What is so special about ediscovery?

By Jennifer Tomlin Sanchez

(Why is it so expensive??)

Discovery is the Pretrial Exchange of Information in a Case

Scope of discovery: • California

Information is discoverable if it is relevant to the subject matter. (CCP § 2017.010.)

It is relevant to the subject matter if it will reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement Gonzalez v. Sup. Ct. 33 Cal.App.4th 1539, 1546 (1995).

Relevancy is Relevant

• It may vary with the size and complexity of the case.

• Relevancy may be considered with regard to the burden and value of the information sought. See Bridgestone/Firestone, Inv. v. Sup.Ct., 7 Cal.App.4th at 1391.

Federal cases: Disclosure before Discovery

• Parties required to disclose certain basic information about the lawsuit.

Initially, before discovery, parties must disclose the identify of witnesses and documents supporting the parties’ claims or defenses. FRCP 26.

After initial disclosures, parties have the right to discover any non-privileged matter that is

relevant to any party’s claim or defense. (FRCP 26 (b).)

Traditional Document Discovery

Serve written description requesting documents

Locate responsive documents, review for privilege, copy …

… and PRODUCE!

Entering the world of ediscovery

The discovery of Electronically Stored Information

(ESI) The scope of discovery doesn’t

change, only the means of production

Examples of ESI

• Emails

• Letters in word processing software

Examples of ESI

• Spreadsheets • Photographs• Sound recordings• Drawings or

specifications

• Calendars or day planners

• GPS data

Where is ESI found?

• Computer • Desk top• Laptop• Server• Flash drive• PDA- iphone,

Blackberry

• Disks- CD and DVD• Back up tapes• GPS device• Internet provider• My Space Page

Federal Rules Specific Rules about ediscovery

• Early meeting of parties required to meet and prepare a discovery plan including a plan for discovery of ESI “including the form or forms in which it should be produced”.

(FRCP 16(b), and 26(f)(3)(C).)

DUTY TO PRESERVE!! Duty to preserve is triggered upon notice the evidence is relevant to litigation “or when a party should

have known that the evidence may be relevant to future litigation.”

Zubulake IV

Preparing for LitigationInventory the responsive world

• Where is the ESI stored, and Who has access?» Identify servers, hard drives, lap tops, personal computers,

and the people who have access to them

Don’t forget back up tapes

The ediscovery plan will depend on the amount of data to be

reviewed or produced.

Bankers Box has 5,000 pagesCase with 900,000 pages: 180 boxes of paper

Terabyte- 1,000 gigabytes memory capacityEquivalent of 500 million typewritten pages

The Data Dump Avalanche

Privilege and “Clawback” agreements

• Inadvertent disclosure of privilege information may not be a waiver if timely “clawed back”.

(See FRCP 26(b)(5)(B).)

Form of Production

Native or PDF/TIFF? Optical Character Recognition (OCR)

Metadata: think “properties”

• Author

• Date created

• Date modified

• Blind copies

You Get What You Give

• Need a plan– Start early to get a good understanding of the

potentially relevant ESI and where it is stored

• Starting With Good Data Retention Policy

• Preserving Data– Follow up. Follow up again.

• Mining or harvesting responsive data• Meet the IT People• Be Careful of Relying on Others

– Consultants– IT people

Document Management

•Software

•Consultants

When ediscovery goes bad

Zubulake: $29 million verdict based on presumption emails which were destroyed would have helped the plaintiff prove her wrongful termination case.•Reported in four decision (I-V) at 217 F.R.D. 309; 230 F.R.D. 290; 216 F.R.D. 280; and, 220 F.R.D. 212. All in S.D.N.Y., 2003.

Morgan Stanley: hit for $1.58 billion, of which $850 million were punitive damages, when judge instructed the jury it could assume that the firm defrauded the plaintiff because of failure to comply with electronic discovery order to produce backup tapes.

Coleman v. Morgan Stanley, 2005 WL 679071 (Fla 2005), later reversed

Phillip Morris: $2.75 million sanction for ediscovery violations, including deletion of emails, even though there was no showing of bad faith. Phillip Morris failed to preserve email messages following Court order to preserve electronic data and prevent employees from deleting their emails.

U.S. v. Phillip Morris, 327 F.Supp.2d 21 (D.C. Dist. 2004)

In Re Fannie Mae Securities WL 215282009 (2009)

Federal agency spent $6 million to comply with a subpoena for electronic documents- that was 9% of its annual budget. It was not a party to the lawsuit. The Court refused to address the agency’s request for cost-shifting because the agency had already agreed to the production.

Danger! Email!

Would you like it in the press?Would you like it on a competitor’s desk?Would you like in the opposition’s hands?

Would you like it read on the stand?

If NO to any of these…

DO NOT WRITE IT!