ED for IT

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Electronic Discovery OverviewTom OConnor

Gulf Coast Legal Technology Center

www.gltc.org

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AGENDA

How We Got Here

The problem -enormous amounts of data

The challenge -litigation risk The solution - new rules, new tools

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A Brief Look Back(circa 1990 to 2002)

Litigation was mostly Paper Based

The Legal profession was slow toembrace computerization

Corporate IS applications operated asseparate information Silos

Records Retention and Compliancerequirements were not taken seriously

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Claim

Calendar: Key Dates Tasks Rules-

Based

Case

InjuredParty

Profiled E-Docs. PID Evidentiary Docs. Expert Reports Scanned Docs. Correspondence Depositions

Any E-Docs.

DocumentDatabase

Reports

DocumentLinks: Any E-Docs Work Prod. Scanned Reports

Matters Settlements Collections. Security. Reporting. Administration.

Other CMPAreas

Historic: Events Work Premises Custom

ContactRecords

Financial:

Fees Expenses Allocations Co-Counsel

Address Book: Link to all

Parties Plaintiff Defendant Oppos. Counsel Staff Experts/Drs.

Co-counsel Etc.

DepositionTracking

DiscoveryTracking

Staffing: Tasks User

Profiles Security

Plaintiff

Defendant

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THE PROBLEM

Information gets doubled approximatelyevery four years

Global Disk Space Per Person (GDSP) *

1983 20k1996 28MB2000 472MB2004 1 GB2008 2 GB

2010 4 GB

Information Explosion. Confidentiality, Disclosure, and Data Access:

Theory and Practical Applications for Statistical Agencies

Average corporate hard drive holds 100 GB of data

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Source: www.emaillabs.com

1.5 trillion U.S. email messages weretransmitted in 2003

2.7 trillion by the end of 2007

Roughly 14 billionmessages per day

THE PROBLEM

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Boxes of Bytes

Megabytes1 2,500 50

FileSizes

= =

Typical PCHard DiskTypical Server

Hard Disk

Terabytes

Gigabytes

10 25,000 500

20 50,000 1

100 250,000 5

200 500,000 10

300 750,000 15

400 1,000,000 20

500 1,250,000 25

1,000 2,500,000 502,000 5,000,000 100

5,000 12,500,000 250

10,000 25,000,000 500

20,000 50,000,000 1

40,000 100,00,000 2

60,000 150,000,000 3

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E -Documents Include

Word processingdocuments

Graphic images

Web logs

SpreadsheetsEmail messages and attachments

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Old Sources Include:

Laptop harddrives

Desktop hard drives

Floppy discs

CDs/DVDs PDAs

Backup tapes

Pagers

Cell phones

Network servers

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New Sources Include:

IM (Instant Messaging)

VOIP

MP3 Storage Devices (iPods) Memory sticks and flash drives

GPS (Global Positioning Systems)

Retail purchase card databases

Blogs

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ANY type of electronic information WP documents

Spreadsheets Audio files

Video files

Pictures

Metadata Corrupt data

Deleted data

THE PROBLEM

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THE CHALLENGE

dont be a lost ball in tall weeds

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THE CHALLENGE

Duty to Preserve When faced with anticipated or pending litigation or government

investigation matters, corporations have a obligation to preservepotentially relevant evidence

Preservation requires preventing willful or inadvertent destruction oralteration (spoliation)

Records and information management is a key component,

especially where it can be used to suspend document destruction

The duty to preserve goes beyond documents underrecords management to wherever and in whateverformat the potentially relevant evidence resides!

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THE CHALLENGE

Increased Litigation Risk

THE CHALLENGE

Increased Litigation RiskPrice Waterhouse Cooper (2003)$345 million for overlyslow production

Phillip Morris (2004) -- $27.5 million sanction against 11senior executives who failed to preserve e-mails

Coleman Holdings v. Morgan Stanley (2005). . . $604million in compensatory damages and $805 million in

punitive damages after adverse instruction

Qualcom v Broadcom (2007) : attorneys reported to state bar

In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL

2310288 (D. Del. June 4, 2008)

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DUTIES OF COUNSEL

Duty of Confidentiality

Duty to Comply with Discovery Obligations Duty to Direct Discovery

Duty to be Proactive Regarding the Client's E-discovery

Duty to Preserve Data That is Reasonably Accessible

Duty to Confer Early re E-discovery Issues

Duty of Competence Communication

Meritorious Claims

Reporting

Misconduct

Duty of Loyalty: Conflicts with Clients

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Victor Stanley, Inc.v. Creative Pipe, Inc.,2008 WL 2221841 (D. Md. May 29, 2008) Selection and implementation of a proper search requires

technical and even scientific knowledge.

United States v. OKeefe,537 F. Supp. 2d 14 (D.D.C. 2008)

Equity Analytics, LLC v. Lundin,248 F.R.D. 331 (D.D.C. 2008) when parties decide to use a particular ESI search and retrieval methodology, they need to be

aware of literature describing the strengths and weaknessesand select the one that theybelieve is most appropriate for i ts intended task.

White v.Graceland Coll. for Lifelong Learning, Inc2008 WL 3271924 (D. Kan. Aug. 7, 2008), Paper print out of PDF is not reasonably usable format under FRCP

Goodbys Creek, LLC v.Arch Ins. Co.,2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) TIFF printouts of documents not valid production

Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175

(D. Md. Oct. 15, 2008)

Sedona Cooperation Proclamation

WHAT JUDGES SAY

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A SOLUTION

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Formal Discovery

Federal Rule 34 (b)Federal Rule 34 (b)

Permits the requesting party to specifically request documents inPermits the requesting party to specifically request documents in

native format.native format.

The responding party may oppose producing documents in nativeThe responding party may oppose producing documents in nativeformat, but must make a formal objection to the form requested onformat, but must make a formal objection to the form requested ona basis conforming to the Federal Rulesa basis conforming to the Federal Rules

There is no valid objection to production simply because theThere is no valid objection to production simply because thedocument contains metadatadocument contains metadata

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WHAT TO DO?WHAT TO DO?

Counsel should be very familiarCounsel should be very familiar

with the breadth and scope of ewith the breadth and scope of e--discovery issuesdiscovery issues

before the meet and confer with opposing counselbefore the meet and confer with opposing counsel

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Early actions to take:

1. Meet with the client.

Include IT representatives.2. Understand the clients systems andpolicies.

3. Issue Litigation Hold.

4. Agree (to the extent possible) on ESIand e-discovery issues before theinitial conference with the court

WHAT TO DO?

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A Meet & Confer InvolvingE-Discovery Experts

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CLIENT EXPECTATIONS

Expertise

Coordination with IT

Service & Pricing

Disclosure

Approvals

Decisions

Planned

Reactive

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Thank You.Thank You Very Much.