone likely to have relevant information
• Better to be over-inclusive than underinclusive
• Remember to include administrative personnel
• Subject matter
• Think expansively
• Applicable date range
© 2011 Office of Massachusetts Attorney General Martha Coakley
COLLECTING THE DATA
• Collecting – done either by in-house IT or
vendor, depending on case and complexity
• Mirroring hard drives, capturing email boxes,
restoring email archives
• Vendor runs search of files using custodians
and search terms with applicable date ranges
• Goal: Searches performed by disinterested
party who can, if needed, testify as to method
and chain of custody
© 2011 Office of Massachusetts Attorney General Martha Coakley
REVIEWING THE DATA
• It is essential to use an automated litigation support
system (ALS) to search, manage, and control the ESI in
your case.
• El-Amin v. George Washington University, 2008 WL
4667721 (D.D.C. Oct. 22, 2008)
Court ordered the parties to create a system whereby all
existing documents are hyper-linked to fields in a
database that will permit the instantaneous retrieval from
within the database of the information offered by plaintiffs
in support of any factual proposition.
© 2011 Office of Massachusetts Attorney General Martha Coakley
PRODUCING THE DATA
•Data must be produced in native format (or the format
negotiated in the meet and confer) wherever possible.
•For example, e-mails must be produced electronically,
not printed.
•Redactions are made electronically, with un-redacted
version preserved
•Privilege log generated by the software
•Producing evidence this way preserves metadata
© 2011 Office of Massachusetts Attorney General Martha Coakley
TRAPS FOR THE
UNWARY
• Searches performed inconsistently, either in the
terms used or the method employed
• Improper selection of search terms, custodians, or
date ranges
• Inability to maintain e-mail attachments and
associations
• Not being able to articulate and justify how the
collection, searching and production was
performed.
© 2011 Office of Massachusetts Attorney General Martha Coakley
COSTS
Cost of preserving, collecting and producing
electronic information
• To the extent that you do not have in-house
IT capacity, a private vendor must be used
• Individual non-IT employees should not be
preserving and collecting e-discovery.
© 2011 Office of Massachusetts Attorney General Martha Coakley
COSTS
• CLAWBACK AND QUICK-PEEK AGREEMENTS – save money
and time on privilege review
• Clawback – Parties agree that inadvertent production of
privileged materials will not automatically constitute a waiver
of privilege.
• Quick-peek – The requesting party is permitted to see his
opponent’s entire data set before production and specifies
relevant information. The producing party then extracts
privileged information from the smaller set.
© 2011 Office of Massachusetts Attorney General Martha Coakley
E-DISCOVERY
A FINAL WORD . . .
© 2011 Office of Massachusetts Attorney General Martha Coakley