electronic discovery – milestones and issues for 2013 · 2013. 10. 31. · • during phase two,...

Electronic Discovery – Milestones and Issues for 2013

Update on 7th Circuit Pilot Program

Steven W. Teppler, Esq. Abbott Law Group P.A. Jacksonville, FL

COALSP Conference 2013-10-10

The 7th Circuit Pilot Progam – Phase Two (May 2010-May 2012)

•  Two year period to permit more expansive evaluation of program metrics"

•  Committee had expanded from 50 to more than 150 advisors and experts , comprised of members from within and from 21 states outside the 7th Circuit"

•  40 judges, 296 cases"

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The 7th Circuit Pilot Progam – Phase Two (May 2010-May 2012)

•  Criminal Discovery Subcommittee created"•  Evaluation survey sent out in March 2012, and

more than six thousand attorneys all seven districts of the 7th Circuit responded"

•  Results of Phases One and Two are available at www.discoverypilot.com"

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Phase Two Takeaways – Judicial Recognition of Liasion Importance

•  In both Phase One and Phase Two Judge Surveys, 100% of the responding judges who had cases involving e-discovery liaisons agreed or strongly agreed that "

[t]he involvement of e-discovery liaison(s) ha[d] contributed to a more efficient discovery process.!

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Phase Two Takeaways (cont’d.)

•  All of the responding judges felt that the Principles increased or did not affect the lawyers"–  levels of cooperation to efficiently resolve the case "–  likelihood of reaching agreements on procedures to

handle inadvertent disclosures "–  meaningful attempts to resolve discovery disputes

without court intervention"–  promptness in bringing unresolved disputes to the

court, and"–  the parties ability to obtain relevant documents"

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•  Phase One and Two"–  More than 95% of attorneys responded that the

Priniciples had no effect or increased their ability to zealously represent clients"

–  55% of attorneys responded the Prinicples had no effect on the fairness of e-discovery, and "

–  more than 40% of attorney responded that the Principles increased or greatly increased fairness and the parties ability to obtain relevant documents"

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•  Both the Phase One and Phase Two survey results show that in those cases in which the Principles had a perceived effect, those effects were overwhelmingly positive with respect to assisting attorneys cooperation and enhancing their ability "–  to resolve disputes amicably "–  to obtain relevant documents "–  to zealously represent their clients "

•  And, providing fairness to the process. "

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•  During Phase Two, the Pilot Program included judges from other districts within the Seventh Circuit. "–  A total of 40 judges, including17 district judges, 21

magistrate judges, and two (2) bankruptcy judges, participated in Phase Two. "

•  The number of cases in the Pilot Program more than tripled, to 296 cases. The number of attorneys listed as lead counsel in those cases also nearly tripled, to 787."

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•  Attorneys reported that the Principles: "–  improved their ability to resolve disputes without court

involvement in 35% of the cases, and decreased it in four percent 4%"

–  increased the fairness of the e-discovery process in 40% of the cases, and decreased it in 5%"

–  increased their ability to obtain relevant documents in 28% of the cases, and decreased it in 2%"

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•  The Judges Agreed"–  78% reported improved cooperation, 22% greatly, and

none reported decreased cooperation "–  75% reported that the Principles increased or greatly

increased the fairness of the e-discovery process 19% greatly and none observed decreased fairness"

–  66% reported that the Principles increased ability to obtain relevant documents and none felt access was diminished "

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Phase Three Principles – In Process

"Proposed Model Discovery Plan"

Proposed Model Case Management Order"Proposed Model Standing Order"

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•  Principle 1.01 (Purpose)"–  The purpose of these Principles is to assist courts in

the administration of Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention."

–  Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and as technology advances"

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•  Principle 1.02 (Cooperation"–  An attorney’s zealous representation of a client is not

compromised by conducting discovery in a cooperative manner. "

–  The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions."

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•  Principle 1.03 (Discovery Proportionality)"–  The proportionality standard set forth in Fed. R. Civ.

P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan"

–  To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable"

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•  Principle 2.01 (Duty to Meet and Confer)"–  (a) Prior to the initial status conference with the Court,

counsel shall meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles to their specific case. Among the issues to be discussed are:"

•  (1) the identification of relevant and discoverable ESI and documents, including methods for identifying an initial subset of sources of ESI and documents that are most likely to contain the relevant and discoverable information as well as methodologies for culling the relevant and discoverable ESI and documents from that initial subset (see Principle 2.05); "

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•  Principle 2.01 (Duty to Meet and Confer)"–  (2) the scope of discoverable ESI and documents to

be preserved by the parties;"–  (3) the formats for preservation and production of ESI

and documents;"–  (4) the potential for conducting discovery in phases or

stages as a method for reducing costs and burden;"–  (5) the potential need for a protective order and any

procedures to which the parties might agree for handling inadvertent production of privileged information and other privilege waiver issues pursuant to Rule 502(d) or (e) of the Federal Rules of Evidence."

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•  Principle 2.01 (Duty to Meet and Confer)"–  (b) Disputes regarding ESI that counsel for the parties are

unable to resolve shall be presented to the Court at the initial status conference, Fed. R. Civ. P. Rule 16(b) Scheduling Conference, or as soon as possible thereafter."

–  (c) The attorneys for each party shall review and understand how their client’s data is stored and retrieved before the meet and confer discussions in order to determine what issues must be addressed during the meet and confer discussions."

–  (d) If the Court determines that any counsel or party in a case has failed to cooperate and participate in the meet and confer process or is impeding the purpose of these Principles, the Court may require additional discussions prior to the commencement of discovery, and may impose sanctions, if appropriate"

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Phase Three Principles – In Process The Importance of the e-Discovery Liaison

•  Principle 2.02 (E-Discovery Liaison(s))"

–  In most cases, the meet and confer process will be aided by participation of an e-discovery liaison(s) as defined in this Principle. In the event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as e-discovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. "

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•  Principle 2.02 (E-Discovery Liaison(s))"–  Regardless of whether the e-discovery liaison(s) is an

attorney (in-house or outside counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:"

•  (a) be prepared to participate in e-discovery dispute resolution;"

•  (b) be knowledgeable about the party’s e-discovery efforts;"

•  (c) be, or have reasonable access to those who are, familiar with the party’s electronic systems and capabilities in order to explain those systems and answer relevant questions; "

And…"

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•  Principle 2.02 (E-Discovery Liaison(s))"

–  (d) be, or have reasonable access to those who are knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology."

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Electronic Discovery – The New (Old) Frontier

•  December 2006 Amendments to the Federal Rules of Civil Procedure expressly permit enhanced discovery of electronically stored information (“ESI”)"

So, what is ESI?"

We May…Finally, Have a Defintion of Electronically Stored Information

•  ISO/IEC 27050 Guidance Standard (in process) on Electronic Discovery:"–  Data or information of any kind and from any source, whose

temporal existence is evidenced by being stored in or on any electronic medium"

•  Note 1 to entry: ESI includes traditional e-mail, memos, letters, spreadsheets, databases, office documents, presentations and other electronic formats commonly found on a computer. ESI also includes system, application and file associated metadata such as timestamps, revision history, file type, etc."

•  Note 2 to entry: Electronic medium can take the form of, but is not limited to, storage devices and storage elements. http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=63081"

!

•  Nowhere otherwise defined in case law or statute"

Early Stage e-Discovery Meet and Confers

Not…and definitely not without a liaison

Advantages Offered by e-Discovery Liaisons in Meet and Confers

•  It can be a “free” and informative deposition delving into "–  Your adversary’s electronically stored information"–  In what format that information is ordinarily

maintained"–  How that information is mis-managed"–  Information about ESI retention, storage, and

disposition"–  Early identification of key players (data custodians)

and witnesses for ESI focused depositions"–  Powerful pre-certification class action discovery tool"

Fed.R.Civ.P. Rule 26 and 34 How e-Discovery Liaisons Assist

•  Assert, or counter assertions of accessibility, burden and cost

•  Address proportionality issues

•  Assert or counter format production designations in advance of propounding discovery

Fed.R.Civ.P. Rule 26 and 34 How e-Discovery Liaisons Assist

•  Negotiating the ESI Discovery Protocol

•  Negotiating a Stipulated Protective Order

•  Negotiating Preservation Obligations of the Parties

•  Custodians, Preservation Format, etc.

Fed.R.Civ.P. Rule 26(f)(3) Counsel Meet and Confers

Think it’s easy?

Think again…

A Fed.R. Civ.P. 26(f) eDiscovery Meet and Confer Request (I)

•  Keeping in mind Defendant’s preservation duties, and when this matter advances to the formal discovery mode, Plaintiff intends that the first Fed.R.Civ.P. Rule 26(f) meet and confer between counsel and other necessary persons will address the nature and context of the eDiscovery Plaintiffs will seek. To that end, we will have present and participating at this conference (and any subsequent conference, where necessary) a technology expert to assist in this process. We also intend to discuss the nature, form and format for ESI that will be produced by Defendant in connection with its Fed. R. Civ. P. 26(a)(1) Initial Disclosures. We suggest that Defendant attend with its respective technology expert(s), who should be thoroughly familiar and able to discuss, where applicable to this matter, items “a” through “t,” below. In proceeding with a conference attended by each party’s technology expert, we intend to minimize the potential for misinterpretation of discovery requests, defective discovery responses, and discovery-related motion practice, with the objective of reaching mutual agreement on a stipulated ESI production protocol. If Defendant does not agree with this proposal, please so advise, so that we may, at the appropriate time bring this to the Court’s attention for guidance and resolution at an early stage of litigation."

A Fed.R. Civ.P. 26(f) eDiscovery Meet and Confer Request (II)

Plaintiff’s counsel and its expert will be prepared and intend to discuss:"•  a. "Agreement as to general definitions to be used by the parties;"•  b. "Identification of individuals, including any non-party or third-party individuals,

who can testify to eDiscovery issues, including network and computing infrastructure, electronic records management and retention, and sources of potentially relevant ESI;"

•  c. "Identification of all data storage, whether connected or not connected to Defendant’s network mapping that may be a source of ESI;"

•  d. "Acquisition of Defendant’s documentation of processes that are used to manage the Defendant’s system(s) that generate and store ESI. Examples include back-up and business "

•  continuity policy, data retention policy, as well as internally and externally prepared audit reports documenting adherence to these policies;"

•  e. "Acquisition and examination of all pertinent versions of uncompiled source code; "

•  f. "The necessity for restoration of previously deleted information;""

A Fed.R. Civ.P. 26(f) eDiscovery Meet and Confer Request (III)

•  g. "Determining whether or not back-up and archive information is within the scope of discovery"

•  h. "Defendant’s data protection policies and methodologies, such as continuous data protection, data base snapshot or other rollback technologies; "

•  i. "Existing and continuing necessity for ESI preservation; "•  j. "Existing and or future necessity for forensic evidence collection, and

preservation orders, and other extraordinary ESI preservation activities; "

•  k. "ESI search, terms, search protocols, sampling and error testing; "•  l. "Nature, form, and format of ESI production to be produced by Defendant;"•  m. "Production (where applicable) of structured data, including search

queries;"•  n. "Form and format for initial disclosures of ESI;"•  o. "Description of the processes of production;"

A Fed.R.Civ.P. 26(f) eDiscovery Meet and Confer Request (IV)

•  p. "Production schedule and costs;"•  q. "Privilege log format, timing, and privileged document metadata;"•  r. "Clawback and Fed.R. Evid. R. 502 issues; ""•  s. "Entry into an appropriate protective order;"•  t. "Documenting efforts to reach an accord regarding eDiscovery disputes."

Other Federal District Courts are Following the 7th Circuit Pilot Program Principles

•  U.S. District Court for the Northern District of California Electronic Discovery Guideline 2.05 (e-Discovery Liaison)

•  In most cases the meet and confer process will be aided by participation of e-Discovery liaisons as defined in this Guideline.

•  If a dispute arises that involves the technical aspects of e-Discovery, each party shall designate an e-Discovery liaison who will be knowledgeable about and responsible for discussing their respective ESI.

•  An e-Discovery liaison will be, or have access to those who are, knowledgeable about the location, nature, accessibility, format, collection, searching, and production of ESI in the matter.

"

Other Federal District Courts are Following the 7th Circuit Pilot Program Principles

•  U.S. District Court for the Northern District of California Electronic Discovery Guideline 2.05 (e-Discovery Liaison) –  Regardless of whether the e-Discovery liaison is an attorney (in-

house or outside counsel), an employee of the party, or a third party consultant, the e-Discovery liaison should:

•  Be prepared to participate in e-Discovery dispute resolution to limit the need for Court intervention

•  Be knowledgeable about the party’s e-Discovery efforts

•  Be familiar with, or gain knowledge about, the party’s electronic systems and capabilities in order to explain those systems and related questions

•  Be familiar with, or gain knowledge about, the technical aspects of e-Discovery in the matter, including electornic document storage, organization, and format issues and relevant information retrieval technology, including search methodology

"

The Rule 26(f) ESI Meet and Confer

•  What will technology offer tomorrow? Next month? Next Year?

–  Do you know what to request?

–  Do you know who to depose?

–  Will you be prepared to know to ask?

•  E-Discovery liaisons can help avoid the drive-by, détente, demolition derby meet and confer

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Recent Decisional Authority

•  Counsel for both parties were thus equally deficient in their attention to the important technical questions that should have been addressed in connection with Plaintiff's demand for production of the tapes. See Conor R. Crowley, Esq., Duty of Competence in E–Discovery, U.S. Law Week, June 12, 2012, at 1721, 1722 (Bloomberg BNA) (observing that electronic discovery matters (“ESI”) counsel should be familiar “an appreciation of the relevant technology” and citing to Electronic Discovery Program of the Seventh Circuit Court of Appeals adopted in 2009 requiring, inter alia, in ESI litigation that counsel who are not competent as to a client's computer system designate an e-discovery liaison who is familiar with “electronic document storage ..., and relevant information retrieval technology, including search methodology.”). [emphasis added]"

–  U.S. ex rel. Ifrah v. Cmty. Health Ctr. of Buffalo, Inc., 05-CV-237A F, 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)"

•  "

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In the final analysis, it’s all about… Admissibility of ESI as evidence

ESI Admissibility Logic

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Questions?

Steven W. Teppler Abbott Law Group, P.A. 941.487.0050 [email protected]

electronic discovery – milestones and issues for 2013 · 2013. 10. 31. · • during phase two,...

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