Electronic Discovery and Digital Evidence in a Nutshell - Chapter VI Outline

Here's another installment of my outline of Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. An outline of the previous chapter was posted on January 12, 2017.

CHAPTER VI – PRODUCTION OF ESI - Request and production of ESI Governed by FRCP 34 - 34(b)(1) – request can specify the form of the ESI. - 34(b)(2) – response can object to the requested form; must state form it intends to produced in. Unless otherwise stipulated must produce documents as they are kept in the ordinary course of business or organize and label them according to the categories in the request. If request does not specify must be produced in form kept in the ordinary course of business, or a reasonably usable form. ESI need not be produced in more than one form. - ESI is distinguished by the fact that it can be produced in a number of different forms and is searchable and sortable.

A. RULE 34 FORM OF PRODUCTION (PAPER, IMAGES, NATIVES OR OTHER FORMS) a. Is production in PDF form acceptable? Dixon v. Experian (N.D. Ind. 2014) production of unsearchable PDFs. Motion to compel approved required ESI in its native format. b. Database Reports and Emails – PSEG Power v. Alberici (N.D.N.Y. 2007) Emails produced divorced from attachments. Court ordered re-production of emails with their attachments. c. Unless the requesting party states a clear preference (which may trigger negotiation if the responding party objects), the requesting party may be forced to accept whatever “reasonably useable” form the requesting party chooses. XL Specialty v. Bollinger (E.D. La. 2014) – 4M documents produced as unindexed by OCR recognizable images. Motion to compel native format was denied. d. Reasonably usable? Sedona Principle 12 – absent party agreement or court order production should be in form in which it is ordinarily maintained or reasonably usable, “ taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.”

B. RULE 34 ORGANIZATION OF PRODUCTION a. Are FRCP 34(b)(2)(E)(i) [requiring documents to be organized according to categories in the request] and FRCP 34(b)(2)(E)(ii) [if party does not specify form for ESI must produce in form used in ordinary course of business or reasonably usable form] mutually exclusive? b. Anderson Living v. WPX Energy (D.N.M. 2014) ESI produced as searchable PDFs need not be categorized because it was searchable. c. Venture v. Barrett (N.D. Cal. 2014) Goal of FRCP 34(b)(2)(E)(i) is to prevent a document dump, and applies to ESI as well as FRCP 34(b)(2)(E)(ii). Ordered initial production of ESI without an agreement as to form, to be re-produced custodial and organization information, and with load files containing metadata and searchable text. d. SEC v. Collins & Aikman (S.D.N.Y. 2009) form in which ESI is ordinarily maintained is not necessarily reasonably usable. Records must be produced in the compilations (175 organized file folders) already prepared by the SEC for their own internal review purposes, despite the SEC’s objection that producing the compilations would reveal attorney work product. The court held that production of a sprawling, disorganized database did not satisfy the requirement that the documents be produced in a reasonably useable form.

C. PRODUCTION OF METADATA a. Application metadata embedded in a file and system metadata used by file system to track file location, name, size, creation, modification and usage. b. Native format: associated file structure defined by the original creating application. c. Document metadata – information accessed via properties view. d. Embedded metadata – track changes or comments. e. User added metadata – includes annotations and subjective coding information. f. Vendor added metadata – data generated as a result of processing a document g. Williams v. Sprint (D. Kan. 2005) – metadata for Excel spreadsheets was scrubbed prior to production and certain cells locked so they could not be accessed. Metadata was not specifically requested. Court held that ESI should be produced with metadata intact unless the party timely objects to its production, parties agree that it should not be produced, or producing party requests a protective order. Party should have reasonably understood request to mean spreadsheets should be produced with their metadata intact. Ordinarily maintained is not synonymous with native format. Data may be archived for long terms storage. Routine migration may result in loss of metadata. If metadata is relevant to claims or defenses it must be specified for preservation purposes.

D. PRODUCTION OF DATABASES a. Aguilar v. ICE (S.D.N.Y. 2008) – Plaintiffs requested production of ICE database and ICE produced text searchable PDFs. Court held that metadata is more critical to understanding a database. b. Sedona Conference Six Database Principles i. Scope of Discovery – only database fields that contains relevant information, not underlying application. ii. Accessibility and proportionality – not all data in database is equally accessible. Parties should apply proportionality to determine marginal value and cost. iii. Use of test queries and pilots – to determine burden and benefits of collecting and production information iv. Validation – reasonable measures to ensure that collection is complete and did not alter the data. v. Data Authenticity and Admissibility – validation of collection does not make the information true or authentic – these are separate issues. vi. Form of Production – the way in which the requesting party intends to the use the data is important in determining the form of production.

E. PRODUCTION OF DIGITAL IMAGES AND LOAD FILES a. Production of ESI in form in which it is ordinarily maintained may present burdensome privacy or privilege concerns, or difficult to use without proprietary software, and so must be produced as digital images. b. Particular fields to be included vary and should be negotiated by the parties depending on the needs of the case.

F. ON-SITE INSPECTION AND MIRROR IMAGES a. Court ordered inspections are allowed under FRCP 34(a) to mirror image an opposing parties hard drives. b. FRCP 34(a) does not create a routine right of access. Courts must balance need for relevant evidence against disclosure of privileged material and undue intrusiveness. c. Inspection protocols should: i. Forensic expert will obtain the images ii. Images maintained by party whose drives were imaged. iii. Production party must have chance to remove privileged or non-relevant information. iv. Responsive data disclosed with privilege log. d. Ingrid & Isabel v. Baby Be Mine (N.D. Cal. 2014) – because response to requests was late and inadequate, court ordered plaintiff be given access to defendant’s computers by expert jointly retained by the parties. e. Schreiber v. Schreiber (N.Y. Sup. Ct. 2010) – courts will not order wholesale turnover of computer drive. No fishing expeditions. Will consider need for confidentiality of competitive materials, privileged materials, and inconvenience to owner. Necessary components of protocol: i. Discovery referee to supervise. ii. Forensic computer expert iii. Cloning procedure that prevents alteration or files and allows for recovery of files. iv. Scope of discovery – keywords and date range. v. First level review by producing party. vi. Second level review by requesting party. vii. Mechanism for resolving disputes by the referee. viii. Provisions for costs to be borne by the requesting party. ix. Fast track discovery schedule x. Provisions for retention and disposition of clone at conclusion of action. f. Mere conjecture or suspicion that an adversary has not produced discoverable information is not enough. g. Courts may deny request for imaging where the burden on the responding party is too great.

G. DISCOVERY FROM RULE 30 (b)(6) WITNESS WITH KNOWLEDGE OF DOCUMENT RETENTION AND PRODUCTION a. 30(b)(6) witnesses must testify about information known or reasonably available to an organization; not just personal knowledge. b. Majority rule is that scope of deposition is limited by relevance and privilege bounds of FRCP 26(b). Some courts have held that the requirement that a party noticing the Rule 30( b)( 6) deposition “describe with reasonable particularity the matters on which examination is requested” limits the scope of the deposition to the contents of that notice. c. IT professional or record retention manager is routinely designated as 30(b)(6) witness. d. In re Actos Prod. Liab. (W.D. La. 2014) – no one person familiar with all aspects of preservation and collection. Company hired consultant that interviewed many employees and made on-site visits. Court found that because consultant was never employee and showed no knowledge of IT procedures and interplay with litigation hold policy, Takeda did not act in good faith in designating him, and Takeda acted in bad faith as to destruction and deletion of documents and engaged in willful abuse of judicial process in attempt to conceal deletion and destruction.

H. PRODUCTION FROM NON-PARTIES PURSUANT TO RULE 45 a. Rule 26( b)( 2)( B) (not reasonably accessible data) is the same as Rule 45( e)( 1)( D). b. Rule 26( b)( 5)( B) (inadvertent disclosure of material) is the same as Rule 45( e)( 2)( B). c. Rule 34( b)( 2)( E)( iii) corresponds to Rule 45( e)( 1)( C). d. Rule 34( b)( 2)( E)( ii) is the same as Rule 45( e)( 1)( B) (form of production). e. Court must have personal jurisdiction to enforce FRCP 45 subpoena. f. Concept of possession, custody and control applies just as it does for FRCP 34 document request. g. Relief From Undue Burden or Expense – Rule 45 subpoenas may be subject to heightened scrutiny; courts will relief nonparties from substantial burden. h. Nonparty Preservation Duties - Third parties may have obligations to preserve evidence relevant to others’ litigation imposed by contract or other special relationship once they have notice of the existence of the dispute. i. Subpoenas of Internet Service Providers – Getting email, social media postings, etc. from ISP prohibited by Electronic Communications Privacy Act absent customer’s express consent. j. Legal Restrictions on Disclosure – i. HIPAA – privacy protection for health records. Title II of HIPAA provides extensive rules regarding the secure storage and exchange of electronic data transactions and requirements promoting the confidentiality and privacy of individually identifiable health information. ii. Computer Fraud and Abuse Act – illegal to access a computer without authorization or to exceed authorized access.

I. CROSS BORDER PRODUCTION ISSUES a. Aerospatiale Framework – Hague Convention is not the exclusive or mandatory procedure for obtaining evidence from abroad. Five factor test: i. Importance to litigation of requested info. ii. Specificity of request iii. Did info originate in U.S.? iv. Alternate means to obtain info? v. Would noncompliance undermine the important interests of the United States? b. Subsequent decisions added additional factors to the Aerospatiale test: i. Competing interests of nations whose laws are in conflict. ii. Hardship of compliance iii. Good faith of party requesting discovery. c. Privacy and Data Protection Laws i. EU laws regulate the collection, processing, transfer and disclosure of personal information. ii. In the Matter of a Warrant to Search a Certain E-Mail Account Controlled by and Maintained by Microsoft Corp. (S.D.N.Y. 2014) emails stored on servers in Dublin. Court held that SCA warrant operates like a subpoena “Even when applied to information that is stored in servers abroad, an SCA Warrant does not violate the presumption against extraterritorial application of American law. d. Foreign Discovery in the United States – i. 28 U.S.C. 1782 procedural mechanism. ii. Certain Funds, Accounts and/or Inv. Vehicles v. KPMG (2d Cir. 2015) – discovery from American firms denied because it was not established that it was for use in foreign proceedings and other proceedings were not within reasonable contemplation. e. Sedona International Framework and Principles i. Due respect should be demonstrated to foreign data protection laws. ii. Where full compliance presents a conflict party’s conduct should be judged under standard of good faith and reasonableness. iii. Preservation or discovery should be limited in scope in order minimize conflict of laws and impact on data subject. iv. Where conflict exists, a court order or stipulation should try to minimize it. v. Data controller should be prepared to demonstrate that data protection obligations have been addressed and safeguards instituted. vi. Protected data should be retained only as long as necessary to satisfy legal and business needs.