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Transcript of Confidential Attorney Work Product Houston 713.623.0887 ● Dallas 214.237.4300 E-Discovery: The...
Confidential Attorney Work Product
Houston 7136230887 Dallas 2142374300 wwwbmpllpcom
E-DiscoveryThe New Demands of a Wireless World
Lisa Ketai James Smith Lynette Fons
Beirne Maynard amp Parsons LLP
What Kinds of Electronic Data Are We Talking About
bull Includes all relevant electronic data
ndash E-mail messages
ndash Word-processing files
ndash Databases
ndash Internet history files
ndash Calendars and schedules
CALENDAR SOFTWARE
This is a Hot Topic
E-Discovery is a hot topic
Wersquore Talking About Serious E-Mail Volume
Worldwide e-mail traffic per day totals about 141 billion messages
- Source The Radicati Group Inc
E-Mail v Paper Mail
bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail
bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter
bull E-mails are not treated with the same sanctity as paper correspondence
bull 1048729E-mails potentially last forever
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
What Kinds of Electronic Data Are We Talking About
bull Includes all relevant electronic data
ndash E-mail messages
ndash Word-processing files
ndash Databases
ndash Internet history files
ndash Calendars and schedules
CALENDAR SOFTWARE
This is a Hot Topic
E-Discovery is a hot topic
Wersquore Talking About Serious E-Mail Volume
Worldwide e-mail traffic per day totals about 141 billion messages
- Source The Radicati Group Inc
E-Mail v Paper Mail
bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail
bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter
bull E-mails are not treated with the same sanctity as paper correspondence
bull 1048729E-mails potentially last forever
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
This is a Hot Topic
E-Discovery is a hot topic
Wersquore Talking About Serious E-Mail Volume
Worldwide e-mail traffic per day totals about 141 billion messages
- Source The Radicati Group Inc
E-Mail v Paper Mail
bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail
bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter
bull E-mails are not treated with the same sanctity as paper correspondence
bull 1048729E-mails potentially last forever
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Wersquore Talking About Serious E-Mail Volume
Worldwide e-mail traffic per day totals about 141 billion messages
- Source The Radicati Group Inc
E-Mail v Paper Mail
bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail
bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter
bull E-mails are not treated with the same sanctity as paper correspondence
bull 1048729E-mails potentially last forever
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
E-Mail v Paper Mail
bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail
bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter
bull E-mails are not treated with the same sanctity as paper correspondence
bull 1048729E-mails potentially last forever
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
E-Mail as Friend or Foe
bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private
propertybull E-mail can be very damaging but it also protect you in
future litigation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Merck Vioxx
Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk
After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx
Nevertheless he wrote to the Vioxx project team
ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo
Houston Chronicle 12605
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Merck Vioxx
In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx
In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change
His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen
1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Zubulake Seminal Case
In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses
ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull 1999 93 of information was in digital format ndash only 7 paper
bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records
Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents
Institute a Litigation Hold
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
Understand the business functions involved and appreciate the supporting software
bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files
Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive
Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers
Determine the Scope and Sources of Documents
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Discovering Deleted Data
bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media
bull Cost can be very high
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
Focus on storage devices storage media and the storage locations of the electronic information
bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods
Determine the Scope and Sources of Documents
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull Must be reasonable
bull Must be routinely observed
Institute Appropriate Retention Policies
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull Incorporate custodian interviews or questionnaires
bull Keep a description of the guidelines and procedures followed in collecting the documents
bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data
bull Seek ways to avoid disruption of normal business
bull Keep a record of collection efforts
Develop a Sound Collection Protocol
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced
bull Objections including those based upon burden and expense are available
The Basic Rules of Discovery Apply
Scope
Relevance
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize
bull Caution Electronic data may be altered when accessed
Review
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Do Not Attempt Document Collection Yourself
bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics
bull Spoliation is a real danger
bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Do Not Attempt Document Collection Yourself
bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg
old e-mail systemsbull Electronic discovery litigation support
ndash Data collection and conversionndash Data hostingndash Filtering and searching data
bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters
Three Main Categories of Service Offerings
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Response to Anticipated Litigation Discovery Request
bull Discuss options with a computer expertbull Consider how your opponent will process the data after it
has been accessedbull Negotiate the scope of production
Production
Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
What Kind of Data Can Be Found
Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Potential Criminal Liability
In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Not Just a Defense Issue
Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
In Case You Thought They Were Kidding
Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles
Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award
UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict
Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Possible Sanctions for E-Discovery Errors
bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent
bull Precluding a party from introducing any evidence or argument pertaining to a specific topic
bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse
bull Striking a partyrsquos pleadings and entering judgment against it
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
When Litigation is Even Suspected
bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery
bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
E-Discovery Information
For a searchable database of e-discovery cases go to
httpwwwediscoverylawcom
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Wersquore Talking About Serious E-Mail Volume
ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo
- Wall Street Journal 122905
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Back to the Fundamentals
bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt
bull Virtually every judge with significant exposure to electronic discovery issues knows this
bull Individual judges with no technical training have tremendous power and discretion in this area
bull It is imperative to be open and to appear open in dealing with electronic discovery issues
bull The appearance of not playing fair in this context can have serious adverse consequences
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation
Acknowledgement
We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation