E-discovery: The Basics or How to Avoid 8 million in Sanctions

1. E-discovery:The Basics or How to Avoid $8 million in Sanctions

2. OVERVIEW E-discovery: What is it? The E-discovery Timeline The Litigation �Mousetrap�: The Case Within a Case Worst Case Scenarios

3. Worst Case Scenarios, orScared Straight Qualcomm Inc. v. Broadcom Corp., No. 05-cv-1958-B, slip op. (S.D. Cal. Jan. 7, 2008) Qualcomm: $8.5 Million dollar sanction 6 attorneys referred to California State Bar for investigation and possible sanctions Court ordered CREDO program for Qualcomm and Sanctioned Attorneys to prevent such failures in the future. Broadcom may attend with Qualcomm and sanctioned attorneys to cover attorney�s reasonable costs and fees.

4. E-discovery: What is it? The process of searching, collecting, culling, filtering, processing, reviewing, managing and producing evidence that exists in an electronic form. ESI: Electronically Stored Information

5. E-discovery: How Much is It?

6. E-Discovery: How Much Is It? 2004 Average gigs/custodian � 1-3 gigs 1 gig � 70,000 pages (� 30 boxes) Now, average gigs/custodian � 3.5 to 5+ Printed documents = less than 5% of documents

7. E-Discovery: How Much is It? Typical e-mail system 500 employees X 25 e-mail messages/employee/day X 250 working days/year = 3,125,000 E-mail messages (does not include additional copies of e-mails found on back-up and recovery systems)

8. E-discovery: Where is It? Databases Networks Computer Systems Legacy systems Servers Archives Backup or Disaster Recovery Systems Tapes, Discs, other Storage Media

9. Why E-Discovery is Different: Paper vs. Electronic Documents

10. E-discovery Timeline You cannot take the same approach from one case to another, there is a basic flow to all e-discovery practice. There are 5 basic e-discovery phases: Strategy Collection Processing Review Production All 5 of these phases should be addressed. We�ll go through the checklist for each phase ? You cannot take the same approach from one case to another, there is a basic flow to all e-discovery practice. There are 5 basic e-discovery phases: Strategy Collection Processing Review Production All 5 of these phases should be addressed. We�ll go through the checklist for each phase ?

11. E-discovery Checklist Define the time! Designate an e-discovery project manager Prepare e-discovery plan Prepare list of relevant custodians Implement litigation hold Prepare for 30(b)(6) of IT personnel Select ESI service provider(s) Project Manager: Maintain log(s) of e-discovery procedures and activities in a �case book� Communicating with service providers and internal litigation support Training users in effective use of the review platform Providing regular quality and productivity reports Identifying issues and solutions Ensuring the project stays on schedule and within the budget Meet with client: (I didn�t want to bury you all in paper today, but I do have a handy cheat sheet for this one) Scope of e-discovery Data types � hardware and software Accessible and inaccessible data Identify relevant time periods and custodians Document retention/destruction procedures Preservation duties Determine preferred form of production IT dept structure Meet with opposing counsel: Scope of production Data types Data sources Content: key dates and custodians, search terms Form of production Inadvertent disclosure of privileged and confidential information Metadata Cost shifting for inaccessible data Select ESI vendors: In a few minutes, we�ll go into more detail about what types of service providers exist and what kinds of e-discovery services each can provide. Project Manager: Maintain log(s) of e-discovery procedures and activities in a �case book� Communicating with service providers and internal litigation support Training users in effective use of the review platform Providing regular quality and productivity reports Identifying issues and solutions Ensuring the project stays on schedule and within the budget Meet with client: (I didn�t want to bury you all in paper today, but I do have a handy cheat sheet for this one) Scope of e-discovery Data types � hardware and software Accessible and inaccessible data Identify relevant time periods and custodians Document retention/destruction procedures Preservation duties Determine preferred form of production IT dept structure Meet with opposing counsel: Scope of production Data types Data sources Content: key dates and custodians, search terms Form of production Inadvertent disclosure of privileged and confidential information Metadata Cost shifting for inaccessible data Select ESI vendors: In a few minutes, we�ll go into more detail about what types of service providers exist and what kinds of e-discovery services each can provide.

12. Need to Know Your IT Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V) Counsel must become familiar with her client�s document retention policies, as well as the client�s data retention architecture. This will invariably involve speaking with [IT] personnel, who can explain system-wide backup procedures. It will also involve communicating with the �key players� in the litigation, in order to understand how they stored information. New Jersey L.Civ.R. 26.1(d) �Prior to a [Rule] 26(f) conference� Counsel shall review with the client the client�s information management systems � in order to understand how information is stored and how it can be retrieved Counsel shall identify a person � with knowledge about the client�s information management systems � with the ability to facilitate, through counsel reasonably anticipated discovery.

13. Don�t Get Caught �

14. E-discovery Checklist Data collection plan: Determine where data exists, data types, how it will be collected, and by whom. You�ll want to develop a collection strategy that will minimize the disruption to client�s normal business activity ? Record data collection chain of custody in �case book� ? Data collection plan: Determine where data exists, data types, how it will be collected, and by whom. You�ll want to develop a collection strategy that will minimize the disruption to client�s normal business activity ? Record data collection chain of custody in �case book� ?

15. E-discovery Checklist Select a review tool: web-hosted review, internal document management system Process data: During the processing phase� Conversion to common format for review: You have a few options�TIF, PDF, native format reviewed as text in review tool Culling to minimize the size of the collection: keyword searches, date searches De-duplication: Many of the electronic discovery processing programs have mechanisms for identifying potential duplicates and �grouping� them together to facilitate reviews. Every electronic file has a unique hash number. During the de-duplication process, duplicate files are identified and eliminated from processing by comparing their hash numbers. This process reduces cost and protects you from inconsistent determinations of responsiveness and saves time. ? Record all processing info: Who did it, date, description of files and process, whether de-duping was done, what key words were used for culling, original format ? Design and create review database: If using a service provider or in-house tool, work with them to customize the review database to fit the needs of your case. ? Select a review tool: web-hosted review, internal document management system Process data: During the processing phase� Conversion to common format for review: You have a few options�TIF, PDF, native format reviewed as text in review tool Culling to minimize the size of the collection: keyword searches, date searches De-duplication: Many of the electronic discovery processing programs have mechanisms for identifying potential duplicates and �grouping� them together to facilitate reviews. Every electronic file has a unique hash number. During the de-duplication process, duplicate files are identified and eliminated from processing by comparing their hash numbers. This process reduces cost and protects you from inconsistent determinations of responsiveness and saves time. ? Record all processing info: Who did it, date, description of files and process, whether de-duping was done, what key words were used for culling, original format ? Design and create review database: If using a service provider or in-house tool, work with them to customize the review database to fit the needs of your case. ?

16. E-discovery Checklist Create and document a review plan Determine deadlines Estimate a budget Create a review orientation binder for reviewers: complaint or summary of the case Copies of discovery requests List of core team members and litigation support resources �What�s a hot doc� memo Chart of relevant custodians List of attorney names for privilege screening Keywords for determining responsiveness Relevant issues Copy of review form Glossary of case-specific or industry-specific terms ? Organize the review team and train them on how to use the review tool Review and code the data ? Screen for privilege and responsiveness ? Create and document a review plan Determine deadlines Estimate a budget Create a review orientation binder for reviewers: complaint or summary of the case Copies of discovery requests List of core team members and litigation support resources �What�s a hot doc� memo Chart of relevant custodians List of attorney names for privilege screening Keywords for determining responsiveness Relevant issues Copy of review form Glossary of case-specific or industry-specific terms ? Organize the review team and train them on how to use the review tool Review and code the data ? Screen for privilege and responsiveness ?

17. E-discovery Checklist Filter the database for responsive, non-privileged documents and any other criteria (ex. if you have a field for which to indicate the discovery request to which doc is responsive, you can filter down to only docs responsive to a particular request, issue, etc.) ? Convert ESI to agreed-upon production format: ? Number the production ? Produce documents ? Record production dates, document ranges ?Filter the database for responsive, non-privileged documents and any other criteria (ex. if you have a field for which to indicate the discovery request to which doc is responsive, you can filter down to only docs responsive to a particular request, issue, etc.) ? Convert ESI to agreed-upon production format: ? Number the production ? Produce documents ? Record production dates, document ranges ?

18. E-discovery Timeline

19. E-discovery Resources Case Planning Assist with client and client IT discussions about e-discovery; prep for meet and confer with opposing counsel; help create e-discovery plan ? Assist with database design and management; creating production sets ? Help find service providers, and help assess whether internal or outsourced resources are more appropriate for your case. ? Training and support for e-discovery technology ? Case Planning Assist with client and client IT discussions about e-discovery; prep for meet and confer with opposing counsel; help create e-discovery plan ? Assist with database design and management; creating production sets ? Help find service providers, and help assess whether internal or outsourced resources are more appropriate for your case. ? Training and support for e-discovery technology ?

20. E-discovery Resources There a 4 basic kinds of e-discovery service providers. Determine what services you need for your case, and then determine which can and/or should be handled internally, and which are more efficiently handled by a service provider Consulting Help assess client IT infrastructure and preservation issues ? Data collection: Filtering Data management Forensic data recovery: recovery of archived or deleted, compressed files Mirror-imaging of hard drives ? Data processing: objective coding Conversion to review format E-mail processing De-duplication Redaction, electronic numbering, and OCR ? Web-hosted review Review services and software Production Web-hosted review, internal database. Each has its advantages Web hosted review by a third-party: on-line tool available through internet; password to login; chain of custody becomes the third-party vendor�s responsibility (if anyone is called to testify re chain of custody issues), some vendors can handle everything for you from collection, processing, review tool, production, numbering�it is costly: most charge an up front fee for set up, then there�s processing, creating production sets, electronic numbering, de-duplication, etc. all extra costs. PLUS a monthly fee. Not the best option for smaller volumes of docs or if you only have 1 or 2 reviewers. You have to think about production sets, etc. very early to give the vendor time. Many have standard deadlines for each process. Most beneficial for larger volumes that will be reviewed and produced over long period of time. Internal document management systems (Summation, Case Map): Best for smaller, more manageable volumes of data or larger volumes received over long periods of time. Much of the processing still has to be conducted by a third party ?There a 4 basic kinds of e-discovery service providers. Determine what services you need for your case, and then determine which can and/or should be handled internally, and which are more efficiently handled by a service provider Consulting Help assess client IT infrastructure and preservation issues ? Data collection: Filtering Data management Forensic data recovery: recovery of archived or deleted, compressed files Mirror-imaging of hard drives ? Data processing: objective coding Conversion to review format E-mail processing De-duplication Redaction, electronic numbering, and OCR ? Web-hosted review Review services and software Production Web-hosted review, internal database. Each has its advantages Web hosted review by a third-party: on-line tool available through internet; password to login; chain of custody becomes the third-party vendor�s responsibility (if anyone is called to testify re chain of custody issues), some vendors can handle everything for you from collection, processing, review tool, production, numbering�it is costly: most charge an up front fee for set up, then there�s processing, creating production sets, electronic numbering, de-duplication, etc. all extra costs. PLUS a monthly fee. Not the best option for smaller volumes of docs or if you only have 1 or 2 reviewers. You have to think about production sets, etc. very early to give the vendor time. Many have standard deadlines for each process. Most beneficial for larger volumes that will be reviewed and produced over long period of time. Internal document management systems (Summation, Case Map): Best for smaller, more manageable volumes of data or larger volumes received over long periods of time. Much of the processing still has to be conducted by a third party ?

21. When To Use a Vendor Processing image files Scanning hard copies Large e-mail store files Large volumes of native file that need TIFF images Large volume OCR Processing MSG e-mail format

22. Volume Form of Production File Formats: Microsoft Project; Primavera; CAD drawings; drafting software Issues Maintenance Vendors Issues to Consider Things to consider before using Summation for your e-discovery Volume Work with your client to assess the estimated potential volume of relevant documents and their formats. If you have over 300,000 documents, consider using an outside vendor to house and maintain your documents. OR manage the docs in more than one Summation case. Images loaded into Summation are actually housed on the firm�s internal network. Make sure there is enough memory space on the server to house your images and/or electronic documents. IT can help you determine the best location for your documents. Form of Production During initial discovery conference, work with opposing counsel to ensure that they can deliver docs in a Summation-friendly format or at least in a format easily converted for Summation. Decide whether you want to load opposition docs into Summation or even create a separate db for their docs File Formats What do you have most of? Hard copies, images, PDF, electronic documents, e-mail? Does opposing counsel request docs in native format? Issues Determine the issues relevant to your case. Maintenance Make sure you have a paralegal on your team who can manage your database: there are several functions that should be conducted on a routine basis (check, pack, blaze, backup) to ensure that you do not lose any data Who will load your images? Vendors Make sure you have an e-discovery vendor who understands Summation and how you plan to use it Find court reporters who can deliver transcripts in the appropriate format Things to consider before using Summation for your e-discovery Volume Work with your client to assess the estimated potential volume of relevant documents and their formats. If you have over 300,000 documents, consider using an outside vendor to house and maintain your documents. OR manage the docs in more than one Summation case. Images loaded into Summation are actually housed on the firm�s internal network. Make sure there is enough memory space on the server to house your images and/or electronic documents. IT can help you determine the best location for your documents. Form of Production During initial discovery conference, work with opposing counsel to ensure that they can deliver docs in a Summation-friendly format or at least in a format easily converted for Summation. Decide whether you want to load opposition docs into Summation or even create a separate db for their docs File Formats What do you have most of? Hard copies, images, PDF, electronic documents, e-mail? Does opposing counsel request docs in native format? Issues Determine the issues relevant to your case. Maintenance Make sure you have a paralegal on your team who can manage your database: there are several functions that should be conducted on a routine basis (check, pack, blaze, backup) to ensure that you do not lose any data Who will load your images? Vendors Make sure you have an e-discovery vendor who understands Summation and how you plan to use it Find court reporters who can deliver transcripts in the appropriate format

23. E-Discovery: The Case within a Case Duty to Preserve Scope of Discovery How to produce e-Discovery Inadvertent Disclosure Sanctions

24. Preservation Parties discussion should balance competing needs to preserve relevant evidence and to continue routine operations critical to ongoing activities with the goal of agreeing on reasonable preservation steps. Source: Amended Fed. R. Civ. P. 26(f) advisory committee note Issue Legal Hold Notice Suspend auto delete Mirror-image Hard Drives Preserve Back Up Media Preserve E-mail Preserve Instant Messages & Voicemails Thumb Drives PDAs Information on Network Put 3d parties on notice of preservation duties

25. Scope of Discovery Rule 26(a)(1)(A)(ii): initial disclosures to include a description by category and location all �electronically stored information� Identify data source with �enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified source� (Cmte Notes, Rule 26(b)(2)). Defend the assessment of undue burden or cost; and Defend the determination of the preservation obligations that apply Martin v. Northwestern Mut., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006): monetary sanctions imposed on plaintiff for failing to produce electronic documents, calling plaintiff attorney�s claim that he was computer illiterate �frankly ludicrous.�

26. Form(s) of Production Rule 34(b): absent agreement otherwise, party is to produce electronically stored information in one of two so-called �default forms�: The form �in which it is ordinarily maintained;� A form that is �reasonably usable.� Must be ready to address at 26(f), or Kentucky Speedway v. NASCAR, 2006 U.S. Dist. LEXIS 92028 (E.D. Ky. Dec. 18, 2006) �The issue of whether metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a Rule 26(f) conference. � Plaintiff made late request for metadata, w/o showing a �particularized need� Ordered to identify particular documents rather than blanket request for metadata

27. Privilege Required to be addressed at Rule 26(f) Rule 16: scheduling order may include parties� agreement Rule 26(b)(5)(B): �clawback� Possible Provisions: Exempt from logging requirements or use group designations No assertion of waiver Time Limit for Retrieval Initial designation until producing party can complete review �Quick Peek�

28. Five Takeaways Define the time If in doubt, preserve Designate a person to be the Project Manager of ESI for your case Prepare for Rule 26 conference early or risk a blown opportunity �Buy in� to discovery process.

31. PROJECT RECORDS DOCUMENT RETENTION: DOES IT MATTER?

32. What does YOUR company do? Keep hard copy and electronic documents forever in a storage facility Archive documents to pdf and store forever Follow a written document retention policy �I have no idea�

33. What is the construction industry doing? Not a leader in document retention but should be Efficiency advantages Consistency advantages No longer someone�s secondary duty

34. Why hasn�t the construction industry led others in document retention policies? Controlling cases and law do not originate from the construction industry Changes in Federal Rules are recent Sanctions imposed vary widely Electronic storage continues to rise

35. Why implement now? Enough notice from courts to establish risk Volume will only increase and make the transition more difficult

36. How to get started Will require senior management support Form a committee of senior level employees Assess current paper and electronic volume file Assess current records management policy and procedures (if there is one) Consider a consultant

37. Next Steps Senior level committee develops policies and procedures Develop a records retention schedule How long are certain documents legally required to be kept? What about contractual requirements? Provisions for Litigation Hold?

38. Personnel/Staffing Depends, of course, on size Director of Records Management Each department should have a records coordinator Department Records Coordinators report to Director

39. Next Steps Implementation and Training Scheduled future training refreshers Test policy and procedures Modify business processes as appropriate

40. How is the Document Retention Policy Maintained? Department Records Coordinators are all on the front line Records Manager and staff work with Coordinators Senior level committee assesses and recommends

41. Recommendations for Best Practices for Document Retention and Management Make sure your document retention policy correlates with your business practices That it takes into account any statutory or regulatory obligations That it accommodates contracted requirements

42. Make sure someone is REALLY in charge of Records Retention Consult counsel regarding the policy Ensure that staff is aware of the importance and significance of a Litigation Hold Set up a response team for litigation holds Consider an outside vendor or consultant (Sometimes employees tend to over or under preserve data)

43. Senior Level Committee Should include: General counsel Senior executive(s) Head of IT Department Records Retention Manager

44. Educate yourself and general counsel about the company�s records: - available technology -- choices for storing records - the accessibility of stored records - cost to retrieve documents from that kind of storage Be particularly careful to avoid the destruction of documents: - Once it�s clear that a duty to preserve has attached - Avoid the risk of sanctions if documents are destroyed after you have a duty to preserve them

47. E-Discovery:Cost-ShiftingCost-Avoidance, andDispute Resolution

48. The Golden Rule Precaution Studies indicate that over 90% of all documents are generated and stored electronically. The push towards �Paperless Projects� Computerized data is discoverable even if hard copies have already been produced. Deleted records are discoverable. Be careful what you ask for. Attorneys and clients should discuss the advantages and disadvantages of E Discovery. �What goes around comes around.� Whatever is furnished by one will be furnished by all

49. Cost Shifting Rebuttable Presumption: the responding party pays If the ESI is accessible, there is no reason for cost shifting. �Undue burden or expense on the responding party.� F. R. Civ. P. 26(c). �Undue�: expense outweighs benefit Factors for balancing expense and benefit: Needs of the case Amount in controversy Resources of the parties Importance of issues Importance of discovery The less specific the request, the more likely costs will be reallocated

50. Cost-Shifting Analysis Is the request tailored to discovery relevant information? Is the information available from other sources? How does the cost of production compare with the amount in controversy? How does the cost compare to the resources of the parties? What are the abilities of the parties to control costs? What is the importance of the issues for which discovery is sought? What are the relative benefits of the discovery? SUMMARY: Good cause trumps inaccessibility. Cost shifting defeats good cause. The Judge�s Role Judge�s have broad discretion in discovery disputes Tough standard for appeal. Most civil cases settle.

51. Addressing Cost-Shifting Arguments Understand the responding party�s computer systems and the way active and archived information is stored. Added Benefits: Knowing what to ask for. Measuring adequacy of responses. Ask For Project Manuals describing IT system Project and IT personnel Determine what information may be found on �inaccessible� media. The Federal Rules do not define �inaccessible� Use sample backup tapes, tracking time and expense. Consider mutually beneficial shortcuts and cost saving measures and agreements. Will documents be produced in print or electronic form? How will the format of electronic documents be determined? Search terms? How will production costs be shared? Inadvertent disclosure/Clawback Arguments E-Discovery leads to E-Evidence E-Avoidance Agreements to limit or avoid E-Discovery. Loss of Evidence v. Cost. Get the Court to sign off on the agreement.

52. Grabbing a Tiger by the Tail, or the Bull by the Horns? If you do not control the E-Discovery process, it will control you. The key to E-Discovery is focusing on obtaining, organizing and analyzing available information.

53. ESI Questions for Your Adversary Use of Interrogatories System Profile Computer Systems Software IT Personnel Backup and Retention Backup programs Backup procedures Creation and maintenance of archiver Maintenance and Access Use of utility programs Are files �wiped�? Upgrades to hardware or software? Chain of Custody and Authentication Changes in personnel, passwords, work stations Equipment disposal Use of outside contractors Preserve your ability to see how ESI was manipulated or changed

54. Cost-Savings Through Retention Policies Regulate computer usage and email. Be aware of potential record losses due to the project-by-project nature of the construction business. Projects conclude. Personnel move. Computers are discarded or redistributed. Paper files are moved. Electronic documents are erased. �Temporary� website data is lost. Reasonable access when needed is the goal. Arthur Anderson : Document destruction is permissible and expected in the ordinary course of business. Documents/ESI purged on a regular basis under a set policy at set intervals in the normal course of business. STOP when litigation becomes likely. Regularly audit your IT policies. Enhance protection of privileged and proprietary information by coding communications. Beware the spoliation negatives. Monetary Sanctions Adverse Inference Instructions Dismissal

55. Dispute Resolution E-Discovery and E-Evidence: The new battleground for expert witnesses What is your Company�s dispute resolution policy? Do you favor Alternative Dispute Resolution? Litigation or Arbitration? Mediation and Arbitration Service Providers Dispute Resolution Under Standard Form Contract Documents: AIA, Consensus Docs, EJCDC Disapportionment with arbitration Increased emphasis on litigation Will E-Discovery renew interest in arbitration? Will state courts follow the federal rules? Client and Counsel: We�re in it together