Produce!

1. Produce! UNIVERSITY OF HOUSTON Summer III 2009 – 5397 E-Discovery

2. The E-Discovery Process-Overview PHASE 1 COLLECTION & SCOPE Preservation Collection Analysis Meet & Confer Rule 16 Scheduling Conference PHASE 2 PLANNING & NEGOTIATING Discovery Plan PHASE 3 EXECUTION ESI Processing Legal Review Production

3. PHASE 3 Actions & Decisions ESI Processing Legal Review Production Selection of E-Discovery Vendor(s) Management of Vendor(s) Analysis of Vendor Reports during Processing Decisions on Filtering Criteria Negotiate Keyword List & Processing Coordination of any Vendor Testimony Develop Review Plan Single or Multi-Phase? Contract Attys? Review Platform[s] Limited Review due to Clawback? Prioritize Review per Rolling Production Agreement Develop Privilege Log[s] Coordinate Productions per “Rolling” Agreement Confirm Authentication Oversee and Log Productions Audit E-Discovery Vendor QA/QC Processes

4. ESI Processing Cost Mgmt Opportunities Based on the Discovery Plan, vendor selection should consider amount and type[s] of ESI, the type[s] of processing planned, the time allowed to process it, and the amount of it that is expected to pass the filters to legal review. To facilitate the process, it is best to have standing Master Agreements with the vendor[s] of choice. ESI Processing Selection of E-Discovery Vendor(s) Management of Vendor(s) Analysis of Vendor Reports during Processing Decisions on Filtering Criteria Negotiate Keyword List & Processing Coordination of any Vendor Testimony The decision of who will manage the ED process is essentially important. Client-management is always best from a cost management perspective. The ability of the vendor to generate reports on the ESI as it is processed [the earlier the better], is essential. Always select vendors who can meet your needs in this regard. Of special importance is keyword “hit reports” that quantify the number and total volume of “hits” for each keyword. Once quantitative reports are generated by the EDVendor, decisions on filtering criteria can be made. Start with highly selective criteria and expand as needed, to assure hi responsive rates early to allow production to begin. This is especially important with keywords, which is why this was negotiated earlier in Phase 2. To the extent that burden or other arguments to limit processing of ESI are relevant, identify the responsible party early so preparation can begin.

5. Legal Review Cost Mgmt Opportunities As soon as it becomes apparent what kind of volume of data will make it to legal review, decide how to proceed: Single review with Trial Counsel, or multi- review with initial review performed by lower cost alternatives. If contract attys are selected, several options exist: 1] Self-contracted, hourly 2] Specialty firm, hourly or unit rate 3] All-inclusive fixed price Legal Review Develop Review Plan Single or Multi-Phase? Contract Attys? Review Platform[s] Limited Review due to Clawback? Prioritize Review per Rolling Production Agreement Develop Privilege Log[s] Selection of review platform is critical. If the file count is high [tens of thousands], conceptual-grouping platforms are proven to reduce cost significantly. Based on the perceived sensitivity of the document collection, consider producing without legal review, subject to a privilege claw-back agreement. Focus initial review on the “low-hanging fruit” so production can begin early, minimizing complaint from the requesting party. This gives more time to cull subsequent productions. Many EDV hosting platforms can auto-produce privilege logs for files so-coded during review.

6. Production Cost Mgmt Opportunities Having negotiated the form of production in the Meet and Confer, the ED vendor can generate the production[s] during normal hours, and not the usual weekend 24/7 panic blitzkrieg, for which premiun charges apply. This also allows time for proper QA to confirm redactions, privileges, etc. Production Coordinate Productions per “Rolling” Agreement Confirm Authentication Oversee and Log Productions Audit E-Discovery Vendor QA/QC Processes Having negotiated a protocol for production of native files, the EDV can generate the production accordingly, along with the cross-reference file with the authentication code [e.g hash values]. Depending on the size and schedule of the productions, stay vigilant as to the schedule to avoid last-minute surcharges. Be sure your EDV is maintaining timely QA on the process. This tends to get behind and can create delays and last-minute problems.

7. D’Onofrio v. SFX Sports Group, Inc. • Rule 34(b) allows the requesting party to specify production format for electronic documents (i.e. native format, tiff or in an online repository). • When the production format is not specified or if the responding party objects to the requested format, the responding party must state its preferred production format.

8. D’Onofrio v. SFX Sports Group, Inc. • According to the Rule, the default production format may be either a form (or forms) in which the information is “ordinarily maintained” or in a “reasonably usable” form.

9. D’Onofrio v. SFX Sports Group, Inc. Key Points: • What was the form of the request from the plaintiff? • What’s the relevant language from the Rule? • What was the Court’s reaction? • How would this play out under Texas Rules?

10. The Rule in Texas • Texas Rule of Civil Procedure 196.4 • Requesting party “must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced.” Tex. R. Civ. P. 196.4. • If responding party cannot produce the material in the form requested after expending reasonable efforts, the party must object. Id. • Finally, if the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. Id.

11. D’Onofrio v. SFX Sports Group, Inc. Key Points: • What was the form of the request from the plaintiff? • What’s the relevant language from the Rule? • What was the Court’s reaction?

12. D’Onofrio v. SFX Sports Group, Inc. • The court concluded • plaintiff's instruction referred to physical file cabinets or folders and that the request could not be read reasonably to include electronic "files." • even if the request were read to refer to electronic files, plaintiff had not specifically requested production of electronic data solely in its original form with accompanying metadata. • The court would not compel production of the business plan with accompanying metadata because that production had not been specifically requested by plaintiff.

13. Victor Stanley Inc. v. Creative Pipe Inc. • Victor Stanley sought a ruling that Creative Pipe had waived the privilege with regard to 165 electronic documents.  • The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to Victor Stanley’s Rule 34 requests.  The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI. ©2008 De la Rosa & Chaumette 13

14. Victor Stanley Inc. v. Creative Pipe Inc. • Early on, Creative Pipe notified the court that individualized privilege review of the responsive ESI would delay production unnecessarily and cause undue expense.  To address this concern, Creative Pipe requested a “clawback agreement.” • Later, after the discovery deadline was extended, Creative Pipe announced a document-by-document privilege review, so no clawback agreement was needed.  ©2008 De la Rosa & Chaumette 14

15. Victor Stanley Inc. v. Creative Pipe Inc. • After privileged documents produced, Creative Pipe claimed that the production of any privileged or protected information had been inadvertent and sent privilege logs. • Two phases of Creative Pipe’s privilege review: • A privilege keyword search performed on those ESI files (4.9 gigabytes) that were in text-searchable format.  • The other ESI files (33.7 gigabytes), defense counsel and an individual defendant performed a manual privilege review, BUT • “this review was undertaken by reviewing the page titles of the documents.” ©2008 De la Rosa & Chaumette 15

16. Victor Stanley Inc. v. Creative Pipe Inc. • The Court did not like Creative Pipe’s explanations: • Creative Pipe vague in description of the keywords used for text-searchable review, • No test of the reliability of the keyword search (sampling of the documents determined to be privileged and those that are not). • The Court found a privilege waiver because Creative Pipe failed to take reasonable precautions. ©2008 De la Rosa & Chaumette 16

17. Victor Stanley Inc. v. Creative Pipe Inc. • The Sedona Conference suggests: • Practice Point 7.  Parties should expect that their choice of search methodology will need to be explained, either formally or informally, in subsequent legal contexts (including in depositions, evidentiary proceedings, and trials). ©2008 De la Rosa & Chaumette 17

18. Victor Stanley Inc. v. Creative Pipe Inc. • The Sedona Conference suggests: • Practice Point 6.  Parties should make a good faith attempt to collaborate on the use of particular search and information retrieval methods, tools and protocols (including as to keywords, concepts, and other types of search parameters). ©2008 De la Rosa & Chaumette 18

19. Victor Stanley Inc. v. Creative Pipe Inc. • Remember: The court discussed the utility of privilege logs, and the burden for the court that in camera review of disputed documents entails, something “about which the parties and their attorneys often seem to be blissfully unconcerned.”  ©2008 De la Rosa & Chaumette 19

20. United States v. O’Keefe • Key points: • Why is this case under the heading “Should Expert Testimony be Required to Explain to the Trier of Fact How Search Protocols Were Constructed?”

21. United States v. O’Keefe • Key points: • Magistrate Judge John M. Facciola ordered the parties to collaborate on production after the co-defendant filed a motion to compel claiming the government failed to meet its discovery obligations.  • Judge Facciola further suggested that any judicial review of search methods may demand the services of an expert witness, observing that lawyers and judges who attempt to determine whether search terms are effective venture "where angels fear to tread."

22. For your consideration… • Consider the Boolean negotiation on pp. 236 – 38. • How would you approach a Boolean search? • How do you approach the other side? • Craig Ball on Boolean terms

23. Williams v. Sprint/United Management • Remember this one?

24. When do these rules apply? • What if the case was filed before December 1, 2006? Which rules apply? Why? • Williams v. Sprint/United Management Co.,230 F.R.D. 640 (D. Kan. Sept. 29, 2005). • Court extensively discusses production of metadata in litigation. • Court explicitly considers: • Sedona Principles for Electronic Document Production. • The proposed FRCP changes. • Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. Nov. 22, 2005). • Extensive analysis of waiver and privilege in the context of the new rules.

25. Williams v. Sprint/United Management • Court ordered an employer in an employment discrimination case to restore the metadata it had “scrubbed” or “erased” from Excel spreadsheet files and “unlock” them. • “When the Court orders a party to produce an electronic document in the form in which it is regularly maintained, i.e., in its native format or as an active file, that production must include all metadata . . . .”

26. Williams v. Sprint/United Management • What if the other side does not ask for it? • What does “all metadata” mean? • How do you avoid that? • Consider file type. • Consider which metadata – or embedded data – matters. • Ask how the information is to be used.

27. Wyeth v. Impax Laboratories, Inc. • Impax moved to compel Wyeth to produce electronic data in native format, including metadata, and to produce a document database that was created for purposes of the litigation.  • Court relies on Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005) and the District of Delaware Default Standard for e-Discovery. Why is this important?

28. Wyeth v. Impax Laboratories, Inc. • Conclusion: “emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata.” • No particularized need for the metadata or the document database, and found that Wyeth complied with its discovery obligation by producing image files in TIFF.

29. Wyeth v. Impax Laboratories, Inc. • Why is this case in the book? • Consideration of the different forms of “metadata.” • Case is a bridge to the privilege discussions in a few weeks. • Shows the precedential value given to Sedona in this area.

30. Ferron v. Search Cactus, Inc. • Attorney brought an action under the Ohio Consumer Sales Practices Act for unlawful, deceptive spam. • Ferron claimed that the emails he received from Search Cactus were misleading and deceptive, in that they offered “free products” without adequately disclosing the conditions attached to claiming those purported “prizes.”

31. Ferron v. Search Cactus, Inc. • Search Cactus requested an inspection of Ferron’s computer systems to determine whether the emails and website visits were a legitimate consumer transaction under the statute. • Search Cactus sought to determine “whether Plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation.”

32. Ferron v. Search Cactus, Inc. • So what were the parties’ approaches? • Ferron sought to limit the forensic inspection to only one small segment of his computers. • Search Cactus argued that complete images of the entire drives were necessary. • Apparently, Search Cactus suspected Ferron of hiding the history in other areas of the drives and of deleting it, or at least trying to.

33. Ferron v. Search Cactus, Inc. • The court allowed a full forensic examination, because: • (1) Ferron had failed to preserve relevant evidence; • (2) Ferron had not produced the relevant information; and • (3) Ferron’s computer system was the only place where the evidence requested was contained • The court recognized Ferron’s concerns regarding confidential and privileged information. For that reason, it protected Ferron’s rights during the computer inspections.

34. Fed. R. Civ. P. 26(b)(2)(B) • (B) Specific Limitations on 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 26(b)(2)(C)[.]

35. McPeek v. Ashcroft • 202 F.R.D. 31 (D.D.C. 2001). • Magistrate Judge Facciola & “marginal utility.” • Plaintiff alleges retaliation following his filing an EEOC complaint alleging sexual harassment. • After discovery requests, defendants searched for electronic and paper documents, but plaintiff wanted DOJ to search its backup systems for potentially discoverable information.

36. McPeek v. Ashcroft • In order to assess the situation, Court ordered restoration of backup e-mails over a one year period, and "carefully" document the time and expense in doing that search. • Based on the results of that sampling, the parties would be allowed to argue about any further search. • In dicta, an "adverse inference" warning …

37. Rowe Entertainment v. William Morris • the specificity of the discovery requests; • the likelihood of discovering critical information; • the availability of such information from other sources; • the purposes for which the responding party maintains the requested data;

38. Rowe Entertainment v. William Morris • the relative benefit to the parties of obtaining the information; • the total cost associated with production; • the relative ability of each party to control costs and its incentive to do so; and • the resources available to each party.

39. Zubulake I • Court warned that the prevailing cost-shifting analysis from Rowe might favor large corporations when engaged in litigation with private parties, a result which could “undermine the ‘strong public policy favor[ing] resolving disputes on their merits,’ and may ultimately deter the filing of potentially meritorious claims.”

40. Zubulake I • Factors to determine whether costs should be shifted: • a. The extent to which the request is specifically tailored to discover relevant information; • b. The availability of such information from other sources; • c. The total cost of production, compared to the amount in controversy; The marginal utility factors… most important of all. See McPeek v. Playboy.

41. Zubulake I • Factors to determine whether costs should be shifted: • d. The total cost of production, compared to the resources available to each party; • e. The relative ability of each party to control costs and its incentive to do so; • f. The importance of the issues at stake in the litigation; and • g. The relative benefits to the parties of obtaining the information.

42. Zubulake III • Court examined these factors and ordered the responding party to endure seventy-five percent and the requesting party twenty-five percent of the total estimated cost for restoring and searching the defendant’s e-mail backup tapes throughout discovery.

43. Wiginton v. CB Richard Ellis, Inc. • Class action complaint – WHY IS THIS IMPORTANT? • Plaintiffs sought discovery of e-mails. What were they looking for? Sexual harassment case. • pornographic material • Defendant produced sample, from eleven offices, of backup tapes, from which Kroll extracted the data and, pursuant to court-defined search terms, found responsive documents.

44. Wiginton v. CB Richard Ellis, Inc. • Clear that responsive documents on backup tapes. • Question becomes whether the cost of producing would be an "undue burden" justifying cost-shifting. • The court modified the Zubulake test by adding a factor that considers “importance of the requested discovery in resolving the issues of the litigation.” • Therefore, because factors favor cost-shifting, but presumption is that responding party pays for discovery costs, defendant pay 25% and plaintiffs 75% of the costs of production.

45. Wiginton v. CB Richard Ellis, Inc. • What’s the impact of the new factor? Even in Wiginton? • Why add it?

46. Application to Facts • Court decides that all documents were to be produced electronically in TIFF format with Optical Character Recognition. • Defendant want the cost of processing the documents should be shifted to the plaintiff, saying the cost of conversion to OCR would likely exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.” 

47. Application to Facts • What sort of things would you like to know? • Estimates from the vendors • What types of documents are they? • How did they end up as TIFFs? • Is it realistic for the Defendant to say “no” to OCR? • Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009) (court says “no”).

48. Application to Facts • In this securities litigation, plaintiff sought to compel discovery of backup tapes from all the individual defendants. • The defendants contended that restoring the back-up tapes could cost upwards of $124,000. The court noted “surprisingly” that the parties had neither entered into any electronic discovery protocol nor had they discussed searching backup tapes.

49. Application to Facts • Court determined without analysis that the backup tapes were not reasonably accessible, but the plaintiff had established “good cause” for further discovery. • Court cited Zubulake in holding that defendant must initially assume cost of searching back-up tapes and prepare an affidavit detailing the results and costs. • Once a partial search is done, the court can then query whether cost-shifting under Zubulake I isappropriate. • In re Veeco Instruments. Inc. Securities Litigation, 2007 WL 983987 (S.D.N.Y. April 2, 2007).

50. Application to Facts • In a class action lawsuit, defendant brought a motion to require plaintiffs to pay 50% of the defendant’s third-party vendor electronic discovery costs incurred to date. • Court rejected the motion as inappropriate and untimely, stating that any assertion that sources or electronically stored information are inaccessible or that production is unduly burdensome, justifying cost shifting or sharing, must be brought before the costs are incurred, to give the requesting party and the court an opportunity to consider alternatives. • Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008).