Electronic Discovery Institute Class 32: eDiscovery Challenges in Specific Practice Areas: Product L

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on September 30, 2018, Go to https://www.lawinstitute.org/ to sign up for it. The course entitled, eDiscovery Challenges in Specific Practice Areas: Product Liability Litigation is taught by Chris Liwski, senior corporate counsel for Sanofi US; Elizabeth Asali, assistant general counsel for GlaxoSmithKline; and Jess Weisshaar, an attorney specializing in data governance and products liability litigation at Shook, Hardy & Bacon LLP.

Introduction The biggest challenge for data collection conducted for products liability litigation is the number and variety of data sources that are like to be relevant. In a products liability case the safety and efficacy of the product are at issue. Email, network drives and database may all contain relevant data. Data is likely to be saved in many different places.

Unstructured Data & Mobile Devices Unstructured data may be very burdensome to collect. Email and marketing presentations are examples of unstructured data. Unstructured data is any data that is maintained in a manner that is not predefined. For products liability cases, companies often have up to half of the relevant data in an unstructured form. Unstructured data is often difficult to search. An individual may accumulate large numbers of individual files on a local drive or a share point site. It may be necessary to ask custodians to preserve unstructured manually.

Mobile devices may contain data outside the control of a company. The data will not be backed up on a company's servers. A company should have a good data policy which allows them to access data on their employee's mobile devices. Parsing through business and personal data may be difficult. Some employees may only use mobile devices to access business email - which will be backed up elsewhere. Others will download and edit documents on their devices.

Communication at a company wide level is necessary to make sure that policies on data retention are followed. Legal hold notices sent to subsets of individuals should provide specific instructions on how to preserve data.

International Considerations

Unique data preservation challenges arise when data exists in different languages in a single company. Language barriers may also be significant when deciding which search terms to use for electronic discovery. The translation of documents may increase costs significantly. The American form of discovery will be something that employees in foreign countries will not be accustomed to. Employees may misinterpret preservation notices as indicating that they have violated the law. Foreign employees should be instructed that there may be consequences for not complying with the obligation to preserve data.

Some countries may have blocking statues that will not allow data to be sent to other countries without following certain procedures. Such rules may make it difficult to meet the deadlines imposed by discovery orders issued by U.S. courts. A local attorney should be engaged in order to ensure that local data privacy laws are not violated. European countries define data privacy more broadly than the United States. Individual permission is usually required to access data. Laws may require that data processing be performed in the foreign country in which it is collected.

Further Considerations

Product liability attorneys often bring cases many years after the product is acquired by a customer. The customer can file a suit only when they become aware of the injury it caused. It may be difficult to find data about products that were researched and developed in the past. Products are used by plaintiffs for years after they are first sold. Relevant data may be 10 to 30 years old. Companies may no longer use the same systems to store data. Data may be archived in forms that are difficult to access. The cost of preservation and processing may exceed the value of an individual case. Discovery costs are usually the majority of the budget for a case. It is not wise to spend more to defend a case than was at stake in the first place. Companies must decide how to perform discovery cheaply.

Electronic Discovery Institute Class 31: eDiscovery Challenges in Specific Pracitce Areas: Requestin

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on September 15, 2018, Go to https://www.lawinstitute.org/ to sign up for it. The course entitled, eDiscovery Challenges in Specific Practice Areas: Requesting Parties is taught by Ariana Tadler, the chair of Milberg LLP's eDiscovery Practice Group; and Annika Martin, a partner with Leiff Cabraser LLP

The Role of the Requesting Party Much of the information received by a requesting party will have already been processed by the producing party. It will be necessary to move through the data as quickly as possible to get the data necessary to prove the party's case. Discovery should be limited to relevant data - it should not be a data dump. A requesting party should work with the opposing party to streamline its production. A requesting party should have worked out its theories of a case before making a request. It may not be possible to know at the outset of a case what kinds of information exist. It is not in the interest of a requesting party to get a lot of irrelevant documents. It is mistake to try to get everything, because it will cost time and money to review everything.

Producing Party vs. Requesting Party Responsibilities with respect to discovery are reciprocal, but Defendant corporations will usually have a much higher volume of information than plaintiffs who bring suits against them. The producing party's goal is to produce only what is necessary and nothing more. They do not want to produce work product or information which may impact privacy rights.

Cooperation in Pre-Trial Conduct The first interactions with an opposing counsel should set a mood of collaboration and trust. It is important to be ready to cooperate and be willing to have an open dialogue. When cooperation was originally encouraged in the discovery process, a number of parties objected to the idea. However more and more attorneys have agreed with the aims of the Sedona Cooperation Proclamation and acknowledged that not every aspect of litigation needs to be adversarial. There are cost, resource and time components that effect both sides. Discovery will increase the overall lifespan of a case if the parties don't reach an early agreement about what data needs to be preserved and produced. Judges will be glad if fewer disputes are brought to their attention.

Managing Discovery with Federal Rules

The new federal rules for discovery which became effective on December 1, 2015 have encouraged cooperation by specifically referencing it in the committee notes to the FRCP. Parties need to be very specific in their objections. The concept of judicial management is embedded in the new amendments. When judges actively manage cases, the parties are more likely to cooperate. They will reach agreements throughout the case to make the litigation process smoother. Ms. Tadler noted that some judges have not yet familiarized themselves with the changes to the FRCP. The new rules encourage the parties to meet and confer more often, and serve discovery early.

FRCP 34 now prevents the parties from making boilerplate objections to discovery requests. FRCP 26(b)(1) now requires discovery to be proportional. In the first six months since December 2015, more than 100 opinions have addressed proportionality concerns. Tadler has had her team focus on honing discovery requests, and being less likely to accept blanket objections.

Preparing for Meet-and-Confer & Status Conferences Tadler believes the meet and confer may be the most important part of discovery. The parties should reach agreement about the form of production, and which custodians will be involved, early in discovery. It's important to make one's requests very targeted. She makes reference to the 'Jump Start' outline published by the Sedona Conference which she co-authored. It helps parties on both sides of the 'v' with what questions they should ask in the early stages of discovery. She believes it's a good idea to have someone with technological expertise at the meet and confer who can ask questions about another party's data systems. Tadler likes to engage in multiple meet and confers.

It is important to come into a meet and confer prepared to address a clear set of goals. Parties need to get ready for the status conference before the court. It is necessary for parties to tell the judges which areas they have reached agreement on. If the parties confer enough, they may find they have fewer disagreements than they imagine they do. Parties should also provide a judge with a forecast of how they see discovery proceeding.

Strategies to Deal with Scope-Related Disputes When conflicts arise, there are many strategies that can be used to defuse them. Tadler likes to keep her opponents engaged in an ongoing conversation. She likes to be clear about the compromises she has offered and inquire about what compromises the opposing counsel can make. A record of such efforts can be reported to the court, and help achieve a better success rate on motions before the court.

Determining the Scope of Preservation The preservation duty may attach before outside counsel becomes involves in a case. Discussions about the scope of preservation, such as whether or not back-up tapes can be written over, may have to take place as soon as it is apparent that litigation is possible.

ESI Protocols

An ESI protocol should be a jointly agreed to stipulation that is the result of multiple meet and confer sessions. Parties may agree to exchange a list of key custodians, the most likely repositories of information, and technical specifications for the form of production for ESI before the actual production deadlines. Not all information needs to be produced in the same format. Databases often contain live data that is constantly in flux. One of the biggest challenges that Tadler has seen recently comes from parties that don't believe that ESI protocols are necessary. The parties should reach agreement about certain basics at the outset of litigation so they don't have to waste time later on. Tadler has negotiated four ESI protocols recently - three of them took no longer than three weeks to finalize, and the fourth has been the subject of ongoing negotiations involving the court for more than 9 months.

Production Format

Productions should be made so that the information can be used by the other side in a way similar to that which the producing party has used it. It's important that a requesting party have access to the meta data for electronic files. Attorneys need to be aware of how accessing native files can alter their meta data.

Technology Assisted Review (TAR) TAR has been a great development for both producing and requesting parties. Tadler's spin-off ediscovery company, Meta-e, applies TAR tools to productions to get to the best information as quickly as possible. TAR can avoid the need to take many months to find hot documents, organize key documents, and determine where productions are deficient. In some cases, after running TAR, Tadler has been able to file deposition notices, or even summary judgment motions very early.

Strategies to Speed Up Production

There are a number of ways for a requesting party to get discovery more quickly. Tiered discovery should be considered in certain cases. Associates preparing discovery requests should ask someone who is not a lawyer to read them, see what they say, and then consider how they can be refined. Production comes out of a large universe of data that has been preserved. Transparent conversations should take place on what ESI an opposing party has preserved. Some attorneys may object on the basis that such information is work product. Tadler will then counter that they will have to justify why she should accept a smaller production. She has seen a shift recently in the extent to which senior partners must be involved in the discovery meet and confer process.

Martin notes that a 502(d) order can help speed along the discovery process, since it will allow parties to make productions without the fear of not being able to claw back privileged documents.

Rule 45 Subpoena Process Third parties must be brought under the jurisdiction of the court. A requesting party may go directly to a third party who has better access to an opposing party's information than the opposing party does.

Selecting & Managing Vendors A corporate client may have a relationship with a particular vendor that it wants to continue for reasons of efficiencies of scale. Requesting parties receive, digest, and prepare data for the next stages in litigation. Requesting parties will need different services from vendors that are not emphasized by producing parties. Requesting parties need to ensure that data hosted by vendors is secure.

Project Management

A party needs to determine what is useful, what is garbage, and what is hard to define as either. Tadler likes to have very experienced PMs working on her cases that understand the specific goals of requesting parties. A good PM may realize that a better tool exists that meets the particular needs of a plaintiff firm. Productions should be reviewed in a very intentional way, which is important for plaintiff firms because they work on a contingent basis.

Martin likes to consider dividing up productions based on what documents are useful for one of multiple claims in a case.

Data Security Issues Tadler noted that data breaches have occurred with increased frequency at law firms. Lawyers need to be trained to handle data in a responsible way and not just figure out how to best make use of it.

Conclusions When parties are forthcoming and transparent about their data preservation methods, ESI protocols may be reached very quickly. In one case where despite Tadler's objections a producing party chose to unilaterally select and implement search terms without any negotiation, she wound up a lengthy discovery dispute that was only resolved by filing a motion to compel with the court.

Indexing encrypted files in Windows

In Windows 7, on the control panel, you'll find the the 'Indexing Options' utility. This will give you the option to index encrypted files. After clicking ' Indexing Options' click on 'Advanced'. This window will appear:

Choose the option to 'Index encrypted files' and then rebuild the index. Now when you run searches in Windows Explorer files encrypted with the Windows NTFS Encrypting File System will be searchable.