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August 22, 2012 Presented by:
Transcript of New York County Lawyers Association Home...Case%Law%Update%–Important%Recent%Opinions%...
August 22, 2012 Presented by:
Our Agenda • eDiscovery in General • Meet and Confer – What needs to be addressed and established. Preliminary Conference and ProtecKve Orders
• CollecKons – The Duty to Preserve and the LiKgaKon Hold • EDRM – Processing, Analysis and Review – What to do with the Data once you have it
• TAR: Review PrioriKzaKon, Staffing StraKficaKon, Privilege QC, Keyword ValidaKon and Defensibility
• Best PracKces and Cost CuYng Throughout the Process
First – A Note About This Session
§ Why is eDiscovery so important?
§ EVERY ma[er involves some type of electronic data.
§ Fundamental changes in how people manage informaKon.
§ ESI can be your best friend or worst enemy.
§ Current developments in the pracKce of law give those with eDiscovery knowledge an advantage.
The EDRM: A Fluid Model
The 2006 eDiscovery Amendments
§ The definiKon of what is discoverable: FRCP 26(a)(1), 33, and 34; § Dealing with ESI early: FRCP 16(b), 26(a), 26(f) and Form 35; § DesignaKng the format of ESI: FRCP 34(b) and FRCP 45; § Discovery from sources that are not reasonably accessible: FRCP 26(b)
(2); § Post-‐producKon claims of privilege: FRCP 26(b)(5); § Interrogatories and producKon requests: FRCP 33, 34(a), and (b). § “Safe Harbor” for inadvertent spoliaKon: FRCP 37(e); § Subpoenas: FRCP 45.
§ ALSO SEE: Federal Rule of Evidence 502(b) LimitaKons of AC/WP Privilege Waiver
Strategies for Assessing an eDiscovery Project
§ The case itself: § What are the underlying facts? § What is the case worth? § What is the triggering event for preservaKon? § Date ranges? § Key words? § Key custodians?
§ ProporKonality is a KEY concept in eDiscovery.
Be careful when applying propor2onality principles at the preserva2on stage!
Strategies for Assessing an eDiscovery Project
§ Resources § IdenKfy your client’s internal resources.
§ What can they do? § What, if anything, has already been done?
§ Know what you can handle in-‐house. § What can you do? What do you WANT to do? § Don’t be afraid to ask for help.
§ Think about scalability.
Having to switch vendors or change gears mid-‐case can cause significant delays, unnecessary costs, and threats to defensibility.
Legal Hold NoKce Content § Content differs based on case facts and circumstances
§ General Guidelines: -‐ Should be concise and wri[en in plain English -‐ Describe subject ma[er of case -‐ Date ranges of ESI to be preserved -‐ Statement that ALL ESI should be preserved (irrespecKve of locaKon or storage medium)
-‐ InstrucKons on how to preserve ESI -‐ Provide contact info. for quesKons -‐ Counsel should monitor compliance regularly
-‐ Legal hold noKces may be subject to discovery and should be dramed accordingly.
Preliminary Conference § Coopera'on is key § There is no benefit to “hiding the ball” when it comes to the meet and confer.
§ Rule 30(b)(6) DeposiKons are frequently permi[ed in federal court and increasingly in state courts. § Can be avoided if relevant informaKon is provided upfront (eDiscovery compliance procedures, IT environment, retenKon policies, etc)
§ Avoid “Discovery about Discovery”
The Meet and Confer – What to consider in advance and establish between the ParKes
§ PreservaKon, IdenKficaKon, Scope and form § Claw back Agreement § Order of ProtecKon for highly confidenKal/proprietary informaKon
§ Relevant IT personnel should be prepared for potenKal witness tesKmony regarding computer systems and procedures regarding ESI
The Ethics of eDiscovery § It is important to understand the ethical obligaKons of a[orneys since
omen Kmes paralegals are running the show: § MRPC 1.1 – A lawyer shall provide competent representaKon to a client § The importance of issues related to search and retrieval. § United States v. O’Keefe (2008). § William A. Gross ConstrucKon Assoc. v. American Manufactures Mutual
Insurance Co. (2009). § MRPC 1.6 – ConfidenKality of InformaKon § MRPC 3.4 – Fairness to Opposing Party and Counsel § MRPC 4.4 – Respect for Rights of Third Persons § Duty to Cooperate under FRCP 26(f) and state equivalents.
Zubulake v. UBS Warburg § Scope of a party's duty to preserve electronic evidence
during the course of liKgaKon; § Duty to monitor their clients' compliance with electronic
data preservaKon and producKon; § Data sampling; § The ability for the disclosing party to shim the costs to
restore lost data § SancKons for the spoliaKon (or destrucKon) of electronic
evidence. § Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003). § Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). § Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004).
NaKonal Day Laborer Judge Scheindlin (ciKng mulKple cases), “In their affidavits, agencies must
§ IdenKfy the searched files and describe at least generally the structure of the agency’s file system’ which renders any further search unlikely to disclose addiKonal relevant informaKon.
§ They must establish that they searched all custodians who were reasonably likely to possess responsive documents, and
§ They must set forth the search terms and the type of search performed.”
Chin v. The Port Authority “Get Out of Jail Free Card?”
• Background: Title VII case (11 Asian American Police Officers passed over for promoKon and sued Port Authority). -‐Port Authority had no document retenKon policy -‐Documents used to make promoKon decisions destroyed, but
were cumulaKve evidence. -‐PlainKffs moved for spoliaKon sancKons/adverse inferences
• District Court: denied moKon – document destrucKon negligent, but not grossly negligent.
• 2nd Circuit: (a) the failure to issue a wri[en liKgaKon hold does not equal per se gross negligence and (b) District Court did not abuse its discreKon by denying the moKon for sancKons.
• Bo[om Line: case provides support for lit. hold failure where addiKonal evidence preserved to support/refute claims.
New Jersey SpoliaKon Cases § Manorcare Health v. Osmose Wood -‐ SpoliaKon of evidence occurs when
evidence relevant to the acKon is destroyed, causing interference with the acKon’s proper administraKon and disposiKon.
§ Rosenblit v. Zimmerman – (Supreme Court of NJ) spoliaKon of evidence
can result in a separate tort acKon for fraudulent concealment, discovery sancKons, or an adverse trial inference against spoliator. à NO SEPARATE TORT ACTION FOR INTENTIONAL SPOLIATION
§ Swick v. N.Y. Times -‐ adverse inference may be given in underlying liKgaKon presuming the destroyed material was adverse to spoliator.
Case Law Update – Important Recent Opinions PRESERVATION/SPOLIATION § Voom Holdings LLC v. EchoStar Satellite LLC, 2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012).
DISCOVERABLE INFORMATION § Thompson v. Autoliv ASP, Inc., No. 2:09-‐cv-‐01375-‐PMP-‐VCF, 2012 WL 2342928 (D. Nev. June 20, 2012).
GOOD FAITH STANDARD § Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May
18, 2012).
REASONABLE EFFORTS § D’Onofrio v. Borough of Seaside Park, No. 09-‐6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012).
PROPORTIONALITY
§ Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011).
PROCESS FOR IDENTIFYING RESPONSIVE DOCUMENTS § Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012).
The Legal Professional as Explorer
IdenKficaKon: A Myriad of Sources
• Email servers and aAached storage • SharePoint servers and aAached storage • File/Print servers and aAached storage • Share drives • Server log files • Server RAM • Backup tapes or backup targets • External storage facili2es • Failover sites • Hosted archive sites • Legacy systems • Internet Archives • Social Media (Facebook, MySpace,
TwiAer, LinkedIn, etc.) • Cache files and cookies
• Chat room logs • Employee worksta2ons • Employee external hard disks • Employee CDs/DVDs/thumb drives • Cloud data • Voice Mail • Digital camera memory • iPods/PDA • Cell phones • Corporate web sites/blogs/podcasts • Data in the possession of a non-‐party • Employee personal computers • Employee external email accounts • Registry files • Data located interna2onally • Etc. Etc. Etc.
ALWAYS CONSIDER METADATA!
New Jersey Considering Formal eDiscovery Rules for Criminal Cases
§ In April 2009, Chief JusKce Rabner of the Supreme Court of New Jersey appointed the Supreme Court Special Commi[ee on Discovery in Criminal and Quasi-‐Criminal Ma[ers
§ On February 12, 2012, the Commi[ee issued report on eDiscovery issues in criminal cases. The topics included:
§ Importance of meet and confer process early on in liKgaKon to agree on -‐ preservaKon of ESI -‐ producKon scope,Kming and format, considering review tools available to defense counsel -‐ who bears cost of ESI producKon
§ ApplicaKon of tradiKonal 4th Amendment search-‐and-‐seizure doctrine to ESI (i.e., plain view, fruit of the poisoness tree, search warrant specificity and exigent circumstances)
-‐ e.g., is search warrant required to examine contents of a cell phone? -‐ e.g., do exigent circumstances exist when cell phone can be remotely wiped clean?
Commi[ee RecommendaKons Cont’d
• Forensic retrieval of deleted informaKon • E-‐mails, text messages and social media (e.g., Twi[er, Facebook) as important potenKal sources of evidence in criminal cases
• Differences between ESI and hard copy data. • ESI contains useful informaKon such as metadata (e.g., date(s) documents created/modified/sent, author, etc.) • ESI more fragile than hard copy because metadata can be altered during the collecKon process
• FacilitaKon of space and tools at jails for defense counsel to review ESI with incarcerated clients
CollecKons Looking at the Big Picture
• What might be some sources of PotenKally Relevant Data?
• Focus on potenKally relevant data NOT the needle in the haystack.
• Minimizing risk, cost, and impact to “business as usual.”
• Forensic specialists are not required but recommended.
• What type of collecKon will you perform?
• Keep in mind that preservaKon efforts may be even broader than
collecKon. NARROWING SCOPE IS KEY
CollecKon of Remote and New Media – ConsideraKons
• Get it ASAP – this type of data is “easily lost”
• Chain of Custody/ValidaKon
• Make sure to ask about portable devices, digital cameras, websites, etc.
• Voicemail is not something you can recover from a phone.
• Remember to account for a custodian’s web based email accounts.
§ Make sure you: (i) collect the enKre universe of documents; (ii) collect from all relevant custodians and (iii) transfer the liKgaKon hold le[er into the actual physical retenKon of data.
Chain of Custody
§ A chain of custody is the process of validaKng how a piece of evidence has been gathered, tracked, and protected on its way to a court of law.
§ An unbroken chain of custody shows:
• Where data has traveled • Who touched it • What was done to it
Information Management
Identification
Preservation
Collection
Processing
Review
Analysis
Production Presentation
15% of Cost Riskiest Area Costliest Area
25% of Cost
60% of Cost
Planning Execution
Electronic Discovery Reference Model / © 2009 / edrm.net
Best PracKces & Cost CuYng
People + Process + Technology = significantly increased review speed
ANALYTICS Technology Assisted Review
(TAR)
§ AnalyKcs are based on conceptual search tools. These tools derive meaning from documents through a rigorous mathemaKcal analysis of the relaKonship between terms across documents.
§ The most common analyKcs technology is latent semanKc indexing (LSI) which analyzes the co-‐occurrence of keyword terms in the document collecKon uKlizing:
§ POLYSEMY refers to a single keyword having mulKple meanings § SYNONYMY refers to mulKple words having the same meaning
How do AnalyKcs Work?
§ Problems with standard search queries * Having a plurality of meaning (polysemy) or terms (synonymy) can create mismatches in
vocabulary and results in the return of irrelevant informaKon and the omission of relevant data.
§ LSI overcomes this constraint by establishing the semanKc and conceptual relaKonships between search terms
§ The word, “match” and its various meanings, can exemplify the concept of polysemy.
Take the following potenKal meanings of the word: * The man used a match to light his cigare[e * The tennis player won the match handily. * The forensic evidence shows a geneKc match.
In other words, mulKple semanKc values that are a[ached to the same word (signifier) result in a polysemy.
§ Synonymy occurs when different words share the same semanKc meaning. I.e., they are synonyms. • For example, “glad,” “cheerful” and “jolly” all basically refer to a state of happiness, are
semanKcally related and are, more or less, substanKvely interchangeable.
Graphic Example
(Tree) Limb Tree
LSI recognizes that the two terms are seman2cally or substan2vely related
=
Tree (Human) Limb
By analyzing co-‐occurrence of terms in documents, LSI can determine that this limb has nothing to do with our search term, “tree.”
Injury Tree
Although the terms are not seman2cally or substan2vely related, LSI can determine from its document analysis that these terms are related, and will search for instances where they occur together, as the injury in ques2on has been caused by a tree.
How Does TAR Work?
§ TAR applies the knowledge and decisions of human reviewers to train somware to extrapolate those decisions to conceptually similar documents. § TAR can dramaKcally reduce the cost and Kme associated with review of documents
§ Technology and process used in TAR has now been judicially accepted (e.g., Da Silva Moore and Global Aerospace)
§ Subject MaTer Experts § Knowledgeable experts who review and code the documents used to “train” the
somware.
§ Analy'cs Engine § Somware that analyzes a document universe and applies the Subject Ma[er
Experts’ knowledge to the un-‐reviewed document universe. § Overturns
§ Overturns are documents incorrectly coded by the somware and corrected by a Subject Ma[er Expert during a training round.
§ Sta's'cal Valida'on § StaKsKcal sampling is used to demonstrate a defensible methodology and
workflow was followed.
Components of Technology Assisted Review
Benefits of TAR Time and Resources:
Complete large-‐scale reviews quickly with minimal human resources and Review adversary’s producKons with minimal human resources
QC: Verify for responsiveness and privilege accuracy
Assurance: Validate key word searches
CooperaKon: Training adversary’s system to produce responsive documents (reduces discovery disputes)
Using AnalyKcs for QC § Consistency
§ Capture similar documents that were inconsistently coded for responsiveness § Capture similar documents that were inconsistently coded for issues § IdenKfy responsive documents that are similar to documents previously believed to
be nonresponsive, thereby changing responsiveness of previously coded docs
§ Privilege IdenKficaKon § IdenKfy previously missed privileged documents using seed documents § IdenKfy privileged documents using documents idenKfied as privileged by program § IdenKfy documents for privilege based on content of email rather than a[orney
names alone
§ Issue SpoYng § IdenKfy documents by most relevant issue § Grouping documents by shared mulKple issues
Thank You!
eDiscovery:
Where Technology Meets the Law
Your Speakers: Natalie S. Feher and Dino E. Medina Presented by:
