E-Revelation: Drawing closer the Issues Head On.

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What Are We Doing here?. E-Discovery alterations got to be compelling December 1, 2006Affected Federal Rules:Rule 16, Rule 26, Rule 33, Rule 34, Rule 37, Rule 45 and Form 35. What Are We Doing here?. What did the 2006 Amendments really change?Not MuchInstitutionalized and characterized the part of ESI in the revelation processProvided a system for the Court to favor clawback understandings.
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E-Discovery: Approaching the Problems Head On Laurence Z. Shiekman Pepper Hamilton LLP January 5, 2009

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Why Are We Here? E-Discovery changes got to be viable December 1, 2006 Affected Federal Rules: Rule 16, Rule 26, Rule 33, Rule 34, Rule 37, Rule 45 and Form 35

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Why Are We Here? What did the 2006 Amendments really change? Very little Institutionalized and characterized the part of ESI in the disclosure procedure Provided a system for the Court to affirm clawback understandings

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Why Are We Here But why examine electronic revelation? The development of Electronically Stored Information has brought on sensational changes in the disclosure procedure Corporate email clients send and get a normal of 133 email messages for every day Mail, phone, faxes

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Why Are We Here In 2006, the world made 161 exabytes of data: 12 heaps of paper extending from the earth to the sun Between 2002 and 2006, there was a 800% yearly development in the measure of ESI delivered on the planet 25% of all e-revelation feelings included approvals

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Overview The Rule Changes The Litigation Hold The Duty to Preserve ESI The Production of ESI Special Issues With Privileged Material What\'s the Deal With Metadata? The Admissibility of E-confirmation

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Rule Changes-Rule 26(a) Fed. R. Civ. P. Principle 26(a)(1)(B): Initial Disclosures Except in classifications of procedures determined in Rule 26(a)(1)(E), or the degree generally stipulated or coordinated by request, a gathering must, without anticipating a revelation demand, give to different gatherings: (B) a duplicate of, or a portrayal by classification and area of, all reports, electronically put away data , and substantial things that are in the ownership, authority, or control of the gathering and that the revealing party may use to backings its cases or guards, unless exclusively for indictment…

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Rule Changes-Rule 34(a) (a) Scope Any gathering may serve on some other gathering a solicitation (1) to create … electronically put away data – (counting compositions, drawings, diagrams, graphs, photos, sound recordings, pictures , and other information or information assemblages put away in any medium from which data can be acquired … .

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Rule Changes-Rule 26(b)(2) 26(b)(2) Discovery Scope and Limits A gathering need not give disclosure of ESI if not sensibly available in light of undue weight or cost Good purpose exemption

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Rule Changes-Rule 34(b) Rule 34(b) The solicitation may determine the structure or structures in which electronically put away data is to be delivered Native configuration Web-based generation PDF, TIFF, JPEG Tagged Image File Format

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Rule Changes-Rule 34(b) Rule 34(b)(ii) If a solicitation does not indicate the structure or structures for creating electronically put away data, a reacting party must deliver the data in a structure or structures in which it is customarily kept up or in a structure or structures that are sensibly usable.

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Rule Changes-Rule 26(b)(5)(B) If data is delivered in disclosure that is liable to a case of benefit or of insurance as trial-readiness material, the gathering making the case may tell any gathering that got the data of the case and the premise for it. Subsequent to being advised, a gathering must immediately return, sequester, or obliterate the predefined data and any duplicates it has and may not utilize or unveil the data until the case is determined.

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The Litigation Hold "Once a gathering sensibly envisions case, it must suspend its normal archive maintenance/annihilation strategy and set up a \'prosecution hold\' to guarantee the protection of important records." Zubalake v. UBS Warburg LLC , 220 F.R.D. 212, 218 (S.D.N.Y. 2003)(" Zubulake IV ")

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When Must the Hold Begin? No unmistakable definition for "sensibly foreseen" Can\'t generally sit tight for a grumbling to be documented Mere information might be sufficient Doe v. Norwalk Community College , 2007 U.S. Dist. LEXIS 51084 (D. Conn. July 16, 2007)

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Scope of the Litigation Hold "Companies are not committed, \'after perceiving the danger of case,\' to \'safeguard each shred of paper, each email or electronic archive . . . ." ". . . It is under an obligation to protect what it knows, or sensibly ought to know, is significant in the activity, [or] is sensibly figured to prompt the revelation of permissible proof . . . ." Samsung Electronics Co. v. Rambus , 439 F. Supp. 2d 524, 542-543 (E.D. Va. 2006)

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Scope of the Litigation Hold Ever-expanding rundown of discoverable information sorts Data in RAM is electronically put away data under Rule 34 Rule 34 read expansively to cover future advancements in PC innovation Columbia Pictures Industries v. Bunnell, 2007 WL 2702062 (C.D. Cal. Aug. 24, 2007)

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Duty to Preserve ESI "Must an enterprise, after perceiving the danger of suit, protect each shred of paper, each email or electronic report, and each reinforcement tape? The answer is obviously "no." Such a tenet would handicap vast organizations, as UBS, that are quite often included in prosecution." Zubulake IV , 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

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Duty to Preserve ESI Rule 26(a) constrained to archives that "are in the ownership, care, or control of the gathering" "Control fathoms ownership, as well as the right, power, or capacity to get the reports" Tomlinson v. El Paso Corp. , 2007 U.S. Dist. LEXIS 64783 (D. Colo. Aug. 31, 2007)

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Duty to Preserve ESI "[A] gathering and her guidance must verify that all wellsprings of conceivably pertinent data are distinguished and put \'on hold,\' . . . To do this, guidance must turn out to be completely acquainted with her customer\'s record maintenance strategies and the customer\'s information maintenance design." Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (" Zubulake V")

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Duty to Preserve ESI "[C]ounsel ought to discuss specifically with the \'key players\' in the suit, i.e. , the general population distinguished in a gathering\'s underlying revelation and any resulting supplementation thereto. Since these \'key players\' are the \'workers prone to have the applicable data,\' it is especially critical that the safeguarding obligation be imparted unmistakably to them." Zubulake V , 229 F.R.D. at 433-34 (S.D.N.Y. 2004)

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Duty to Preserve ESI "A gathering\'s disclosure commitments don\'t end with the execution of a \'prosecution hold\' – despite what might be expected, that is just the starting. Counsel must manage consistence with the prosecution hold, checking the gathering\'s endeavors to hold and create the pertinent reports." Zubulake V , 229 F.R.D. at 432 (S.D.N.Y. 2004)

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Duty to Preserve ESI "At last, advice ought to educate all representatives to create electronic duplicates of their applicable dynamic records. Counsel should likewise ensure that all reinforcement media which the gathering is required to hold is recognized and put away in a protected spot." Zubulake V , 229 F.R.D. at 434 (S.D.N.Y. 2004)

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Duty to Preserve ESI Failure to legitimately safeguard ESI can have serious results for both customer and advice As noted, 25% of reported e-revelation choices included authorizations for misusing and absence of record maintenance approaches

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The Consequences of a Failed Litigation Hold "A spoliation approval is appropriate where: (1) a gathering has an obligation to protect proof since it knew, or ought to have known, that suit was up and coming, and (2) the unfriendly party was preferential by the annihilation of the confirmation." Ernest v. Lockheed Martin Corp. , 2008 U.S. Dist. LEXIS 59985, at *3 (D. Colo. July 28, 2008) Some states perceive spoliation of proof as a free tort See, e.g., Hadi v. State Farm Ins. Co. , 2008 U.S. Dist. LEXIS 28177, at *6 (S.D. Ohio Mar. 11, 2008)

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Duty to Preserve ESI Possible punishments Default Judgment Krumwiede v. Brighton Assoc., 2006 U.S. Dist. LEXIS 31669 (N.D. Sick. May 8, 2006) Monetary authorizations against both customer and advice In re September eleventh Liab. Ins. Scope Cases , 234 F.R.D. 114 (S.D.N.Y. 2007)

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The Collection of ESI Involve contradicting counsel in making "catchphrase" pursuits to distinguish responsive reports "Recognizing significant records and working out specialized techniques for their creation is a helpful undertaking, not part of the ill-disposed give and take." In re Seroquel Prods. Liab. Litig. , 244 F.R.D. 650, 660 (M.D. Fla. 2007)

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The Collection of ESI Courts are hesitant to second figure a gathering\'s very much contemplated "watchword" looks "… interaction, at any rate, of the sciences of PC innovation, measurements and semantics… ." United States v. O\'Keefe , 537 F. Supp. 2d 14, 24 (D.D.C. 2008)

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The Production of ESI Court can confine revelation of ESI where it would put an undue weight on the delivering party Burden of verification is on the gathering endeavoring to avoid generation

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The Production of ESI Is the ESI Reasonably Accessible? Three elements the Court will measure: (i) Less oppressive and less costly option sources (ii) Previous chance to get the data through revelation (iii) Does the weight or cost exceed the probable advantage

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The Production of ESI No unmistakable standard for "sensibly open" Reproduction of messages at an expense of $37,500 was sensibly available PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66767 (N.D.N.Y. Sept. 7, 2007) Production that would cost $80,000 not sensibly open W.E. Aubuchon Co. v. Benefirst, 2007 U.S. Dist. LEXI 44574 (D. Mass. Feb. 6, 2007)

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The Production of ESI "[I]t is not a legitimate ground for complaint that pertinent, non-favored, electronic information can be created in paper structure, when the asking for gathering ha

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