ELECTRONICALLY S INFORMATION (“ESI”) A LITIGATION PRIMER · (b) Also may impact litigation holds, as the parties will have the actual requests in hand versus an assumption of

ELECTRONICALLY STORED INFORMATION (“ESI”) – A LITIGATION PRIMER

Kellam T. Parks, Esq. - Parks Zeigler, PLLC www.pzlaw.com [email protected]

http://www.pzlaw.com/

mailto:[email protected]

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What is Electronically Stored Information (“ESI”)? ESI is, not surprisingly, information stored electronically. This includes a wide-variety of media and formats; from the data sitting on an office’s computer and server hard drives to those stored on remote servers accessed through the cloud. This information includes social media accounts, emails, instant messaging files, word processing files, spreadsheets, smart phones, etc. The court rules, discussed herein, are broad in their definition on purpose, as the media changes as technology advances and to attempt to list every type of media would be impossible and any such list would be quickly outdated. ESI is important, especially to litigators, as it is a fertile ground of potentially relevant information for a case. It is imperative that litigators understand the rules governing ESI and the discovery process to ensure that the information is (1) properly captured and (2) able to be properly admitted into evidence. The Federal Rules of Civil Procedure are the most comprehensive, being substantially updated on December 1, 2015. Virginia has some Rules governing ESI, but they are much less defined and encompassing than the Federal Rules. Federal Rules of Civil Procedure

A. The December 1, 2015 amendments are significant. There is a chart at the end of materials compiled by the Clerk's Office for the U.S. District Court for the District of Maryland which is a useful comparison of the Rules before and after the 2015 Amendments.

1. Federal Rule 16 - Pretrial Conference

a. 16(b)(3)(B)(iii) - Allows a scheduling order to "provide for disclosure, discovery, or preservation of electronically stored information"

b. 16(b)(3)(B)(iv) - Allows a scheduling order to "include any agreements parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502" [FRE 502 concerns attorney-client privilege and work product protection and limitations on waivers]

2. Federal Rule 26 - Duty to Disclose; General Provisions Governing Discovery

a. 26(f) - Conference of the Parties; Planning for Discovery

(1) 26(f)(3) - Discovery Plan must state the parties' views and proposals on various items, the relevant ones:

(2) 26(f)(3)(C) - "any issues about disclosure, discovery, or preservation of

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electronically stored information, including the form or forms in which it should be produced"

(3) 26(f)(3)(D) - "any issues about claims of privilege or of protection as trial-preparation materials, including - if the parties agree on a procedure to assert these claims after production - whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502"

b. 26(b) - Discovery Scope and Limits

(1) 26(b)(1) - "Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable."

(a) Important 2015 Amendments

i. Consolidated and restored proportionality factors which had been moved and minimized when introduced in 1983.

ii. Removed "reasonably calculated to lead to the discovery of admissible evidence" to address misuse to characterize the scope of discovery rather than its intended purpose of preventing objections as to relevancy of admissibility.

iii. Impact of amendments are to attempt to reign in discovery and can impact ESI requests accordingly.

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c. 26(d) - Timing and Sequence of Discovery

(1) 26(d)(2) - Now allows either party to deliver early Rule 34 requests [requests for production of documents] discovery to each other 21 days after service of the summons and complaint (rather than waiting until the Rule 26(f) scheduling conference as previously the case).

(a) Although not considered served until the Rule 26(f) conference, this can impact ESI planning as the requests will be in hand prior to the conference for better advanced knowledge.

(b) Also may impact litigation holds, as the parties will have the actual requests in hand versus an assumption of what may be requested or a general litigation hold letter.

3. Federal Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

a. 37(e) - Failure to Preserve ESI

"If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may

order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another

party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment."

b. Notes to this Rule are particularly helpful for the nuances of the factors discussed in the Rule.

c. 2015 Amendments provide a much more affirmative approach to address lost ESI and shoring up some holes in the 2006 version (e.g. providing steps the Court can take versus just what it cannot do and trying to provide universal guidance to avoid breaks in Circuits' handling of 2006 Rules)

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Rules of Supreme Court of Virginia 1. Rule 1:19 - Pretrial Conferences

a. The court may, upon request of counsel of record, or on its own discretion, schedule a final pretrial conference to consider a wide variety of matters, which could include ESI issues.

2. Rule 4:13 - Pretrial Procedure; Formulating Issues

a. The court may in its discretion direct the attorneys for the parties to appear for a conference to consider numerous issues, including subsections:

(8) "issues relating to the preservation of potentially discoverable information, including electronically stored information and information that may be located in sources that are believed not reasonably accessible because of undue burden or cost;"

(9) "provisions for disclosure or discovery of electronically stored information;" and

(10) "any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production."

3. Rule 4:1 - General Provisions Governing Discovery

a. 4:1(a) Discovery Methods. – “Parties may obtain discovery by one or more of the following methods: … production of documents, electronically stored information, or things or permission to enter upon land or other property, for inspection and other purposes…”

b. 4:1(b)(1) - Scope of Discovery, General - "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Subject to the provisions of Rule 4:8 (g), the frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the

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case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice to counsel of record or pursuant to a motion under subdivision (c)."

c. 4:1(b)(7) - "Electronically Stored Information -- A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 4:1(b)(1). The court may specify conditions for the discovery, including allocation of the reasonable costs thereof."

4. 4:4 - Stipulations Regarding Discovery

a. "Unless the court orders otherwise, the parties may by written stipulation…(2) modify the procedures provided by the Rules for other methods of discovery, including discovery of electronically stored information."

5. 4:8 - Interrogatories

a. 4:8(f) - "Option to Produce Business Records. -- Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. A specification of electronically stored information may be made under this Rule if the information will be made available in a reasonably usable form or forms."

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b. 4:9 - Production by Parties of Documents

"(a) Scope. -- Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 4:1(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to produce any such documents or electronically stored information to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b). (b) Procedure. (i) Initiation of the Request. -- The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. (ii) Response. -- The party upon whom the request is served shall serve a written response within 21 days after the service of the request, except that a defendant may serve a response within 28 days after service of the complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and production shall be permitted as to the remaining parts. If objection is made to the requested form or forms for producing electronically stored information /- or if no form was specified in the request /- the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 4:12(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A motion under this Rule must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an

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effort to resolve the dispute without court action. (iii) Organization, Reasonable Accessibility, and Forms of Production. -- Unless the parties otherwise agree, or the court otherwise orders:

(A) Production of Documents. A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (B) Electronically Stored Information.

(1) Responses to a request for production of electronically stored information shall be subject to the provisions of Rules 4:1(b)(7) and 4:1(b)(8). (2) If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form.

(iv) Proceedings Under the Uniform Interstate Depositions and Discovery Act. --Production of documents and electronic records sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code §§ 8.01-412.8 through 8.01-412.15."

c. Rule 4:9A - Production from Non-Parties of Documents (i.e. Subpoenas Duces Tecum)

"(b) Content of Subpoena Duces Tecum; Objections. -- Subject to paragraph (d) of this Rule, a subpoena duces tecum shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents, electronically stored information, or designated tangible things (including writings, drawings, graphs, charts, photographs, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form) designated and described in said request, and to permit the party filing such request, or someone acting in his behalf, to inspect and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 4:1(b) which are in the possession, custody or control of such person to whom the subpoena is directed, at a time and place and for the period specified in the subpoena. A subpoena may specify the form or forms in which electronically stored information is

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to be produced. (c) Responding to a Subpoena; Objections; Production of Documents and Electronically Stored Information.

(1) Production of Documents. -- A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) Electronically Stored Information.

(A) A person responding to a subpoena need not provide discovery of electronically stored information from sources the responder identifies as not reasonably accessible because of undue burden or cost. On motion to compel production or to quash a subpoena, the person from whom production is sought under the subpoena must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order production of responsive material from such sources if the subpoenaing party shows good cause, considering the limitations of Rule 4:1(b)(1). The court may specify conditions for the production of such information, including allocation of the reasonable costs thereof. (B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding thereto must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A person responding to a subpoena need not produce the same electronically stored information in more than one form.

(3) Objections and Procedures. -- The court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may (1) quash or modify the subpoena, or the method or form for production of electronically stored information, if the subpoena would otherwise be unduly burdensome or expensive, (2) condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of some or all of the reasonable cost of producing the documents, electronically stored information, and tangible things so designated and described or (3) direct that the documents and tangible things subpoenaed, including electronically stored information (unless another location for production is agreed upon by the requesting and producing parties), be returned only to the office of the clerk of the court through which such documents and tangible things are subpoenaed in which event, upon request of any party in

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interest, or his attorney, the clerk of such court shall permit the withdrawal of such documents and tangible things by such party or his attorney for such reasonable period of time as will permit his inspection, photographing, or copying thereof…

(f) Copies of Documents and Other Subpoenaed Information… (2) Electronically stored information. When one party to a civil proceeding subpoenas and obtains electronically stored information, the subpoenaing party shall, if requested, provide true and full copies of the same to any party or that party's attorney, in the form the subpoenaing party received the information, upon reimbursement of the proportionate cost of obtaining such materials."

Litigation Issues with ESI A. Getting Informed and Educated

1. Not properly identifying how ESI is stored, both with your clients, as well as opposing parties/third-parties from which you want the ESI. Need to consider the type of evidence (computers, tablets, cell phones, photocopiers, email accounts, social media accounts, etc.) a. Get help - involve IT professionals, within your clients' organization (if

they have such persons - hopefully they do) and possibly third-party experts to ensure you have the right information needed for ESI issues.

b. The U.S. District Court for the Northern District of California has created

a Checklist for the Rule 26(f) Meet and Confer regarding ESI that is a good start to think about when considering how to handle ESI in general.

c. A well-regarded comprehensive resource for counsel for this topic, and

in general regarding ESI, is Electronic Discovery and Records and Information Management Guide: Rules, Checklists and Forms, Browning Marean, Jay Grenig, Kelly Twigger, and Matthew Stippich. The current version of the book is 2016-2017 edition and is regularly updated.

B. Not properly preserving ESI

1. Preservation Letters - send litigation hold letters when you believe litigation is reasonably foreseeable.

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a. Craig Ball, a well-known trial lawyer and certified computer forensic

examiner has a comprehensive Preservation Letter guide on his website (which has other useful information on ESI matters)

http://www.craigball.com/perfect%20preservation%20letter.pdf

2. Ensure your client understands their obligations when they receive a litigation hold letter.

a. Duty to preserve "relevant" ESI, which is determined by identifying "key players," or those that have the relevant information. Zublake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (N.Y.S.D. 2003).1

3. Includes communicating the litigation hold to every person affected. Again, important to identify the key players and that counsel should ideally be involved in communicating with these key players.

4. Follow-up with your client to ensure that the litigation hold is continuing to be followed during the litigation. Regular reminders to everyone affected by the hold is advised.

C. Not properly propounding Discovery

1. May be necessary to propound discovery to the other side seeking information on how their information is stored and all of the details before getting to the actual information sought.

2. Tips - Things to Include in Discovery Requests a. A complete listing of all sources of ESI - be exhaustive to ensure

nothing missed. b. Identification of all people responsible for maintaining the party's

hardware and software. c. Identification of those responsible for the party's document retention

and destruction policies. d. Consider strategy of being overly-inclusive versus specific

(1) If a broad request, could be objected to as overly-broad or increase costs. Specific requests as to location or specific media can avoid these issues, but could possibly miss items.

1 The Zublake decisions issued by Judge Shira A. Scheindlin, which concern a case of alleged employment discrimination, are excellent considerations of ESI and preservation obligations. Judge Scheindlin discussed cost shifting analysis and the types and accessibility of media in that determination.

http://www.craigball.com/perfect%20preservation%20letter.pdf

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(2) Need to consider goals, budget, time, and venue when crafting ESI discovery to ensure each is best tailored for your particular case.

e. Consider the format you want the ESI produced (native format versus some other methodology)

D. Misc. Considerations

1. Virginia cases considering ESI (or lack thereof) a. There are few Virginia cases discussing ESI. The only one with any

real discussion is listed below and attached for reference.

(1) Huff v. Winston, 89 Va. Cir. 429 (January 15, 2015, Roanoke County); appeal granted as to the circuit court’s enter of partial summary judgment 2016 Va. LEXIS 29 (February 19, 2016), not as to the ESI ruling.

(2) As there is a scarcity of Virginia precedent considering ESI, counsel should rely on the Virginia Rules and extrapolate to the federal decisions where the Rules are similar to maximize their chances of prevailing.

2. The Sedona Conference a. The Sedona Conference is a non-profit legal policy

research/educational organization which has working groups comprised of various knowledgeably individuals on a variety of topics, which include ESI. They have published numerous documents of interest and use for this area, including the topics of protection of privileged ESI, proportionality, Federal Rules 34 and 45 as to “possession, custody, or control,” social media, legal holds, etc.

https://thesedonaconference.org/publications

3. Sample ESI Order a. 2015 U.S. District, EDVA, Alexandria Division - Attached

E. Trial – Virginia Rules [Corresponding Federal Rules in Brackets]

1. The Hearsay Rule Applied to ESI a. Virginia Rules of Evidence

https://thesedonaconference.org/publications

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(1) Article VIII - Hearsay (Rules 2:801-2:806) [Rules 801-807]

(a) Rule 2:801 – Definitions [Rule 801] (1) 2:801(c) “’Hearsay’ is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

(b) Rule 2:802 - Hearsay Rule [Rule 802] (1) "Hearsay is not admissible except as provided by

these Rules, other Rules of the Supreme Court of Virginia, or by Virginia statutes or case law."

(2) Includes recognized exceptions as stated in Rules 2:803 and 2:804. [Rules 803-804]

(3) Strongest rationale for the hearsay rule is the lack of opportunity for cross-examination of the absent declarant.

b. Special Context as to ESI

(1) Records generated exclusively by a computerized system or

process (e.g. the fax report showing when sent and received) are not made by a declarant as required by Rule 2:801 and therefore should not be considered statements and thus not hearsay. (a) There may be, of course, issues with proving

authenticity as a separate hurdle.

(2) Frequent Hearsay Exceptions for ESI (a) Rule 2:803(1) - Present Sense Impression [Rule 803(1)]

(1) "A spontaneous statement describing or explaining an event or condition made contemporaneously with, or while, the declarant was perceiving the event or condition.";

(b) Rule 2:803(2) - Excited Utterance [Rule 803(2)] (1) "A spontaneous or impulsive statement

prompted by a startling event or condition and made by a declarant with firsthand knowledge at a time and under circumstances negating deliberation.";

(c) Rule 2:803(3) - Then Existing Mental, Emotion, or Physical Condition [Rule 803(3)]

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(1) "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant's will.";

(d) Rule 2:803(6) – Records of a Regularly Conducted Activity (i.e. Business Records) [Rule 803(6)]

“A record of acts, events, calculations, or conditions if:

(A) the record was made at or near the time of the acts, events, calculations, or conditions by--or from information transmitted by--someone with knowledge; (B) the record was made and kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making and keeping the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 2:902(6) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.”

c. Bottom Line

(1) Just because the evidence is electronic in nature does not

alter the fundamental rules of hearsay. Specific challenges exist as to authentication, etc. as will be discussed below, but hearsay is hearsay and not admissible. Certain exceptions show up more frequently due to the nature of ESI and should be examined for admissibility if issues arise.

2. Admission of Specific Forms of ESI

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Must confront three primary hurdles for admissibility - (a) Authentication; (b) Hearsay; and (c) Best Evidence Rule (and the usual relevance and probative versus prejudicial issues, not discussed here). a. Authentication

(1) Virginia Rule 2:901 - Requirement of Authentication or Identification - "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the thing in question is what its proponent claims." [Rule 901] (a) The standard is not that the judge need determine that

the proffered exhibit is, in fact, what the offering party claims, but rather just that there is enough evidence to allow some rational jurors to conclude that the object is what the offering party claims it is. The Law of Evidence in Virginia §16-1 (2015).

b Hearsay (see section above) c Best Evidence/Original Writing

(1) Virginia Rule 2:1002 - Requirement of Production of Original (a) "To prove the content of a writing, the original writing is

required, except as otherwise provided in these Rules, other Rules of the Supreme Court of Virginia, or in a Virginia statute." [Rule 1002]

(2) Virginia Rule 2:1001 – Definitions [Rule 1001] (a) "Writings" include mechanical or electronic recordings,

as well as other forms of data compilation or preservation.

(b) "Originals" are the writings themselves or any other writing intended to have the same effect by a person executing or issuing it.

(3) Virginia Rule 2:1004 - Admissibility of Other Evidence of Contents [Rule 1004] (a) Originals are not required and other evidence of the

contents of a writing is admissible if (a) all originals are lost or have been destroyed (so long as not in bad faith); (b) no original can be obtained by judicial process or procedure (again absent bad faith); (c) original is in the control of the party against whom

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offered, that party put on notice that the contents would be a subject of proof at a hearing, and they do not present it at the hearing; and (d) the writing is not closely related to a controlling issue (i.e. collateral matter) (1) 2:1004(a) is particularly useful for ESI where

records are easily deleted, lost because of hardware failures, etc.

(4) Virginia Rule 2:1006 – Summaries [Rule 1006] (a) "The contents of voluminous writings that, although

admissible, cannot conveniently be examined in court may be represented in the form of a chart, summary, or calculation. Reasonably in advance of the offer of such chart, summary, or calculation, the originals or duplicates shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court." (1) This Rule is useful when ESI can be frequently

voluminous. (5) The Federal Rules specifically define that the original of ESI

is any printout - or other output readable by sight - if it accurately reflects the information. [Rule 1001(d)] (a) There is no such specific Rule in Virginia, nor is there

any case law that this author is aware of that specifically addresses ESI and the best evidence rule. The closest ruling is by implication in Tickel v. Commonwealth, 11 Va. App. 558 (1991). There, the Court reversed a conviction by wrongful admission of DMV records based on hearsay grounds, but seemed to assume no issue with the best evidence rule. At best dealing with this issue by implication.

(b) By way of analogous argument, there is also Virginia Code §8.01-413 which deals with the admission of copies of hospital records if the original would be admissible. In that statute, it specifically states in the description of records "…or printout or other hard copy generated from computerized or other electronic storage." This can potentially be used to buttress an argument for admissibility should ESI evidence be challenged under the best evidence rule (along with FRE 1001(d)).

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Emails

A. Authenticity

1. First step is to have the person who authored the email testify as to its authenticity.

2. If this is not possible (e.g. the person denies having authored the email), then other means may be necessary.

a. Circumstantial evidence of distinctive characteristics.

(1) External Facts Verifying Identity (a) See Bloom v. Commonwealth, 34 Va. App. 364 (2001);

affirmed Bloom v. Commonwealth, 262 Va. 814 (2001). (instant message communications admitted due to external facts verifying personal information of the defendant as a party to the emails - the Court considered internet communications similar to telephone conversations where the identity of the parties to the conversation can be proven by direct or indirect evidence). Although this case dealt with instant messages, the same principle would apply to emailed conversations as it is merely a different format of electronic delivery of communications.

(2) Metadata. (a) It should also be possible to establish authenticity through

metadata, as it would be another form of circumstantial evidence to show distinctive characteristics. This has been cited with approval by one of the seminal federal court cases on ESI admissibility using FRE 901(b)(4), which is substantially similar to Virginia Rule 2:901 and "the distinctive characteristic" discussion in case law (Virginia merely lacks a specific Rule adoption). See Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007)(over 100 page decision diving deep into ESI – recommended reading for ESI issues).

(b) As an example, obtain the routing information from the email service, which shows the IP addresses of all servers that handled the message (which can be spoofed or blocked if someone makes the effort, but not the usual course of action of senders).

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(1) https://whatismyipaddress.com/ - website to lookup an IP address once obtained and also has information about how IP addresses work.

b. Expert witnesses and comparison by trier of fact.

(1) Evidence can be proven by comparison from experts or the trier of fact. See Adams v. Ristine, 138 Va. 273 (1924)(dealing with handwriting and signatures); See also Lorraine, 241 F.R.D. at 542. (applying FRE 901(b)(3), which is substantially similar to the Virginia law on the subject).

Text Messages A. Authenticity

1. Same analysis as with emails as to personal knowledge, circumstantial evidence, or expert witnesses; however metadata proof is not as simple to obtain or prove.

2. Practical Tips

a. Subpoenas to cell phone providers for the actual text messages or attachments will have little effect as they only retain the actual data for as little as a few days and possibly for up to a few weeks at most. This doesn’t leave a lot of time to have an action pending and a subpoena issued and served.

b. Possible to retrieve texts from the devices themselves, even if deleted; however, results vary and can be expensive.

c. Have cell call records to show if there were texts sent at that time. Call logs are kept by the providers as opposed to the text messages themselves. Easy enough to change the address book name of a sender to send texts to a party pretending to be someone else. (e.g. a father changes the name of his girlfriend in his phone to be the name of his child's mother and then the girlfriend sends damning texts pretending to be the mother - father takes screenshots of the texts purported to be from the mother to use as evidence of bad behavior). If you have the cell records to show that no communication was made from the purported sender, will show the text messages to be falsified.

https://whatismyipaddress.com/

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Social Media A. Authenticity

1. Same analysis as with emails as to personal knowledge, circumstantial evidence, or expert witnesses.

2. Can additionally obtain information from the social media provider, though this can be difficult and costly (these are frequently fought by the provider).

3. Can also potentially have a forensic review of the computer or device of the person allegedly creating the social media posts. Again, this is costly.

Voicemail, Video, and Audio Recordings A. Authenticity

1. Foundation can be shown by a witness who is familiar with the things seen or the sound in the recording with an explanation of the basis of the familiarity and testifies that the item is a fair, accurate and true depiction what it purports it to be. It need not be proved by the person who made the voicemail, video, or audio recording. See Williams v. Commonwealth, 2015 Va. App. LEXIS 391 (2015); citing Bailey v. Commonwealth, 259 Va. 723, 738 (2000)(internal citations omitted).

Practical Tip for ESI Admission – Requests for Admission (Virginia Rule 4:11 and Federal Rule of Civil Procedure 36] A. Get the other side to acknowledge the authenticity and genuineness of email,

documents, and other ESI. 1. Pursuant to Virginia Rule 4:12(c), should a party fail to admit the

genuineness of any document under Rule 4:11, and if the party requesting the admissions thereafter proves the genuineness of the document, that party may seek reasonable expenses in making that proof, including reasonable attorney’s fees. Particularly, Rule 4:12(c) states that “[t]he court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 4:11(a), or (2) the admission sought was of no substantial importance, or (3) the partying failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.” (emphasis added)

Page 20 of 20

a. While there is certainly wiggle room for the non-admitting party under

4:12(c), the burden shifts to that party if the genuineness of the document is proved to avoid an award of costs/fees and as a practical matter, addressing authenticity of documents well ahead of the trial and rattling the sabers of substantial costs, logic of authenticity, etc. may go a long way to avoiding authenticity battles at trial.

2. Same provision in Federal Rule of Civil Procedure 37(c)(2)

Comparison of Current Federal Civil Rules and the Proposed Amendments Effective December 1, 2015

This document is provided by the U.S. District Court for the District of Maryland for reference purposes only and does not constitute legal advice.

Old Rule New Rule Commentary

Rule 1. Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed[,] and administered[, and employed by the court and the parties] to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 1. Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, the parties also share the responsibility to employ the rules in the same way.

This amendment neither creates a new independent source of sanctions nor does it abridge the scope of any other of these rules.


2


Rule 4. Summons (d) Waiving Service. (1) Requesting a Waiver. (C) be accompanied by a copy of the complaint, 2 copies of a[the] waiver form[ appended to this Rule 4], and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5[the form appended to this Rule 4], of the consequences of waiving and not waiving service;

(m) Time Limit for Service. If a defendant is not served within 120 [90] days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) [or to service of a notice under Rule 71.1(d)(3)(A)].

Rule 4. Summons (d) Waiving Service. (1) Requesting a Waiver. (C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service;

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

Forms 5 and 6 are now directly incorporated into Rule 4 because of the abrogation of Rule 84 and the other official forms.

The presumptive time for serving a defendant is reduced from 120 days to 90 days. This change, together with the shortened times for issuing a scheduling order set by amended Rule 16(b)(2), will reduce delay at the beginning of litigation.

The final sentence is amended to make it clear that this reference to Rule 4 in Rule 71.1(d)(3)(A) does not include Rule 4(m).

Shortening the time to serve under Rule 4(m) means that the time of the notice required by Rule 15(c)(1)(C) for relation back is also shortened.


3


Rule 16. Pretrial Conferences; Scheduling; Management (b) Scheduling. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge – or a magistrate judge when authorized by local rule – must issue a scheduling order;

(A) after receiving the parties’ report under Rule 26(f); or

(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference by telephone, mail, or other means.

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event [unless the judge finds good cause for delay, the judge must issue it] within the earlier of 120 [90] days after any defendant has been served with the complaint or 90 [60] days after any defendant has appeared.

Rule 16. Pretrial Conferences; Scheduling; Management (b) Scheduling. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge – or a magistrate judge when authorized by local rule – must issue a scheduling order;

(A) after receiving the parties’ report under Rule 26(f); or

(B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference .

(2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

The provision for consulting at a scheduling conference by “telephone, mail, or other means” is deleted. The conference may be held in person, by telephone, or by more sophisticated electronic means.

The time to issue the scheduling order is reduced to the earlier of 90 days (not 120 days) after any defendant has been served, or 60 days (not 90 days) after any defendant has appeared. This change, together with the shortened time for making service under Rule 4(m), will reduce delay at the beginning of litigation. At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order.


4


Rule 16 (continued) (3) Contents of the Order. (B) Permitted Contents. The scheduling order may:

(iii) provide for disclosure[,] or discovery[, or preservation] of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial- preparation material after information is produced[, including agreements reached under Federal Rule of Evidence 502; (v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;] (v[vi]) set dates for pretrial conferences and for trial; and

(vi[vii]) include other appropriate matters.

Rule 16 (continued) (3) Contents of the Order. (B) Permitted Contents. The scheduling order may:

(iii) provide for disclosure, discovery, or preservation of electronically stored information;

(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial- preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502;

(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;

(vi) set dates for pretrial conferences and for trial; and

(vii) include other appropriate matters.

The scheduling order may provide for preservation of electronically stored information, which was also added to the provisions of a discovery plan under Rule 26(f)(3)(C). Parallel amendments to Rule 37(e) recognize that a duty to preserve discoverable information may arise before an action is filed.

The scheduling order may also include agreements incorporated in a court order issued under Evidence Rule 502, controlling the effects of disclosure of information covered by attorney-client privilege or work-product protection. This topic was also added to the provisions of a discovery plan under Rule 26(f)(3)(D).

Finally, the scheduling order may direct that the movant must request a conference with the court before filing a motion for an order relating to discovery. However, the decision whether to require such conferences is left to the discretion of the judge in each case.


5


Rule 26. Duty to Disclose; General Provisions; Governing Discovery (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[ and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.] -- including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Rule 26. Duty to Disclose; General Provisions; Governing Discovery (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Information is discoverable under revised Rule 26(b)(1) if it is relevant to any party’s claim or defense and is proportional to the needs of the case. The considerations that bear on proportionality are taken from Rule 26(b)(2)(C)(iii), with slight modifications.


6


Rule 26 (continued) (2) Limitations on Frequency and Extent. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discover otherwise allowed by these rules or by local rule if it determines that:

(iii) the burden or expense of the proposed discovery [is outside the scope permitted by Rule 26(b)(1)] outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

(c) Protective Orders. (1) In General.

* * * (B) specifying terms, including time and place [or the allocation of expenses], for the disclosure or discovery;

Rule 26 (continued) (2) Limitations on Frequency and Extent. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discover otherwise allowed by these rules or by local rule if it determines that:

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General.

* * * (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

Rule 26(b)(2)(C)(iii) is amended to reflect that the proportionality considerations were moved to Rule 26(b)(1).

Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that allocate expenses for disclosure or discovery.


7


Rule 26 (continued) (d) Timing and Sequence of Discovery.

[(2) Early Rule 34 Requests. (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served. (B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.] (2[3]) Sequence. Unless, on motion, [the parties stipulate or] the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

Rule 26 (continued) (d) Timing and Sequence of Discovery. (2) Early Rule 34 Requests. (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) to that party by any other party, and

(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another party more than 21 days after that party has been served even though the parties have not yet had a Rule 26(f) conference. Delivery may be made by any party to the party that has been served, and by that party to any plaintiff and any other party that has been served.

Rule 26(d)(3) is renumbered and amended to recognize that the parties may stipulate to case-specific sequences of discovery.


8


Rule 26 (continued) (f) Conference of the Parties; Planning for Discovery. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclose[,] or discovery[, or preservation] of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including – if the parties agree on a procedure to assert these claims after production – whether to ask the court to include their agreement in an order [under Federal Rule of Evidence 502];

Rule 26 (continued) (f) Conference of the Parties; Planning for Discovery. (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclose, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including – if the parties agree on a procedure to assert these claims after production – whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery plan: issues about preserving electronically stored information and court orders under Evidence Rule 502.


9


Rule 30. Depositions by Oral Examination (a) When a Deposition May Be Taken. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)[(1) and ](2):

(d) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)[(1) and ](2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

Rule 30. Depositions by Oral Examination (a) When a Deposition May Be Taken. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):

(d) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

Rule 30 is amended similarly to Rules 31 and 33 to reflect the new recognition of proportionality in Rule 26(b)(1).


10


Rule 31. Depositions by Written Questions (a) When a Deposition May Be Taken. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)[(1) and ](2):

* * *

Rule 33. Interrogatories to Parties (a) In General (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)[(1) and ](2).

Rule 31. Depositions by Written Questions (a) When a Deposition May Be Taken. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):

* * *

Rule 33. Interrogatories to Parties (a) In General (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).

Rules 31 and 33 are amended similarly to Rule 30 to reflect the new recognition of proportionality in Rule 26(b)(1).


11


Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (b) Procedure. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served[ or – if the request was delivered under Rule 26(d)(2) – within 30 days after the parties’ first Rule 26(f) conference]. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection[with specificity the grounds for objecting] to the request, including the reasons.[ The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.]

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (b) Procedure. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or – if the request was delivered under Rule 26(d)(2) – within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

Rule 34(b)(2)(A) is amended to conform with new Rule 26(d)(2). The time to respond to a Rule 34 request delivered before the parties’ Rule 26(f) conference is 30 days after the first Rule 26(f) conference.

Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C), directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.

Rule 34(b)(2)(B) is further amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. The response to the request must state that copies will be produced. The production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response.


12


Rule 34 (continued) (C) Objections. [An objection must state whether any responsive materials are being withheld on the basis of that objection. ]An objection to part of a request must specify the party and permit inspection of the rest.

Rule 34 (continued) (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the party and permit inspection of the rest.

Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection.


13


Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (3) Specific Motions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iv) a party[ fails to produce documents or] fails to respond that inspection will be permitted – or fails to permit inspection – as requested under Rule 34.

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (3) Specific Motions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iv) a party fails to produce documents or fails to respond that inspection will be permitted – or fails to permit inspection – as requested under Rule 34.

Rule 37(a)(3)(B)(iv) is amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. This change brings item (iv) into line with paragraph (B), which provides for a motion for an order compelling “production, or inspection.”


14

Rule 37 (continued) (e) Failure to Provide[Preserve] Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.[If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Rule 37 (continued) (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

The current Rule 37(e) is replaced by a new Rule 37(e). The new Rule 37(e) authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures.


15

Rule 55. Default; Default Judgment (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a [final ]default judgment under Rule 60(b).

Rule 55. Default; Default Judgment (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).

Rule 55(c) is amended to clarify the interplay between Rules 54(b), 55(c), and 60(b). A default judgment that does not dispose of all the claims among all parties is not a final judgment under Rule 54(b).


16

Rule 84. Forms

[Abrogated (Apr. __, 2015, eff. Dec. 1, 2015.] The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.

Rule 84. Forms Abrogated (Apr. __, 2015, eff. Dec. 1, 2015.

Based on the many alternative sources for forms, Rule 84 and the Appendix of Forms have been abrogated.

Revised December 1, 2015

United States District Court Northern District of California

CHECKLIST FOR RULE 26(f) MEET AND CONFER REGARDING ELECTRONICALLY STORED INFORMATION

In cases where the discovery of electronically stored information (“ESI”) is likely to be a significant cost or burden, the Court encourages the parties to engage in on-going meet and confer discussions and use the following Checklist to guide those discussions. These discussions should be framed in the context of the specific claims and defenses involved. The usefulness of particular topics on the checklist, and the timing of discussion about these topics, may depend on the nature and complexity of the matter.

I. Preservation

The ranges of creation or receipt dates for any ESI to be preserved.

The description of data from sources that are not reasonably accessible and that will not be reviewed for responsiveness or produced, but that will be preserved pursuant to Federal Rule of Civil Procedure 26(b)(2)(B).

The description of data from sources that (a) the party believes could contain relevant information but (b) has determined, under the proportionality factors, is not discoverable and should not be preserved.

Whether or not to continue any interdiction of any document destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically-recorded material.

The names and/or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager,” etc.).

The number of custodians for whom ESI will be preserved.

The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases.

Any disputes related to scope or manner of preservation.

II. Liaison

The identity of each party’s e-discovery liaison.

III. Informal Discovery About Location and Types of Systems

Identification of systems from which discovery will be prioritized (e.g., email, finance, HR systems).

Description of systems in which potentially discoverable information is stored.

Location of systems in which potentially discoverable information is stored.

How potentially discoverable information is stored.

How discoverable information can be collected from systems and media in which it is stored.

IV. Proportionality and Costs

The amount and nature of the claims being made by either party.

The nature and scope of burdens associated with the proposed preservation and discovery of ESI.

The likely benefit of the proposed discovery.

Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic discovery vendor or a shared document repository, or other cost-saving measures.

Revised December 1, 2015 2

Limits on the scope of preservation or other cost-saving measures.

Whether there is relevant ESI that will not be preserved pursuant to Fed. R. Civ. P. 26(b)(1), requiring discovery to be proportionate to the needs of the case.

V. Search The search method(s), including specific words or phrases or other methodology, that will be

used to identify discoverable ESI and filter out ESI that is not subject to discovery.

The quality control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI.

VI. Phasing Whether it is appropriate to conduct discovery of ESI in phases.

Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Fed. R. Civ. P. 34 document discovery.

Sources of ESI less likely to contain discoverable information from which discovery will be postponed or avoided.

Custodians (by name or role) most likely to have discoverable information and whose ESI

will be included in the first phases of document discovery.

Custodians (by name or role) less likely to have discoverable information and from whom discovery of ESI will be postponed or avoided.

The time period during which discoverable information was most likely to have been created or received.

VII. Production The formats in which structured ESI (database, collaboration sites, etc.) will be produced.

The formats in which unstructured ESI (email, presentations, word processing, etc.) will be produced.

The extent, if any, to which metadata will be produced and the fields of metadata to be produced.

The production format(s) that ensure(s) that any inherent searchablility of ESI is not degraded when produced.

VIII. Privilege How any production of privileged or work product protected information will be handled.

Whether the parties can agree upon alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification.

Whether the parties will enter into a Fed. R. Evid. 502(d) Stipulation and Order that addresses inadvertent or agreed production.

Huff v. Winston, Not Reported in S.E.2d (2015)

89 Va. Cir. 429

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

89 Va. Cir. 429Circuit Court of Virginia,

Roanoke County.

Pamela Ennis HUFFv.

Michael G. WINSTON, Sheriff.

No. CL14–587.|

Jan. 15, 2015.

Attorneys and Law Firms

Thomas E. Strelka, Esquire, Strickland, Diviney &Strelka, Roanoke, VA.

Jim H. Guynn, Jr., Esquire, Guynn & Dillon, P.C., Salem,VA.

Opinion

DAVID B. CARSON, J.

*1 Dear Counsel:The parties are before the Court on Plaintiff's Motionto Compel discovery of electronically stored information(“ESI”). I have reviewed written materials submitted byPlaintiff, heard oral argument at a hearing on January 6,2015, and have researched what little state court case lawthat exists regarding discovery of ESI. For the reasons thatfollow, I grant in part and deny in part Plaintiff's motion.

Factual Background

From November 2001 to October 2012, Pamela Fluff,the Plaintiff, was a deputy for the Roanoke CountySheriff's Office. During that time, Huff also served asan Army Reservist and deployed overseas three times,including a tour to Afghanistan in March 2010. Huffalleges that Defendant, Michael Winston, in his officialcapacity as Roanoke County Sheriff, discriminatedagainst and ultimately terminated Huff's employmentbased on her military obligations and/or the resultingphysical and mental injuries Huff claims to have sufferedin Afghanistan.

Huff claims that Captain Tayloe and MajorPoff specifically targeted her because she required

accommodation under the Uniformed ServicesEmployment and Reemployment Rights Act(“USERRA”). Huff alleges, inter alia, that she wassubjected to unwarranted Fitness for Duty Evaluations,was forced to take unpaid administrative leave, was deniedlight duty, and was ultimately fired based on her combat-related injuries and/or in retaliation for her USERRAcomplaints.

Huff filed suit against Defendant in April 2014. Theparties have engaged in written discovery, including

requests by Plaintiff for ESI from Defendant. 1

Specifically, Plaintiff has identified custodians, a timeframe, and specific Boolean search terms she wouldlike Defendant to utilize in compiling the requested ESIpertaining to Plaintiff. The specific search terms suggestedby Plaintiff are as follows:

Search 1: Pamela OR Huff;

Search 2: Pamela OR Huff & Injured OR Injury ORHealth OR Brain OR Heart Attach OR Nose OR BreakOR Broken OR Hip OR Spine OR Trauma OR IED ORImprovised Explosive Device OR Post Traumatic StressDisorder OR PTSD OR Major Depressive Disorder ORDepression OR VA Medical Center OR Veterans AffairsOR VA OR Salem VA OR Claustrophobia OR NightmaresOR Flashbacks OR Crying OR Cry OR Cried OR PanicAttack OR Disability OR Disabled OR Fitness For DutyOR Evaluation OR Fit for Duty OR Counseling ORTreatment OR Leave OR Administrative OR Grievance ORSanjay OR Vesadeva OR Susan OR Duma OR WilliamOR Tingler OR Karen OR Wilson OR Strosnider OR LightDuty OR Full Duty OR Full Time OR Full–Time OR PartTime OR Part–Time OR Short Term Disability OR LongTerm Disability OR Part Time Deputy OR DiscriminateOR Retaliate; and

Search 3: Army OR Reserves OR Deploy OR DeployedOR Deployment OR Active OR Duty OR Afghanistan ORCombat OR Tour OR USERRA OR ESGR OR EmployerSupport of Guard and Reserve OR Norwood OR Allen.

Defendant has objected that the three separate setsof Boolean search terms proposed by Plaintiff likelywill yield an unduly burdensome amount of electroniccommunication, which may not be easily retrieved orreviewed because of the electronic format in which itis stored. Defendant further argues that all or most of

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89 Va. Cir. 429


the ESI arising out of Search 2 will not pertain to thePlaintiff and is thus either not relevant and/or raisesprivacy concerns with respect to the individuals identifiedon the ESI. Finally, Defendant argues that retrieving,reviewing, compiling, and producing the ESI will create anunreasonable expense to Defendant.

Analysis

*2 There is a dearth of Virginia case law on the subjectof ESI discovery. The state court rules that address thesubject are set forth in Rule 4:1(a) (specifically approvingdiscovery of ESI), Rule 4:1(b)(1) (confirming that partiesmay conduct discovery with respect to relevant mattersor regarding matters that are reasonably calculated tolead to the discovery of admissible evidence), and 4:1(b)(7) (describing potential limitations on ESI discovery andburdens of proof in the event a party objects to discoveryof ESI).

In short, the Rules contemplate that parties may discoverESI that is relevant or reasonably calculated to lead to thediscovery of admissible evidence. The responding partymust provide the requested ESI unless the respondingparty establishes that the ESI “is not reasonably accessible

because of undue burden or cost.” 2

In evaluating this or any discovery dispute, of criticalimportance to this Court, and consistent with theRules governing discovery of ESI, is the concept ofreasonableness. Therefore, in assessing what discoverywill proceed and how it shall be paid for, the inquiries Iwill make are as follows:

1. Is the contemplated discovery reasonably calculatedto lead to the discovery of admissible evidence?

2. Is the discovery reasonably narrow in its scope?

3. If the responding party is objecting to the discoveryon the basis that it is burdensome or costly, whatis the burden to the responding party as comparedto the potentially prejudicial effect to the requestingparty if the discovery is limited or quashed?

4. After some showing by the responding partyregarding the estimated cost of production, is itmost reasonable to leave the costs associated withproduction with the responding party; or is some

shifting of costs more reasonable; or in a particularcase is it most reasonable to simply determine thatproduction costs are a taxable cost that the court canaward to the prevailing party at the conclusion of thelitigation?

5. Finally, in their dealings leading up to theirappearance in court, have the parties conferred andreasonably attempted to resolve their dispute asspecifically contemplated by Rule 4:12(a)(2)?

In this case, Defendant has not objected to Plaintiff'sdiscovery request on relevance grounds, so that inquiryneed not be addressed.

Huff seeks production of ESI from seven (7) custodians,which the Court finds under the circumstances presentedis reasonable in scope. Huff has asked for thisESI from December 1, 2009 through October 5,2012. Considering her military deployment and civilianemployment timelines, the Court finds that this timeperiod is also reasonable in scope.

With respect to the parameters of the actual search, Iam frankly confused about how Search 2 could producesuch a large number of “hits” as compared to Search 1.Specifically, Search 2 is supposed to actually limit Search1 by conjunctively adding to Search 1 a series of termsin the disjunctive. This unusual Boolean result is leftunexplained by counsel, so I am left to conclude thatthe unusual result with Search 2 must be the productof user error wherein the computer processed the seriesof terms all in the disjunctive, rather than limiting theseries of disjunctives with a conjunctive (viz., “AND”)after Plaintiff's name. Had Search 2 been completedsuccessfully as contemplated by both parties (with aconjunctive), then any and all results from Search 2would necessarily be included in Search 1. Therefore,common sense and an eye towards both simplicity andreasonableness lead me to jettison altogether the logic-

defying Search 2. 3

*3 Without Search 2 included in Plaintiff's discoveryrequest, Search 1 and Search 3 appear reasonablycalculated to lead to the discovery of admissible evidence.The parties seemingly agree with this conclusion, and theCourt concludes the same.


89 Va. Cir. 429


The parties have not specifically addressed inquiries 3 and4, although Defendant has suggested that searching eachof the seven (7) work stations would take one (1) hourat an estimated cost of $75/hour. Based on the limitedinformation before me regarding cost, I am not willing atthis time to shift any production costs from Defendant toPlaintiff.

Finally, it appears that the attorneys involved in thismatter have reasonably conferred with each other in aneffort to resolve their dispute. Therefore, I am not willingat this time to alter my ruling for or against either partybased on any failure to reasonably confer with each other.

Having found that the number of custodians, thecontemplated timeframe, and that the search criteria inSearch 1 and Search 3 are reasonable, the only remainingissues are privacy concerns as well as concerns regardingthe format of any ESI that is produced.

Defendant is justified in being concerned about producinginformation that is otherwise private and/or confidential.Nevertheless, as is done on a daily basis in courtsacross the country, I will direct that counsel enter into aprotective order regarding any ESI Defendant producesthat protects unrelated persons who might otherwise beincluded in the ESI and thus allay Defendant's concernsabout producing the ESI.

The final issue, which concerns the format of any ESIthat Defendant is to produce, is the one the Court is leastcompetent to address. While I certainly have the authorityto direct the precise manner in which discovery is to beaccomplished, it does not seem to me to be very practical—or reasonable—to dictate how ESI should be produced,particularly because I suspect that there are dozens ofways in this electronic age that the end result can beachieved.

With the above in mind, what seems to me to be mostreasonable under the circumstances is to have Defendantproduce the requested ESI in any electronic formatDefendant chooses, so long as that format is both useableand searchable.

Accordingly, I direct counsel to confer and submit anOrder consistent with this letter along the following lines:

1. At Defendant's cost, and pursuant to an appropriateprotective order, Defendant is to produce in

searchable and useable form all ESI from allrepositories of the seven (7) custodians in questionfrom December 1, 2009, through October 5,2012, utilizing search terms contained in Plaintiff'sproposed Search 1 and Search 3.

2. Defendant shall produce the ESI described in theprevious paragraph by no later than February 20,2015.

3. The protective order contemplated by my rulingshall include, at a minimum, a provision requiringthe non-disclosure and ultimate destruction of anyprivate information contained in the ESI, as well asa provision that that any and all ESI produced byDefendant shall be without waiver of any objectionthat Defendant may later assert on any grounds,including privilege.

*4 Counsel will quickly discern that this letter and theassociated “rulings” do not address every conceivableruling that might be necessary to accomplish the discoveryas contemplated by Plaintiff. For example, beyond whatI have stated, I am not presently making any rulingregarding the contents of the protective order.

My purposefully limited rulings stem from the realitythat ESI matters are inherently complex, involvingmultifaceted and ever-changing technology, whichnecessarily requires communication and compromisebetween counsel in the event of a dispute. With thisreality in mind, the Court would be foolish to think itcan identify and address every conceivable discovery issue,ESI or otherwise. Thus, I both contemplate and expectthat counsel will confer with one another to shore upany remaining details in order to comply with my rulings,supra.

Last, I deny Plaintiff's request for attorney's fees inconnection with her Motion. I do not feel that Defendantor his counsel have been unreasonable and/or acted inbad faith-to date. Going forward, however, I will notbe so dismissive of a request for attorney's fees fromeither party arising out of a discovery dispute—ESI orotherwise-particularly if I conclude that either party hasnot conducted himself, herself, or itself reasonably and ingood faith regarding a resolution of any future issues thatmay arise.


89 Va. Cir. 429


Conclusion

Plaintiff's Motion to Compel, as outlined above, is grantedin part and denied in part. Consistent with the attachedsubmission Order, I generally expect agreed-upon ordersto be submitted within seven (7) days. Given the uniquenature of this situation, I expect an agreed Order fromMr. Strelka by January 27. If counsel are unable to submit

an agreed Order, then each counsel shall submit theirrespective Orders by January 30.

Very truly yours,

David B. Carson

All Citations

Not Reported in S.E.2d, 89 Va. Cir. 429, 2015 WL6395702

Footnotes1 The ESI—to the extent relevant ESI exists-was apparently created and ultimately stored on a Roanoke County computer

system, which was (and is) utilized by the Sheriff's Office. Defendant argues that Roanoke County is separate from theRoanoke County Sheriff's Office and Defendant thus should not be required to produce ESI from this “third party.” If thiswere a true third party situation in which both Plaintiff and Defendant were on equal footing with respect to access to theESI source(s), then I would be inclined to agree with Defendant. However, under the circumstances, I do not view thisas a true third party situation and thus reject Defendant's argument.

2 Va. Sup.Ct. R. 4:1(b)(7)

3 This ruling also implies that the Court would find Search 2 unreasonable in scope had it not included the conjunctive“AND” where it did.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

IN RE: LUMBER LIQUIDATORS CHINESE-MANUFACTURED FLOORING PRODUCTS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION

MDL No. l:15-md-02627 (AJT/TRJ)

This Document Relates to ALL Cases

STIPULATED ORDER ESTABLISHING

ELECTRONIC DISCOVERY PROTOCOL

I. SCOPE

Pursuant to Fed. R. Civ. P. 16, Fed. R. Civ. P. 26(f) and the Court’s Pretrial Order #1

(Doc. No. 10), the parties have conferred regarding matters affecting the discovery of

electronically stored information (“ESI” or “E-discovery”) and agreed on the following

procedures regarding the production of ESI in this case, which the Court finds appropriate.

This protocol shall apply to all cases currently pending in MDL No. 2627 and to all

related actions that have been or will be originally filed in, transferred to, or removed to this

Court and consolidated as part of MDL No. 2627. Nothing herein shall enlarge or affect the

proper scope of discovery in the MDL, nor shall anything herein imply that any documents or

ESI collected or produced under the terms of this protocol are properly discoverable, relevant, or

admissible in these actions or in any other litigation.

II. DEFINITIONS

A. “Electronically stored information” or “ESI,” as used herein, has the same

meaning as contemplated by the Federal Rules of Civil Procedure.

B. “Native data format” means and refers to the format of ESI in which it was

Case 1:15-md-02627-AJT-TRJ Document 618 Filed 10/20/15 Page 1 of 22 PageID# 2823

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originally generated and/or normally kept by the producing party in the usual course of its

business and in its regularly conducted activities.

C. “Metadata” means and refers to information about information or data about

data, and includes without limitation (i) information embedded in or associated with a native file

that is not ordinarily viewable or printable from the application that generated, edited, or

modified such native file which describes the characteristics, origins, usage and/or validity of the

electronic file and/or (ii) information generated automatically by the operation of a computer or

other information technology system when a native file is created, modified, transmitted, deleted

or otherwise manipulated by a user of such system.

D. “Static Image” refers to a representation of ESI produced by converting a native

file into standard image format capable of being viewed and printed on standard computer

systems.

E. “Documents” has the meaning contemplated in the Federal Rules of Civil

Procedure.

F. “Media” means an object or device, real or virtualized, including but not limited

to a disc, tape, computer or other device, on which data is or was stored.

G. "Substantial Completion," which cannot be defined precisely in advance, shall

be the subject of good faith discussions as discovery proceeds, and any dispute shall be presented

forthwith to the Magistrate Judge in a joint brief.

III. SEARCH TERMS

The parties will cooperate regarding the disclosure and formulation of appropriate search

terms and protocols for use in the review and production of ESI.


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A. Disclosure of records custodians and relevant systems.

1. Defendant’s Disclosures:

Defendant will disclose to Plaintiffs: a) a list of the most likely custodians of relevant

documents and/or ESI, including a personnel chart showing the department in which each

custodian worked and each person’s title, if any; b) a list of the most likely relevant databases, if

any, likely to contain documents or ESI, including a brief description of the database; and c) a

list of any potential relevant source of documents or ESI that the disclosing party believes is not

reasonably accessible, including a brief description of the source and the reason it believes the

data is not reasonably accessible.

B. Defendant’s initial search terms, including semantic synonyms and record custodians.

Plaintiffs will provide a list of search terms they believe are most likely to capture

relevant information to be run on agreed collections of ESI. Within five business days of receipt

of the list of search terms, and based on currently known information, Defendant will disclose

any known semantic synonyms to the requested search terms. Semantic synonyms shall mean

without limitation code words, terms, phrases or illustrations, acronyms, abbreviations, or non-

language alphanumeric associational references to relevant ESI, or information that may lead to

relevant ESI. Plaintiffs also will designate the records custodians of Defendant from which

Plaintiffs want ESI. Plaintiffs’ initial designation shall not exceed 15 records custodians.

C. Formulation and testing of search terms on Defendant’s ESI.

1. After agreement between the parties on an initial set of terms to test and

agreement on the initial set of records custodians, the Defendant will run the search terms against

the agreed upon collection of ESI from the designated records custodians and generate a

preliminary report that identifies the total numbers of records searched, and the total number of


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responsive records (i) for the combined list of search terms, and (ii) for each search term

individually.

2. If necessary, the parties will meet and confer to revise the search terms in

order to avoid an unduly burdensome production or retrieving a high number of non-responsive

ESI. No later than one week after Defendant provides Plaintiffs with the search term report

described above Plaintiffs will provide Defendant a revised list of search terms.

3. Defendant will run the revised search terms against the ESI collected for

the designated records custodians and produce the responsive, non-privileged material on a

rolling basis in accordance with the Court’s scheduling order.

D. Additional custodians and search terms.

No later than than (a) December 4, 2015 as to defendant's production in response to lead

plaintiffs' first requests for production, and (b) 14 days after Defendant substantially completes

production of other ESI contemplated above, Plaintiffs will provide (i) the identities of up to 10

additional custodians or distinct sources (not to include servers); and (ii) an agreed-to number of

additional search terms. Defendant will run, subject to objection, both the initial and the

supplemental search terms against the ESI collected for all designated custodians/sources and

produce any additional responsive, non-privileged materials in 30 days in accordance with Fed.

R. Civ. P. 34. Defendant’s agreement to search for and produce additional information from

custodians designated pursuant to Section III.B or from newly designated custodians shall not

constitute agreement for any re-deposition of witnesses previously deposed in this litigation.

Any disputes over additional custodians or terms pursuant to this paragraph shall, after meet and

confer, be presented to the Magistrate Judge in a joint brief within ten days after notification by

Defendant to Plaintiff of its objection to the search term or custodian.


- 5 -

The parties will continue to meet and confer regarding any search process issues as

necessary and appropriate. This ESI protocol does not address or resolve any other objection to

the scope of the parties’ respective discovery requests.

E. ESI Production From Plaintiffs

Defendant will provide to Plaintiffs a list of not more than twenty search terms they

believe are most likely to capture relevant information to be used to collect ESI. If necessary,

the parties will meet and confer to revise the search terms in order to avoid an unduly

burdensome collection or production.

IV. FORMAT OF PRODUCTION

A. Document Image Format.

Per Lumber Liquidators’ request, the parties will produce Documents and ESI in Tagged

Image File Format (“TIFF”) subject to Sections IV.B and IV.C below. For documents that do

not contain redactions, the producing party will produce an extracted text (.TXT) file containing

searchable text for each electronic document and an Optical Character Recognition (“OCR”) text

file for each imaged paper document along with image load files. For documents that contain

redactions, the producing party will provide an OCR text file for the unredacted portions of such

documents. Every TIFF file in each production must be referenced in the production’s

corresponding load file. The total number of TIFF files referenced in a production’s load file

should match the number of TIFF files in the production. Metadata load files should contain, if

available, the non-privileged metadata in Appendix A. The parties are not obligated to populate

manually the fields in Appendix A that cannot be extracted from a document, with the exception

of the CUSTODIAN, and TIMEZONEPROCESSED, which shall be populated by the producing

party. Load files of the static images should be created and produced together with their


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associated static images to facilitate the use of the produced images by a document management

or litigation support database system.

B. Production of Excel, PowerPoint, MS Access and MS Project Files.

Unless such materials contain privileged or redacted information, Excel, PowerPoint, and

Project Files will be produced in native format. If PowerPoint, MS Access, or MS Project files,

however, contain privileged or redacted information, they need not be produced in native format

but shall be produced with the extracted text and metadata fields set forth in this Order, except to

the extent the extracted text or metadata fields are themselves redacted. Excel Files that contain

privileged information should be produced as an Excel file in a manner that does not prevent

Excel functions from performing, but with privileged information redacted.

C. Production of Structured Data.

To the extent a response to discovery requires production of discoverable electronic

information contained in a database, in lieu of producing the database, the parties shall meet and

confer to seek to agree upon a set of queries to be made for discoverable information and

generate a report in a usable and exportable electronic file (e.g., Excel or CSV format) for review

by the requesting party or counsel. Upon review of the report(s), the requesting party may make

reasonable requests for additional information to explain the database schema, codes, and

formats or to request specific data from identified fields.

If a producing party asserts that certain requested ESI is inaccessible or otherwise

unnecessary under the circumstances, or if the requesting party asserts that, following

production, certain ESI is not reasonably usable, the parties shall meet and confer to discuss

resolving such assertions. If the parties cannot resolve any such disputes after such a meet and

confer has taken place, the issue shall be presented to the Court for resolution.


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D. Document Unitization and Load Files.

For files not produced in their native format, each page of a document shall be

electronically saved as an image file. If a document consists of more than one page, the

unitization of the document and any attachments and/or affixed notes shall be maintained as it

existed in the original when creating the image files.

The producing party shall produce a unitization file (“load file”) for all produced

Documents in accordance with the following formatting, including a separate load file for native

Documents:

Document Unitization Load File:

• Document productions should include Concordance document load files.

• Document Image productions and Native Document productions shall receive separate load files.

• Metadata provided in a delimited file as described below under the subheading of “Metadata Load File.”

OCR and Extracted Text Load File:

In addition to the document load file, where applicable, a separate load file will be included for the purposes of loading the OCR or Extracted text of the document into the electronic review platform. This load file will be in the following format: • Every row must have 2 columns/fields

• First column/field must contain the BATES number for the document

• Second column/field must contain the relative path and file name of the TXT file (for example \\VOL001\001\ABC001.txt)

• Text must be encoded in ascii, except where documents contain characters requiring UTF-8 in order to be read. Such documents shall be produced in UTF-8 format.

• Values must be enclosed by double quotes (ascii character 34)

• Values must be separated by a comma (ascii character 44)


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OCR and Extracted Text Files (.TXT Files):

• Single text file per document containing all the document's pages

• Pages separated by form feed character (decimal 12, hex 0xC)

• Filenames should be of the form: <Bates num>.txt Where <Bates num> is the BATES number of the first page in the document.

• Text must be encoded in ascii, except where documents contain characters requiring UTF-8 in order to be read. Such documents shall be produced in UTF-8 format.

Images Files:

• Single page per image

• Single image per file

• TIFF is default FORMAT unless the following formats are agreed to: jpeg, jpeg2000, giff, png, single image tiff, and bmp

• Filenames should be of the form: <Bates num>.<ext> Where <Bates num> is the BATES number of the page, and <ext> is the appropriate extension for the image format (.jpg, .tif, .png, etc)

Metadata Load Files:

• Comma Separated Value (.CSV) files (commonly .DAT files)

• First line must contain the column/field names

• Every row must have the same number of columns/fields (empty values are acceptable)

• Text must be encoded in ascii

• Values must be enclosed by ascii character 254

• Multiple entries in a field must be separated by ascii character 174

• New line value in data must be indicated by ascii character 059

• Values must be separated by ascii character 020


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E. Duplicates.

Where a producing party has more than one identical copy of an electronic document

(i.e., the documents are exact duplicates as that term is used in the electronic discovery field), the

producing party need only produce a single copy of that document (as long as all family

relationships are maintained). A party may de-duplicate ESI across each party’s custodians or

sources, but if that option is exercised, the producing party must identify each custodian or

source where the document was located in a coding field. De-duplication will be based on MD5

hash values.

F. E-Mail Thread Analysis.

Email thread analysis may be used to reduce the volume of e-mails reviewed and

produced, provided that the parties disclose such use. The produced e-mails must include all of

the responsive information from a thread, including attachments.

G. System and Program Files.

System and program files defined on the NIST list need not be processed, reviewed or

produced. Additional files may be added to the list of excluded files by mutual agreement of the

parties.

H. Color.

For files not produced in their native format, if an original document contains color, the

producing party may produce black and white image(s). At the request of the receiving party,

the parties shall meet and confer regarding production of color image(s) for specific documents.

I. Bates Numbering.

1. Document Images. Each page of a produced Document shall have a

unique page identifier (“Bates Number”) electronically “burned” onto the image at a location


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that does not unreasonably conceal, or interfere with any information from the source document.

Any confidentiality legend shall be “burned” onto each document’s image at a location that does

not unreasonably obscure any information from the source document. Redacted documents will

be so identified by electronically “burning” the legend “Redacted” onto each document’s image

at a location that does not unreasonably obscure any information from the source document.

2. Native Format Documents. Documents produced in Native Format will be

produced with a placeholder TIFF image. Each TIFF placeholder will contain the Bates number

and confidentiality designation, if any.

J. Production Media.

Documents shall be produced by FTP site or on CD-ROM, DVD, external hard drive

(with standard PC compatible interface), or such other readily accessible computer or electronic

media as the parties may hereafter agree upon (the “Production Media”). Each item of

Production Media shall include: (1) text referencing that it was produced in this MDL, (2)

production date, and (3) the Bates range contained on such Production Media item.

K. Attachments.

Email attachments and embedded files or links must be mapped to their parent by the

Document or Production number. If attachments and embedded files are combined with their

parent documents, then “BeginAttach” and “EndAttach” fields listing the unique beginning and

end number for each attachment or embedded document must be included.

L. Embedded Objects.

Objects embedded in Microsoft Word and .RTF documents, which have been embedded

with the “Display as Icon” feature, will be extracted as separate documents and treated like


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attachments to the document. Other objects embedded in documents shall be produced as native

files.

M. Compressed Files.

Compression file types (i.e., .CAB, .GZ, .TAR, .Z, .ZIP) shall be decompressed in a

reiterative manner to ensure that a zip within a zip is decompressed into the lowest possible

compression resulting in individual folders and/or files.

V. OBJECTIONS TO ESI PRODUCTION

A. Documents that present imaging or format production problems shall be promptly

identified and disclosed to the requesting party; the parties shall then meet and confer to attempt

to resolve the problems.

B. If either party objects to producing the requested information on the grounds that

such information or production in the requested format is not reasonably accessible because of

undue burden or cost, before asserting such an objection, the responding party will inform the

requesting party of the format, if at all, in which it is willing to produce it, the nature and location

of the information claimed to not be reasonably accessible, the reason(s) the requested form of

production would impose an undue burden or cost, and afford the requesting party 10 business

days from receipt of such notice to propose an alternative means of production. Notwithstanding

anything contained herein to the contrary, a producing party shall not produce ESI in a format

not requested or designated by the requesting party (i) unless the parties have met and conferred,

and, having been unable to resolve such format production conflict at such meet and confer

session, (ii) prior to referral to and resolution of such issue by the court.


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VI. PRIVILEGE AND WORK PRODUCT CLAIMS

A. Privilege Log Format and Timing.

Any non-automated privilege log shall include Bates document number (or document

identification), date of the document, author(s), recipient(s), the subject of the document, a

description of the document, and an explanation of privilege(s) being asserted with respect to the

document. Any automatic privilege logs under Section VI.B. below shall be produced within 5

business days of the date when particular privileged documents would have been available for

production. Any non-automated privilege logs shall be produced within 20 days of a party’s

substantial completion of its production of documents in response to a Rule 34 request or set of

requests.

B. In-House Counsel or Outside Counsel.

Lumber Liquidators may use the following protocol to isolate and log electronic

documents and their attachments involving in-house counsel whose primary role at the company

is legal, or outside counsel retained by the company, provided that it (i) takes reasonable effort to

ensure that automatically-generated messages in counsel communications (such as disclaimers

automatically inserted as email footers) will not cause the filter to screen communications on the

basis that the search terms listed in Section VI.B.(2) appear only in the automatically generated

language, and (ii) discloses in advance to the Plaintiffs the efforts to be used, including

disclosing any additional search terms to be applied in order to identify counsel communications

containing automatically generated language that includes one or more of the terms listed at

Section VI.B.(2):

(1) Lumber Liquidators will disclose to the receiving party the names and full

business titles of in-house counsel whose primary role at the company is legal.


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(2) The following search terms will be applied to ESI in which one or more

names of counsel appear anywhere in the document, including associated metadata, to isolate

potentially privileged communications:

a) defense strategy

b) joint defense

c) work product

d) work-product

e) attorney /3 client

f) advice /5 (counsel or lawyer* or attorney*)

g) affidavit*

h) deposition*

i) privilege*

j) lawsuit*

k) litigation*

l) MDL

m) class /2 action*

n) pleading*

o) allegation*

p) DOJ

q) subpoena*

r) attorney* general*

s) plaintiff*


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Lumber Liquidators may use other terms in addition to the terms listed in this section

subject to prior notice and written agreement with Plaintiffs.

(3) A log of the documents resulting from the electronic privilege search will

be generated from the following metadata fields to the extent they exist as electronic metadata

associated with the original electronic documents, and Lumber Liquidators shall produce such

logs to Plaintiffs:

a) MSFILE_AUTHOR

b) MSFILE_CREATION TIME

c) MSFILE_SUBJECT

d) OL/LN_SENDERNAME

e) OL/LN_RECIPIENTS

f) OL/LN_CC

g) OL/LN_BCC

h) OL/LN_SUBJECT

i) OL/LN_SENT

j) OL/LN_RECEIVEDTIME

(4) With respect to the MDFILE_SUBJECT or OL_SUBJECT field, the

parties may substitute a description of the communication where the content of these fields may

reveal privileged information.

(5) The documents identified from the above-described automated search

need not be reviewed before being logged and withheld from production, or at any time

thereafter except as required by Subsections (6) and (7) below.


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(6) After production of each automated log, Lumber Liquidators will

immediately review the following two categories of documents that were deemed privileged or

work product on an automated basis to manually determine whether such documents are indeed

protected from disclosure by privilege or work product: (a) documents in which an attorney is

not the author or direct recipient of the document (e.g., does not appear on the “To” or “From”

field in an e-mail); and (b) documents addressed in Section VI.B.(8) below. Lumber Liquidators

will produce any documents for which it withdraws any automated protection within 20 days of

the relevant automated privilege log.

(7) Should the Plaintiffs in good faith have reason to believe a particular entry

on the metadata-generated log does not reflect a privileged document, Plaintiffs may request and

Lumber Liquidators will generate a privilege log for that entry to be produced within one week

of the request.

(8) Where a document has been sent, received, or otherwise distributed to a

person who is not counsel for, or an employee of Defendant, Lumber Liquidators shall identify

each such person with enough information to allow Plaintiffs to assess whether disclosure of the

document constitutes waiver of the privilege asserted.

C. Clawback.

The production of documents (including both paper documents and electronically stored

information) subject to protection by the attorney-client privilege and/or protected by the work-

product, joint defense or other similar doctrine, or by another legal privilege protecting

information from discovery, shall not constitute a waiver of any privilege or other protection,

provided that the producing party notifies the receiving party, in writing, of the production after

its discovery of the same.


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(1) If the producing party notifies the receiving party after discovery that

privileged materials (hereinafter referred to as the “Identified Materials”) have been produced,

the Identified Materials and all copies of those materials shall be returned to the producing party

or destroyed or deleted, on request of the producing party. If the receiving party has any notes or

other work product reflecting the contents of the Identified Materials, the receiving party will not

review or use those materials unless the court later designates the Identified Materials as not

privileged or protected.

(2) The Identified Materials shall be deleted from any systems used to house

the documents, including document review databases, e-rooms and any other location that stores

the documents. The receiving party may make no use of the Identified Materials during any

aspect of this matter or any other matter, including in depositions or at trial, unless the

documents are later designated by a court as not privileged or protected.

(3) The contents of the Identified Materials shall not be disclosed to anyone

who was not already aware of the contents of them before the notice was made.

(4) If any receiving party is in receipt of a document from a producing party,

which the receiving party has reason to believe is privileged, the receiving party shall in good

faith take reasonable steps to promptly notify the producing party of the production of that

document so that the producing party may make a determination of whether it wishes to have the

documents returned or destroyed pursuant to this Order.

(5) The party returning the Identified Materials may move the Court for an

order compelling production of some or all of the material returned or destroyed, but the basis

for such a motion may not be the fact or circumstances of the production.


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(6) The parties agree that this Order is an Order entered under Rule 502(d) of

the Federal Rules of Evidence and thus the disclosure of Inadvertent Materials is not a waiver of

the privilege in any other federal or state proceeding.

(7) This agreement does not constitute a concession by any party that any

documents are subject to protection by the attorney-client privilege, the work product doctrine or

any other potentially applicable privilege or doctrine. This agreement also is not intended to

waive or limit in any way either party’s right to contest any privilege claims that may be asserted

with respect to any of the documents produced except to the extent stated in the agreement.

VII. LIMITED 28 U.S.C. § 1920 WAIVER

In consideration of this Protocol, the parties waive any claim under 28 U.S.C. § 1920

for the reimbursement of any and all costs incurred for converting near-native documents to

TIFF format. Without waiver of and with all parties retaining their right to argue whether such

costs should be taxable, the parties also agree that any and all costs incurred for converting

native files into near-native format be capped at $150 per gigabyte of data should the Court

determine that costs incurred for converting native files into near-native format are taxable.

Nothing herein constitutes an acknowledgement (implicit or otherwise) by any party that ESI-

related costs are taxable under 28 U.S.C. § 1920.

VIII. MISCELLANEOUS

A. This Order is not intended to govern any protections or restrictions related to the

production of privileged litigation material which are separately addressed in an agreed

Confidentiality Order.


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B. Any documents recalled due to this Order’s clawback provision shall have a

specific protocol followed to ensure all copies of each such document are appropriately removed

from the review system of the opposite party as set forth in Section VI.C.(2) above.

C. In the event of individual issues that arise with regard to the identification and

production of ESI and ESI-related information, as set forth in this Order, any practice or

procedure provided for herein as to such identification and/or production may be varied by

written agreement of the parties where such variance is deemed appropriate to facilitate the

timely and economical exchange of documents, ESI or ESI-related information. The parties

shall meet and confer in the event of any dispute over the need for or nature of such variance in

practice or procedure, in an effort to reach agreement prior to informing the Court of any

unresolved issues.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD

DATED: October 8, 2015 /s/ Steven W. Berman Steve W. Berman (Pro Hac Vice) E-mail: [email protected] Ari Brown (Pro Hac Vice) E-mail: [email protected] Hagens Berman Sobol Shapiro LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 206.623.7292 (Telephone) Plaintiffs’ Co-Lead Counsel

DATED: October 8, 2015 /s/ Nancy Fineman Nancy Fineman (Pro Hac Vice) E-mail: [email protected] Matthew K. Edling (Pro Hac Vice) E-mail: [email protected] Cotchett, Pitre & McCarthy, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 650.697.6000 (Telephone)


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Plaintiffs’ Co-Lead Counsel

DATED: October 8, 2015 /s/ Steven J. Toll Steven J. Toll (VSB No. 15300) E-mail: [email protected] Douglas J. McNamara (Pro Hac Vice) E-mail: [email protected] Cohen Milstein Sellers & Toll, PLLC 1100 New York Ave NW, Suite 500 Washington, DC 20005 202.408.4600 (Telephone) Plaintiffs’ Co-Lead Counsel

DATED: October 8, 2015 /s/ Diane P. Flannery Diane P. Flannery (VSB# 85286) E-mail: [email protected] McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219-3916 804.775.1015 (Telephone) Defendant’s Co-Lead Counsel

DATED: October 8, 2015 /s/ William L. Stern William L. Stern (CSB# 96105) E-mail: [email protected] Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 415.268.7637 (Telephone) Defendant’s Co-Lead Counsel

PURSUANT TO STIPULATION, AND THE COURT FINDING IT APPROPRIATE, IT IS SO ORDERED.

October 20, 2015 _________________/s/________________ Alexandria, Virginia THOMAS RAWLES JONES, JR.

United States Magistrate Judge


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APPENDIX A

FIELD

FIELD NAME DEFINITION DOC TYPE

1 SOURCE SOURCE Name of the party producing the document/data

ALL

2 CUSTODIAN OR NON-

CUSTODIAL SOURCE

CUSTODAN Name of the person from whose files the document/data is being produced or name of data source location if not associated with single custodian

ALL

3 BEGINBATES BEGBATES Beginning Bates Number (production number)

ALL

4 ENDBATES ENDBATES Ending Bates Number (production number) ALL 5 FILEPATH FILEPTH File source path for all electronically

collected documents which includes location, folder name, any subfolder names, file name, and file source extension (FILEPATH to be produced only where available)

ALL

6 NATIVELINK NATILINK Field containing link to native file ALL 7 TEXTPATH TEXTPTH File path for OCR or Extracted Text files ALL 8 FROM FROM Sender EMAIL 9 TO TO Recipient EMAIL 10 CC CC Additional Recipients EMAIL 11 BCC BCC Blind Additional Recipients EMAIL 12 SUBJECT SUBJECT Subject line of Email EMAIL 13 PARENTBATES PARENTID BeginBates number for the parent email of a

family (will not be populated for documents that are not part of a family)

EMAIL

14 BEGATTACH BEGATTCH First Bates number of a family range (i.e., Bates number of the first page of the parent email)

EMAIL

15 ENDATTACH ENDATTCH Last Bates number of a family range (i.e., Bates number of the last page of the last attachment)

EMAIL

16 DATESENT (mm/dd/yyyy)

DATESENT Date sent EMAIL

17 DOCTYPE DOCTYPE Document type (e.g., .doc, .pst, .ppt, .xls, .pdf)

EDOCS

18 AUTHOR AUTHOR Creator of document EDOCS 19 MD5HASH MD5HASH MD5 hash value of document EDOCs


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CERTIFICATE OF SERVICE

I hereby certify that on October 8, 2015, a true and correct copy of the foregoing was

filed electronically with the Clerk of this Court using the CM/ECF system, in accordance with

the Local Rules and the procedures adopted in the Initial Order and Pretrial Order No. 1A. This

filing will cause a copy of the same to be served, via a Notice of Electronic Filing, upon counsel

of record who have consented to electronic service in this matter. Additionally, a true and

correct copy of the foregoing was served by U.S. Mail on the following:

Berg v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2716 Richard A. Maniskas Schiffrin & Barroway, LLP 280 King of Prussia Road Radnor, PA 19087 Brown v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2659 Warren T. Burns Daniel H. Charest Burns Charest LLP 500 N. Akard, Suite 2810 Dallas, TX 75201

Korey A. Nelson Elizabeth A. Roché Burns Charest LLP 365 Canal Street, Suite 1170 New Orleans, LA 70130

Doss v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2711 Thomas B. Malone The Malone Firm, LLC 1650 Arch Street, Suite 1903 Philadelphia, PA 19103 Guest v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2717 Anthony J. Bolognese Bolognese & Associates LLC 1617 JFK Boulevard, Suite 650 Philadelphia, PA 19103

Nicholas J. Guiliano The Guiliano Law Firm, P.C. 230 South Broad Street, Suite 601 Philadelphia, PA 19102


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Jacek v. Lumber Liquidators, No. 1:15-cv-3985 Michael R. Reese Milberg Weiss Bershad & Schulman LLP 1 Pennsylvania Plaza New York, NY 10119-0165 Karriem v. Lumber Liquidators, Inc., No. 1:15-cv-2765

Elijah Karriem (pro se) 1404 Asbury Court Hyattsville, Maryland 20782 Loup v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2733

Fernando Paladino (pro se) 2302 Justin Lane Harvey, LA 70058 Parnella v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2736

Cary L. McDougal Baron & Budd, PC - Dallas 3102 Oak Lawn Ave Suite 1100 Dallas, TX 75219 Smith v. Lumber Liquidators, Inc. et al., No. 1:15-cv-2693

Richard Dorman Walker Badham Badham & Buck LLC 2001 Park Place North, Ste. 500 Birmingham, AL 35203-274

/s/ Steve W. Berman Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP
