CBA Tort Law Committee February 8, 2012

1. CBA Tort Law CommitteeFebruary 8, 2012 E-Discovery Presented by: George Bellas www.bellas-wachowski.com

2. It’s no longer on paper It’s all in the computers Snail Mail is dying 103 billion emails a day 43 billion IM’s a day Some of this information is useful. We need to get the useful info and then figure out how to use it.

3. What is e-Discovery? e-discovery is the collection, preparation, review and production of ESI which is relevant to a legal proceeding.

4. “ESI” – FRCP 34 • Adopted with the Amendments to the Federal Rules of Civil Procedure in December 2006. • ESI is “Electronically Stored Information”and includes all discoverable information • ESI is subject to production under Rule 34(a) • Under Rule 34(b) the form of production of ESI • can be specified by the requesting party in a request, or • thereafter by a responding party in a response • but if you don’t specify,it must be produced in the form in which is ordinarily maintained (ie. as ESI)

5. e-Mission Impossible? Get the ESI needed for your case and then figure out how to use it. But with computers this is not always easy to do – results in a lot of litigation.

6. Storage Devices: • Desktop Computers/Hard Drives/Laptops • Backup Tapes • Portable Flash Drives, Floppy, Zip and Jaz Diskettes • Optical Media - CDs, CD-Roms, DVDs • Home Computers • PDAs, Blackberry®smartphones and Cell Phones • Digital Cameras and Flash Media • Voicemail • Fax Machines, Copiers and Printers • iPod® and iPad® mobile digital devices, Kindle™ and Nook™ eReaders, etc.

7. Paper vs. ESI ESI, unlike paper, contains METADATA . . . or information about the file that is recorded by the computer and the user in storing and retrieving the file at a later date. Metadata is the history of the ESI

8. Illinois Rules for e-Discovery Rule 201(b)(1) defines documents to include “all retrievable information in computer storage” Rule 214 requires production of all retrievable information in computer storage in printed form. OUTDATED ! ! ! !

9. Illinois Courts’ Simplistic Approach • Comments to Rule 214 – reason for production of paper . . . . “. . . intended to prevent parties producing information from computer storage on storage disks . . . Which may frustrate the party requesting discovery from being able to access the information produced.” • Outdated and ignores the importance of the original data.

10. “tif” is just a Picture • This is what you are currently getting in discovery! • Defendant prints out and images a .tiffile • Many files take up more than 1 page (spreadsheets) • Result is data spread over more than one page resulting in separate .tifimages • All underlying formulae are stripped and it is not searchable – A .tif is just a picture of a document! • To salvage it, OCR is administered • But OCR is inherently error prone • OCR spell checking does correct errors • Numeric data cannot be spell-checked

11. Effects of a “tif” tactic . . . By the time you get an edited picture of a picture . . . . • Usability – Gone • Searchability – Crippled • Integrity – Destroyed • Content – Misrepresented If you want to get the useful METADATA and see the document in its original format , you must insist on getting the ORIGINAL ESI FILES . . . but be careful for what you ask for!

12. Courts are seeing the light! Rather than simply copying the electronic media to permit ... search and review ... on a computer screen, the plaintiffs spewed the digital production onto paper and then copied the paper for review. Thus, the court must disagree with the plaintiffs counsel’s assertion that this case was a paradigm of efficient litigation. In re Instinet Group, 2005 Del.Ch. LEXIS 195 (Del.Ch. 2005)

13. e-Admissibility – Nothing NewTraditional Rules Still Apply Relevant Authentication Hearsay Best Evidence Rule (. . but what’s the original document?) Probative Value & Unfair Prejudice

15. Introduction of e-Evidence • Old rules of evidence apply to paper. • Authenticity goes to whether the evidence is what it purports to be . . . • Content and authorship goes to the weight of the evidence. • What rules should be applied to ESI to be used in evidence at trial? • Commentators and scholars are debating this subject.

16. Introduction of e-Evidence What rules should be applied to ESI to be used in evidence at trial? Commentators and scholars are debating this subject. New rules are being suggested. You must look to the record system it comes from . . . and this is where the costs climb.

17. Authentication of e-Evidence • Social Media, Email and Electronic Files are changing the ways we look at trial evidence • Paper is different than ESI • Problems are with Authentication • If government computers can be hacked, how safe are other computers? • ie., Wikileaks • Cloud Computing creates problems.

18. Authentication of e-EvidenceWhat is the Original? A digital file cannot exist independently from the media upon which it is recorded. The original is just the binary code. Software is needed to “review” or view the document. ESI consists of the human created content and the metadata.

19. Admissibility of ESI Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.MD. 2007) • a landmark decision about the admissibility and authentication of digital evidence was set down in a 100-page opinion by Magistrate Judge Paul W. Grimm • established a detailed baseline for the use of ESI before his court. • Given the guidelines and references provided by the judge, it now becomes difficult for counsel to argue against the admissibility of electronic evidence.

20. The Verdict – Key Evidence Forged Hospital Record How do we deal with this problem in the 21st Century when all records are stored in electronic format?

21. Getting Hospital Records • Send request to the hospital Legal Counsel or Chief Information Officer, not the Records Custodian • Detail the information you are seeking: • ie, need to know when medical and nursing licensed personnel documented on the chart and the time the changes were made - so you want the information surrounding the file that shows the changing of the file

22. Getting Hospital Records(Part 2) Request Audit Trail Information Request Logging Information Request the Data Dictionary

23. Getting Hospital Records(Part 3 – The hard part) • No standards in the industry • All medical providers have different databases and these buzz terms with get them to sit up, notice and balk...but most likely won't produce anything.  For example, audit trail information may not exist.  • The data dictionary will be useless without the key to corresponding tables.  The facilities might not even have canned reports that they can spit out.  • You could request  a “Coma Delimited File” that would contain the information you are seeking, but in a spreadsheet type format that neither you nor possibly anyone else could understand. • Bottom line . . . Very expensive and hard to get.

24. E-Discovery $ $ $ $ The cost of pursuing e-discovery issues is prohibitive for most small offices . . . . e-discovery threatens to eat up the value of litigation New Rules attempt to make the process more affordable

25. Federal Rules – a Ray of Light! • Amendments effective on 12/6/06 specifically address ESI • The drafters noted that “the discovery of ESI is becoming more time consuming, burdensome and costly.”

26. Fear Not the Federal Rules • Big Business is terrified of the federal e-discovery rules • They have spent millions preparing for e-discovery and consulting with e-discovery experts • We will be getting generic collections and not specific answers • Embrace your fears

27. “ESI” – FRCP 34 • Adopted with the Amendments to the Federal Rules of Civil Procedure in December 2006. • ESI is “Electronically Stored Information”and includes all discoverable information • ESI is subject to production under Rule 34(a) • Under Rule 34(b) the form of production of ESI • can be specified by the requesting party in a request, or • thereafter by a responding party in a response • but if you don’t specify,it must be produced in the form in which is ordinarily maintained (ie. as ESI)

28. Format for Production of ESI • Rule 34(b) requires the party requesting ESI to specify the format in which information should be produced. • If not specified, the Rule permits the responding party to produce ESI either in: • the format in which it is ordinarily maintained, or • a format that is reasonably usable

29. The big change is the Meet and Conferrequirement of Rule 16

30. Required Disclosures • Rule 16(b) scheduling orders permit the courts to include provisions for disclosure or discovery of ESI • Parties are required to discuss preservation and disclosure of ESI at Rule 26 planning conferences in a “Meet and Confer” meeting. • Parties are required to include ESI in their initial disclosures under Rule 26(a).

31. 7th Circuit’s E-Discovery Pilot Program • Chair: Chief Judge James Holderman • Includes lawyers, in-house counsel and consultants. Several Lawyers are here today. • Primary Goal is to change the pretrial dynamic to lessen the cost of e-discovery.

32. Principle 1.01 – Purpose • To “incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)” • To help courts 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 without Court intervention.”

33. Cornerstones of the Principles • Cooperation • Proportionality

34. Zealousness Dying No longer exists in the ABA model rules No longer has a place in our courts.

35. Principle 1.02 – Cooperation • An attorney’s zealous representation is not compromised by cooperating in discovery • Failure of counsel/party to cooperate in “facilitating and reasonably limiting discovery requests and responses” contributes to a “risk of sanctions” • Note: Read Fed. R. Civ. P. 26(g) and Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

36. Content Accessibility –the New Battlefield • FRCP allow responding parties to evaluate the relative expense and difficulty of producing information from one system (source) versus another. • The burden and costs may make the data “not reasonably accessible” • The question of what is – and what is not – reasonably accessible has already proven to be fertile grounds for disputes

37. Reasonably Accessible – 7 Factors from Zubulake • The extent to which the request is specifically tailored to discover relevant information; • The availability of such information from other sources; • The total cost of production, compared to the amount in controversy; • The total cost of production, compared to the resources available to each party; • The relative ability of each party to control costs and its incentive to do so; • The importance of the issues at stake in the litigation; and • The relative benefits to the parties of obtaining the information.

38. Proportionality Emerging law has shifted the costs of recovery of data to the requesting party. The old rules provided that the court could issue an order to protect a party against “undue burden or expense.” This was used as a shield by Defendants.

39. Court Response: “Proportionality” • Courts developed new rules. • See Zubalake I – 217 FRD 309 • Accessible vs. Inaccessible data • The cost of producing accessible data is borne by the producing party • The cost of producing inaccessible data is weighed under the 7 factor test developed by the Judge in Zubulake I and then codified in the Amendments.

40. Principle 1.03 – Proportionality • Fed. R. Civ. P. 26(b)(2)(C) proportionality standard should be applied in formulating a discovery plan • ESI production requests and responses “should be reasonably targeted, clear, and as specific as possible” • Note: Proportionality standard applies to all discovery, even “accessible” ESI

41. Principle 2.06 – Production Format • Requires a good-faith effort to agree on the format of ESI production at the initial 26(f) conference • If unable to agree, should be raised promptly with the court • ESI stored in a database can be produced by querying the database for information resulting in a report or other reasonably useable and exportable electronic file

42. Principle 2.06 – Production Format (Costs) • The requesting party is generally responsible for the cost of creating its copy of the requested information • Discussion of cost-sharing encouraged • Particularly when discussing the addition of optical character recognition (OCR) or other upgrades of paper documents, or if non-text-searchable electronic information is contemplated by parties

43. Proportionality – Factors to Consider: • What is the relevance of proposed discovery. • This is a fundamental gate-keeping question. • Is the discovery sought from a party or a nonparty? • Does the discovery sought relate to a key player? • Does the discovery relate to a key time period? • Does the discovery relate to the core issues in the case? • Does the discovery relate to a unique source of information? • What are the burdens and costs involved? • Is the information from a source that is not reasonably accessible? • What is the amount in controversy? • What is the relative importance of issues at stake in the case? • What are the relative resources of the parties?

44. Principle 3.01 – Education • It is “expected” that in any “litigation matter” that counsel will be familiar with • The federal rules on e-discovery • The 2006 Advisory Committee report concerning the federal e-discovery amendments • The Seventh Circuit’s Pilot Program E-Discovery Principles

45. Discovery Pilot Program • Seeking to advance the Principles in other jurisdictions • Web site: • www.discoverypilot.com

46. State Courts New York is considering the adoption of the Federal Rules New Jersey courts are acting on their own to adopt the Principles California is working on its own set of rules (no big surprise here) Illinois . . . . is doing nothing . . . but something may be afoot.

47. E-Discovery is Expensive The cost of pursuing e-discovery issues is prohibitive for most small offices . . . . There are changes afoot to make the process more affordable We need to take advantage of the rules

48. Practice Suggestions Use the Federal Rules as a guideline Focus on what you need, not what you want. Cooperate with the other attorney. Failure to cooperate will be punished. Find ways to minimize the cost of e-discovery Protect your client from inadvertent destruction.

49. Send Preservation Letters • Preservation Letter • Scope of Discovery Letter asking for Rule 26 Disclosures • SEE SAMPLE LETTER • Demand production in a usable format • SEE SAMPLE LETTER

50. Additional Resources: Seventh Circuit Pilot Program: www.discoverypilot.com Sedona Conference and Glossary: www.thesedonaconference.org/ EDRM: www.edrm.net/ Merrill Knowledge Source: www.merrillcorp.com/merrill-knowledge-source.htm