Paralegal’s Guide to Evidence · In re Pradaxa (Dabigatran Etexilate) Products Liability...

Paralegal’s Guide to Evidence:

Gathering, Protecting and Spoliation

Presented By:Matthew C. Christoff and Sarah M. Knight

Seyfarth Shaw LLP

This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only.

mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 393532

Paralegal’s Guide to Evidence:

Gathering, Protecting and Spoliation

© 2014 Lorman Education Services. All Rights Reserved.

All Rights Reserved. Lorman seminars are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Your attendance at a Lorman seminar constitutes your agreement not to record or transcribe all or any part of it.

This publication is designed to provide general information on the topic presented. It is sold with the understanding that the publisher is not engaged in rendering any legal or professional services. The opinions or viewpoints expressed by faculty members do not necessarily reflect those of Lorman Education Services. These

materials were prepared by the faculty who are solely responsible for the correctness and appropriateness of the content. Although this manual is prepared by professionals, the content and information provided should not be used as a substitute for professional services, and such content and information does not

constitute legal or other professional advice. If legal or other professional advice is required, the services of a professional should be sought. Lorman Education Services is in no way responsible or liable for any advice or information provided by the faculty.

This disclosure may be required by the Circular 230 regulations of the U.S. Treasury and the Internal Revenue Service. We inform you that any federal tax advice contained in this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax

penalties imposed by the federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.

mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 393532

Prepared By:Matthew C. Christoff

Sarah M. KnightSeyfarth Shaw LLP

“The ability to learn faster than your competitors may be the only sustainable competitive advantage.”

— Arie de Geus

Are you looking for additional ways to receive training and continuing education?

L o r m a n E d u c at i o n S E r v i c E S :

A Company With a Reputation for SucceSS

S E M I N A R S :Since 1987, Lorman has sponsored thousands of continuing education seminars across the U.S. and Canada. Attend a full-day program to hear the latest in industry updates and regulation changes that will keep your business current and in compliance. Learn from local experts and network with other professionals in your industry. For a complete listing of upcoming seminars in your area, visit www.lorman.com/seminars.

M E M B E R S H I P S :Lorman has created a collection of industry-specific websites dedicated to the enhancement of the business professionals we serve. These membership websites, collectively called the Lorman Business Education Network (LBEN), benefit professionals by providing the most up-to-date information pertinent to their careers. Bronze Membership includes access to expert advice through e-newsletters, articles, white papers, forms, tools and affiliate discounts. In addition to these free benefits, several of the LBEN sites have Silver and Gold Memberships available that allow members to receive free and discounted training. Visit www.lorman.com/membership for more information.

I N D U S T R Y A R T I C L E S :Each of Lorman’s industry-specific websites publishes articles from leading experts who report on law changes, updates, news and industry trends. Create your Bronze Membership Account today to access all of these great resources (see the Memberships section)! If you would like to become an author visit www.lorman.com/author for more information.

PA R T N E R S H I P S :Do you belong to a state or local bar, society or association? Become a Lorman partner and your organization could earn commission and discounted training and products. Visit www.lorman.com/affiliateprogram for more information.

C E R T I F I C AT E S :Earn your Human Resource Professional Development™ certificate, Construction Compliance™ certificate, Certificate of Banking Compliance™ or Certificate of Accounting Compliance™ by attending a Lorman-spon-sored seminar, OnDemand webinar, or live webinar. Our professional certificates were developed in conjunction with leading experts in their respective industries. For complete information on these certificates, please visit www.lorman.com/certification/hrpd, www.lorman.com/certification/cc, www.lorman.com/certification/cbc, or www.lorman.com/certification/

O N - D E M A N D W E B I N A R :Looking for a convenient way to fulfill all of your continuing education needs? On-demand webinars allow you to view 90-minute programs from the comfort and convenience of your home or office. All you need is an Internet connection. Accessible 24 hours a day, 7 days a week – you can view, pause, rewind and replay at your convenience. Visit the on-demand library at www.lorman.com/ondemand.

B O O K S T O R E :Can’t find the seminar you are looking for? Search Lorman’s extensive resource library containing thousands of audio recordings, books and reference manuals. Visit www.lorman.com/bookstore.

Paralegal's Guide to Evidence: Gathering, Protecting, and Spoliation

Sarah Knight and Matt ChristoffSeyfarth Shaw LLP

Lorman Education Services

1

2 | © 2014 Seyfarth Shaw LLP

Why are we giving this talk?

Sarah M. Knight• eDiscovery attorney in the Chicago office of Seyfarth Shaw LLP• Practice focuses on issues associated with electronic discovery, litigation preparedness, document retention management policies, and international and domestic data privacy issues• Experience in large class actions and complex litigation• EnCase Certified Examiner•Can be contacted at [email protected]

Matthew C. Christoff• eDiscovery attorney in the Chicago office of Seyfarth Shaw LLP• Practice focuses on issues associated with electronic discovery, document management, and evolving technological standards• Varied technical background, including computer support, network administration, computer programming, and intellectual property• EnCase Certified Examiner•Can be contacted at [email protected]


Some Items to Discuss…

•Understanding the Duty to Preserve ESI

•Where Can You Find Electronically Stored Information?

•Effectively Preserving ESI►Preservation and Collection Strategies

►Choosing a Vendor

•Evidence Handling and Storage►Understanding Metadata

•Common Pitfalls and Potential Risks of Failing to Preserve ESI

►Recent Case Law

3


Scope of the Duty to Preserve


The Duty to Preserve

4


Scope and Timing

• All employees who had any involvement with the issues raised in the litigation, but especially the “key players”Who

• The duty to preserve arises when a party reasonably anticipates litigation, which is no later than receipt of the complaint, but is often earlier.

When• All documents potentially relevant to the

claims and defenses in the action - it is typically best to preserve broadlyWhat

• All locations where potentially relevant ESI may be located (e.g., email, hard drives, servers, etc.), even if in your control rather than possession

Where


Who?

• “Key players”►Phrase used by Judge Scheindlin in Zubulake v. UBS Warburg

LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Zubulake IV”) to refer to custodians that must be included on initial disclosures under Fed. R. Civ. P. 26(a)(1)(A)(i): “each individual likely to have discoverable information … that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”

►In Pension Committee, Judge Scheindlin distinguished between “all those employees who had any involvement with the issues raised in the litigation” and “just the key players”

►But see Pippins v. KPMG, 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011) (including among key players all putative class members in nationwide hybrid class-collective action)

5


What?

•Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-218 (S.D.N.Y. 2003)

►a party is only obligated to preserve, “unique, relevant evidence that might be useful to an adversary.” ►However, “[m]ust a corporation preserve every shred of paper, every e-mail, every backup tape? The answer is a clear 'no.' Such a rule would cripple large corporations, like UBS, that are almost always in litigation.”

•Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., 685 F. Supp. 2d 456, 471 (S.D.N.Y. 2010)

►“It is well established that the duty to preserve evidence arises when a party reasonably anticipates litigation.” ►“A plaintiff's duty is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.”


When?

•“It is well established that the duty to preserve evidence arises when a party reasonably anticipates litigation.”

►Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)

•“[T]he duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent.”

►In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

•Litigation hold triggers may include:►Receipt of preservation demand letter►Receipt of draft complaint►Filing of lawsuit►Notice of government investigation►Knowledge of other, similar litigation?►Seeking advice of counsel►Sending a cease and desist letter

6


Where?

• E-mail (including attachments)

• Instant Messaging

• Word processing documents

• Spreadsheets

• Databases

• Presentation documents

• Graphics

• Audio, video recordings

• Voicemail

• Text messages

• Social media

• Cloud Storage and Applications

• Backup Media!!!

Work & Personal Computers

Networked Storage Locations / Corporate Servers

External Storage –USB “thumb” drives

Facebook

Electronically stored information or ESI = any type of electronic documents or data

Where: Social Media

•Case law supports discovery of social media where content relates to the claims or defenses.

•Objections to discovery based on privacy concerns have largely been rejected.

►Offenback v. L.M. Bowman, Inc., No. 1:10–CV–1789, 2011 WL 2491371, (M.D. Pa. June 22, 2011).►Romano v. Steelcase, 907 N.Y.S.2d 650 (2010).►EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010).


7

The Cloud…• Cloud computing is a general term for

anything that involves delivering services over the Internet.

• The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities.

• Examples:

• Google Apps

• Evernote, Dropbox, Box.net, Amazon S3, iCloud

• Microsoft


Where?

•Don’t forget…►Information maintained by third parties

• FRCP 34(a)(1): A party may serve on any other party a request within the scope of Rule 26(b)…in the responding party's possession, custody, or control…

• A party may be in “control” of information not in its possession.

►Paper • It’s still out there and needs

to be preserved.

8


Summary of the Duty to Preserve


Standard: Preserve Potentially Relevant Evidence

•Summary►Pre-Duty Obligations

• As long as a party is not under an obligation to preserve evidence due to a statute or existing litigation hold, they are able to destroy documents at will subject to document retention policy.

►When is Duty Triggered• It’s a matter of opinion up until the Complaint is filed.

• A plaintiff’s duty to preserve evidence is frequently triggered far before the defendant’s.

►Post-Duty Obligations• Take “reasonable” preservation steps to preserve Potentially

Relevant Information.

9


Preservation Planning


Preservation Strategies: You Need a Plan

• Preservation Through Notification

• Litigation Hold Notice

• Suspend Document Retention Policies

• Custodian Self-Identification► Potential Dangers

• Preservation Through Collection

• Forensic Acquisition of ESI► Email

► Computer workstation and server images

• Hybrid Approach

10


Preservation through Notification

•Key Components►Litigation Hold Notice►Self-Identification►ESI stays with, and is often collected by, the custodian►Consider suspension of routine/automatic disposal practices (particularly for key players)


Preservation through Notification: Litigation Hold Process

•A “litigation hold” is a communication to appropriate persons to take reasonable steps to preserve information that may be relevant to an existing or pending lawsuit or investigation. It’s the suspension of deletion habits and practices of relevant information.

►See the Sedona Principles, located at http://www.thesedonaconference.org

•Determine proper recipients of litigation holds (consider multiple versions of hold notice where appropriate) •Communicate with pertinent parties in IT, Legal, and HR as appropriate•Determine if any third parties need to be notified•Monitor litigation hold compliance

►Follow-up with recipients and revisit hold list periodically►Document hold acknowledgements

11

Self-IdentificationWhat is “Self-Identification?”

Theory is that “Lay People” Can’t• Understand facts relevant to

legal theories such as notice or intent;

• Be counted on to provide “incriminating” information;

• Be able to do appropriate electronic searches.

See Northington v. H&M Intl., 2011 WL 663055 (N.D. Ill. Jan. 15, 2011)


Dangers of Self-Identification

•Altering certain metadata, such as time stamps

•Custodian self-interest in selecting files

•Lack of technical expertise

•Green v. Blitz U.S.A., Inc., 2011 WL 806011 (E.D. Tex. Mar. 1, 2011)

►Defendant placed individual who was admittedly “as computer . . . illiterate as they get” in charge of collection and discovery efforts

►Failures in collection/discovery led to civil contempt sanctions of $250,000 (among other sanctions)

12


Using Self-Identification in Your Preservation Plan

•Custodian Surveys►Help custodians identify and remember potential sources of information

►Identifies potential sources requiring additional preservation steps

•Forensically Sound Collection►Preservation of Metadata

•Instruction and Involvement►Web meetings and step-by-step instructions for preserving emails, loose files, etc.

►Legal and IT contacts for questions

•Potential Searching on Your Own

•Alternative Means of Preservation for Key Players


Collection as a Means of Preservation

•Broad-Based Collection of ESI►Unlike self-identification, ESI is collected without regard to relevance to the matter, other than the fact that it’s maintained by a particular individual.

►Inherent “over-collection”

•Some Limitations Are Possible►File type filters

►Date Ranges

►Restrict to certain locations, paths

13


Choosing Your Preservation Strategy

•Preservation through Notification

►Advantages:

• Reduces costs

• Can be performed quickly

• Limits over-collection of non-relevant information in collection

►Disadvantages• Skepticism by some parties

and courts

• Mistakes in self-identification and self-collection

• Potential for loss of ESI through simple inadvertence or “bad actor” custodians

•Preservation through Collection

►Advantages• Ensure forensically sound

ESI collection

• Avoid potential skepticism of self-identification process

• Efficiency: Some ESI will eventually require collection.

►Disadvantages• More costly

• Logistics of collecting from some custodians

• Over-collection


Choosing Your Preservation Strategy

•Determining which preservation method to use – preservation through notification, broad-based collection, or a combination of the two – will depend on the facts and circumstances of the case and involves an evaluation of several factors, including:

►the general risk that data may be spoliated (intentionally or accidentally),►the nature of the custodians’ relationships to the allegations, ►the sophistication of the custodian and/or their familiarity with the issues,►the volume and importance of the ESI in the custodian’s possession, ►the number of custodians involved, ►the aggressiveness and sophistication of the opposition with respect to eDiscovery,►the kinds of ESI implicated, and►costs and proportionality to the “value” of the case.

14


Evidence Handling and Storage

A Minute on Metadata

Commonly referred to as “data about data.”

“Data typically stored electronically that describes characteristics of ESI, found in different places in different forms. Can be supplied by applications, users or the file system. Metadata can describe how, when and by whom ESI was collected, created, accessed, modified and how it is formatted.”

The Sedona Conference Glossary: E-Discovery and Digital Information Management

15


Metadata

•Can be altered intentionally or inadvertently

►Opening files

►Copying files

►Metadata “scrubbers”

•Self-collection: Instruct custodians on proper collection method to preserve metadata

•Will not be critical in every case, but you do not want to be without it when you need it.

Electronic Evidence Handling

•Potential pitfalls in handling electronic evidence:►Access or allow the client to access potential sources of original electronic evidence

• Do not even turn the device on. Leave it! If it’s on, pull the plug, pull the battery, or call in an expert.

►Ask for a “copy” of the original device without specifying the criteria for the copy.

►Allow IT to redeploy a machine that is potentially at issue• If they really must, have them pull the hard drive and preserve at

least that, documenting the original computer information.

►Plug in any device a client sends you• Curiosity can be a case-killer

• Antivirus and indexing software can change access dates, etc.


16

Electronic Evidence Handling (cont.)


•Instead, be sure to DO the following:►Create a clear chain of custody that starts at the custodian and stays current

• This form should stay WITH the ORIGINAL EVIDENCE at all times, and be updated whenever it changes hands or location

►Contact internal or external resources to assist in proper handling of electronic evidence

• Specialized training, even with minimal efforts, can save critical data

• Avoids spoliation arguments later on

►Inform the client of the necessity to carefully handle evidence

►Suggest client utilize internal procedures that are clearly documented or third party resources to ensure preservation

Digital Forensic Toolkit


•Forensic Collection and Analysis Software►EnCase (Guidance Software)

►FTK (Access Data)

•Chain of Custody Forms

•Camera

•Write-Blocking Hardware / Software

•Imaging device with various connectors

•Media to store resulting forensic images

17


Developing a Collection Plan


ESI Collection

•Physical Collection►A “physical” collection will create an identical copy of the device that you are collecting, including deleted items, file fragments, and empty space.

►Takes the most time and storage space, but will allow you to “go back to the well” in situations where you need to perform additional data exports or analysis.

►Advised when there is the possibility that the owner of the device may have attempted to delete or wipe potentially relevant information, or for some key custodians.

18

ESI Collection

•Logical Collection►A “logical” collection will create a copy of all “active” or “live”data on a device, but will not capture certain deleted items, file fragments, or empty space.

►More common than physical collections, as they are typically used in the majority of cases when no evidence of foul play exists.

►Most forensic collection devices allow the forensic examiner to configure exactly what type of information is collected:

• Specific data locations on a device

• Include or exclude file types

• Limit by date range



ESI Collection: Vendors

•Choosing a collection vendor►Obtain multiple quotes to compare price

►Look for experience with your IT systems

►If you are unfamiliar with a potential vendor, ask around

►Don’t choose on cost alone – choosing the wrong vendor will cost you in the end

►Consider processing options

•Evaluating quotes►Watch out for line items that add up: licenses, hourly fees, travel, media costs

19


Mountain of Paper

•Paper Handling ►Manual Physical Review

• Space / Organization / Time

►Scanning and Coding of Paper Documents

• Coding paper into categories for ease of review

• OCR makes it searchable

• Saves time (only review that which are search term hits, for example)

• Saves money (less attorney review costs, less duplication costs)

►Some may not be practical• Handwritten notes, faded or messy

text


Failure to Preserve: Sanction Risks

20

• A party’s failure to meet its duty to preserver may result in sanctions, including payment of costs, adverse inference instructions, and default judgments or dismissals.

• The penalty for loss, or spoliation, of evidence will vary with the party’s culpability in destroying the evidence.

• Both the culpability required and the penalties vary among and even within jurisdictions.

Potential Risks of Failing to Preserve

Sanctions: Recent Case Law

•Voom HD Holdings, LLC v. Echostar Satellite LLC, 939 N.Y.S.2d 321 (N.Y. App. Div. 2012)

►EchoStar did not suspended automatic purge of email until 4 months after distributing a lit hold. Instead, it relied on custodians to identify relevant emails and move them to a folder prior to deletion.

►EchoStar also took a backup snapshot of its email server 4 days after plaintiffs filed the complaint (1 day after it sent the litigation hold).

►The motion court found that EchoStar violated the duty to preserve by failing to take the snapshot immediately, and granted the plaintiffs an adverse inference instruction and costs

►The appellate court affirmed, and further criticized EchoStar’s reliance on its employees to preserve evidence.


21


•Apple, Inc. v. Samsung Electronics Co., Ltd., 2012 WL 3627731 (N.D. Cal. Aug. 21, 2012)

►Samsung issued its first lit hold prior to Apple filing suit, and a second (expanding the scope and distribution) after the suit was filed.

►It continued to update the content of the hold notice and the recipient list, and held explanatory meetings with employees.

►It did not suspend 14-day auto-deletion of email.

►The court found Samsung willfully spoliated evidence.

►Samsung’s failure to issue “sufficiently distributed” litigation hold notices at the outset, and to monitor employees’ compliance with the hold’s detailed directions warranted sanctions.



•In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

►Products liability action involving spoliation allegations

►The court determined that the duty to preserve is triggered when litigation is imminent, rather than reasonably foreseeable, at least in the 7th Circuit.

►In identifying the trigger date, the court considered: • Other clinical trial litigation

• Privilege log entries

• Adverse incident reports

• “Internet Chatter”


22


Victor Stanley II (Grimm D. Md. 2010)

•Judge Grimm: The Circuits Differ in Their Standards

•Reinforces the importance of “reasonableness”►Duty “is neither absolute, nor intended to cripple organizations.” 50 Grimm, 37 U. BALT. L. REV. at 385.

►“[w]hether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established applicable standards.” Rimkus, 688 F. Supp. 2d at 613 (emphasis in Rimkus); see Legal Holds, supra, at 3 (“In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.”).


Victor Stanley II (Grimm D. Md)

23


Rimkus (Rosenthal S.D. Texas 2010)

•Judge Rosenthal: “Good Faith” Matters

•Judge Rosenthal believes that absent clear evidence of “bad faith” a party should not be subject to harsh sanctions:

►The circuit differences in the level of culpability necessary for an adverse inference instruction limit the applicability of the Pension Committee approach. And to the extent sanctions are based on inherent power, the Supreme Court’s decision in Chambers may also require a degree of culpability greater than negligence.


Rimkus (Rosenthal S.D. Texas 2010)

•Acceptance of Proportionality Concepts:►These general rules are not controversial. But applying them to determine when a duty to preserve arises in a particular case and the extent of that duty requires careful analysis of the specific facts and circumstances.

►It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done–or not done–was proportional to that case and consistent with clearly established applicable standards.

24


Potential Risks of Failing to Preserve

•Warning Signs / Techniques, Depending on Where You’re Sitting…

►Discovery requesting information about “steps taken to preserve evidence”

►Requests for depositions of IT personnel

►Preservation Notices from the Opponent including Government

►Questions in Depositions about “Retention Practices” or “Preservation Efforts”

•Best Practice for Dealing with Sanctions: Preservation. Avoid the issue altogether.


Questions?

25


Thank You!

26

Paralegal’s Guide to Evidence · In re Pradaxa (Dabigatran Etexilate) Products Liability...

Documents

Transcript of Paralegal’s Guide to Evidence · In re Pradaxa (Dabigatran Etexilate) Products Liability...