Electronic Discovery Institute Course - Class 11 - Collection of Electronically Stored Information

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 August 18, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

The faculty for this course are Anthony Knaapen, a former manager of discovery at the Chevron Corporation; Edwin Larkin, a partner at Harter Secrest & Emery LLP; and Dawson Horn, the deputy director of electronic discovery at AIG.

Collection is where material is obtained to see if it is responsive to discovery requests. It comes after the preservation stage of the EDRM. The volumes of data are growing exponentially which makes understanding standards of proportionality more important. The steps followed in the collection process should be documented.

Individual custodians can be asked to self-collect ESI. The corporate IT group can remotely grab data off servers. The third method is to hire a vendor to perform the collection. The last option will allow a third party witness to testify about the collection process.

There are different types of collections which vary according to the type of suit involved. Self collection may be sufficient in cases involving contractual disputes.

MD5 hash values are used as fingerprints to identify the documents that are collected.

Forensic collection is appropriate where there is a question about the authenticity of the data.

In a large corporation that has to address lot of different legal matters, it's advisable to have an in-house e-discovery team rather than engaging an outside vendor.

Any business will have an array of information distributed across different platforms.

A survey may be given to individual custodians to ask them where they store their work data. There are lot of different places for data to hide.

The changes to the Federal Rules of Civil Procedure encourage collection and is reasonable and proportional.

The key custodians with the most ESI must identified. Documents may have to be collected solely for internal investigations.

Outlook .pst files present a special problem in electronic discovery. These email archive files are difficult to process. It's important to make sure that employees have not saved email data in these files where they can't be located.

Metadata is information concerning documents. It can show when the last time a person accessed an email was.

A large enterprise will collect a lot of duplicative data. Each document has a special hash value that identifies it as a unique document.

Data sampling is a tool that will be helpful in situations with a large number of custodians.

The costs of collection are dependent on how long it must be preserved, and who is available to perform the collection. The review costs for having a firm going through thousands of documents is very expensive. It will usually take up most of the cost of discovery, so it's wise to narrow down the collected data as much as possible.

A litigant can apply proportionality to the litigation process. The first step is to have good faith discussions with the other side. The cost of collection may exceed the amount at controversy. If data is not reasonably accessible, a cost shifting model may be appropriate.

A corporation should follow internal guidelines for the collection of ESI. Courts will evaluate a company's good faith in complying with orders based on its adherence to its own policies.

Lawyers must understand the retention policies followed by their clients.

Parties often fail to collect ESI without altering it. Advance planning for the collection process will save a lot of trouble in the long run.

Electronic Discovery Institute Course - Class 10 - Expectations of the Court: Rule 16 & Rule 26(

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 August 12, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

This course on court expectations in Rule 16 and Rule 26(f) conferences is taught by Judge Xavier Rodriguez of the Western District of Texas; Magistrate Judge Elizabeth LaPorte of the Northern District of California; and Christopher King , the head of its electronic discovery practice at Dentons.

King said that the Rule 26(f) conference are conducted for the purpose of discussing the phasing of discovery, the form of production, search methodologies, and the types of ESI. Judge Rodriguez said the Rule 26(f) (or meet and confer) must take place 21 days before the first conference with the judge.

The parties should focus on the scope of discovery. Lawyers may not have much information about the scope of ESI to get very specific at the Rule 26f conference, so they may agree to meet later to discuss a ESI protocol. A clawback order under FRE502(d) should also be discussed. Counsel should also discuss limits on the number of depositions and interrogatories. Judge Rodriguez said that most judges will expect a conversation about who the likely custodians are and whether or not the tiering of discovery is a good idea.

Judge LaPorte said her court has a checklist for the 26(f) conference. It includes the scope of preservation and putting discovery outside a certain date range off limits. Under FRCP 1 the parties are encouraged to cooperate with each other. The parties should try to reach agreement on as many issues as possible.

The key to preparing for a Rule 26(f) conference is early case assessment - or getting on top of the facts of the case, according to King. ECA when done right involves a lot of work early in the case, which will pay off in the long run, especially in terms of cost effectiveness.

Judge LaPorte said each party should be familiar with their own information systems. The parties should also consider how the case can best be resolved, whether through settlement or at trial.

During initial disclosures, parties have to disclose the names of parties involved in a case, the location of documents they will use to support their claims and defense They also need to disclose insurance coverage related to the case. The disclosures must take place 14 days after the meet and confer. Judge Rodriguez thinks it would be more helpful for this disclosure to be required at the same time as the meet and confer. The goal is to reach a just and speedy determination of the issues at hand. Initial disclosures include a reasonable calculation of damages. These calculations must be updated during the case.

ESI disclosures usually don't come during the initial disclosures. If a judge requires them, a party may consider asking to defer them until an ESI protocol is agreed to.

A discovery liaison may be appointed in many jurisdictions. Its role will vary from case to case. Generally, a liaison is someone with technical knowledge about the client's systems and data. The person should be prepared to answer the judge's question about the ESI to be involved in the case. Counsel usually don't educate themselves sufficiently on these issues, but liaisons are not required in all cases. Someone from an IT department may be the discovery liaison in a case.

Judge LaPorte said that a discovery liaison can suggest alternative and cheaper means of obtaining discovery

In addition to counsel, vendors or technical specialists may participate in Rule 26(f) conferences. Judge Rodriguez says that there is a debate on the wisdom of bringing IT professionals to the meet & confer. Some attorneys worry that they will disclose too much information.

Privilege issues at Rule 26(f) conference concern whether or not the parties should enter into a FRE 502 clawback order. The preparation of a privilege log may be very time consuming. Some jurisdictions encourage the preparation of a categorical privilege log. Protective order can be prepared that restrict who can see certain documents.

There is a movement to speed up the discovery process. The tiering of discovery sometimes starts with the person most knowledgeable about the case. Phased discovery is the most effective way to speed up the process. It involves addressing different issues one by one. The first phase might consider foundation documents - the production of due diligence documents.

Judge LaPorte noted that her court has a model electronic discovery order. The parties can agree on the number of hours of depositions to be taken, and anything which may be helpful to the resolution of the case.

Judge Rodriguez said the use of TAR should be discussed at the Rule 26(f) conference. The use of keywords can also be discussed. Counsel may not have had sufficient time to discuss the use of TAR with their client, or they may not wish to educate the other side about the advantages of predictive coding.

The question of how transparent a party should be at the Rule 26(f) conference involves asking about the judge's expectations. Information about how the judge handles these conferences should be available on their site. Parties should check on whether or not the judge has endorsed the Sedona Conference proclamation. Judge LaPorte said there was no duty to waive privileges, but parties would usually be wasting time conducting discovery about discovery. Judge Rodriguez said that transparency was a means to achieve the cost effective resolution of a case. A party will be held accountable for deception.

The parties should prepared for the Rule 16 conference so the discovery can be conducted cheaper and faster. The goal of the 26(f) conference is to reach a plan that resolves a case justly, quickly and inexpensively. Parties should consider what ESI can be released from legal holds. Judge LaPorte warned parties not to make misrepresentations to a judge when they did not have sufficient knowledge.

Rule 16 conferences usually take place with all parties in the courtroom. The parties will be asked to discuss the proportionality of the discovery, and whether or not a clawback agreement will be entered into. The conference may also be referred to as a case management conference. The Rule 16 conference is a scheduling conference - it is the first time the parties appear before the court. Some judges may set a trial date at the conference.

The goals of the Rule 16 conference may vary from judge to judge. It's important to research the judge and find out how they handle these conferences. Judges may have forms that they expect the parties to complete in advance.

The 2015 amendments to the Federal Rules of Civil Procedure expedited most deadlines by 30 days. The parties are encouraged to discuss the case early on. Proportionality has been assigned greater importance.

Judge Rodriguez likes to keep costs to a minimum and will not always require out of town clients to attend the Rule 16 conference. He said that it may be a good idea to have an IT professional present at the conference.

Rule 16 requires the discussion of the preservation of ESI, the form of production, and the inadvertent production of privileged documents. The merits of the case can also be considered. The judge should try to discourage wasteful practices.

Counsel can use the Rule 16 conference to their advantage by establishing a relationship with the court. It provides an opportunity to begin implementing a strategy for the case. An attorney may want to raise issues in a particular order. Statute of Limitation defenses may be considered before other discovery issues. It may possible to conduct sampling of some ESI sources, like laptops, in order to see whether some discovery is necessary. Judges may ask for a detailed theory of the case and ask detailed questions about how many witnesses will be called, how many depositions will be taken, and how long it will take the parties to get the case ready for trial.

Judge LaPorte said that if a judge can't resolve some issues at the conference follow up letter briiefs may allow her to reach decisions. Judge Rodriguez said that judges would expect to see a discovery plan from both parties, if they had not agreed to a single plan. Questions about email servers, BYOD devices, text messages are all very common at the Rule 16 conference.

Electronic Discovery Institute Course - Class 10 - Rule 26(f) Conferences and Meet & Confers

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 July 30, 2017. Go to https://www.lawinstitute.org/ to sign up for it.

The course on Rule 26(f) conferences and meet & confers is taught by David Kessler, the chair of a law firm's e-discovery practice group; and Michael Berg, counsel for the DISH Network, LLC in charge of electronic discovery and information governance.

• What is a Rule 26(f) Conference?

It is a required under the Federal Rules of Civil Procedure and state rules provide for similar conferences. The 26(f) is an opportunity to resolve technical problems and resolve discuss what is at stake in the litigation. It is not necessarily a single meeting. There are likely to multiple communications about the subjects to be addressed under Rule 26(f). A discovery plan and report must be sent to the court before the 26(f) conference. Meet and confers may take place on a weekly basis during the discovery period. Disputes should be resolved before they reach the court if at all possible.

The Rule 26(f) conference is more far reaching than a typical meet & confer. The 26(f) will lead to agreements that are more binding.

• Planning for a Meet & Confer

A meet & confer requires the attorneys to be prepared on both the facts and their opponents' positions. They need to know the standard of reasonableness. Both sides should try to reduce the transactional costs of litigation. A good amicable resolution by the parties is almost always preferable to bringing problems before the court. It will be difficult for a judge to understand the complexities of discovery issues facing particular parties. Judges should however be engaged early about issues they may need to address. Many lawyers are fearful of bothering judges too much about discovery. A good attorney will be able to determine when an opponent is being unreasonable and the time is right for a judge to intervene.

Whatever is discussed should be documented so it can be put in a case management order later.

• What Should Be Discussed at a Meet & Confer?

A really important part of the 26(f) is to develop trust with the opposing counsel. Attorneys should ask themselves if additional claims, defenses or parties will come up. There are a lot of transactional issues which can be broached at the beginning. Phased discovery may be appropriate. It may be possible to limit discovery by taking some subjects off the table, but this should be discussed in advance with the client. Kessler is advocate of getting problematic issues out in the open early on. This is something that courts appreciate.

FRE 502 concerns the waiver of privilege - there is nothing controversial about entering into an agreement about the clawback of privileged documents, and this can be accomplished quickly at the 26(f)..

Non-complex issues can be resolved and put aside so only a few specific issues can be brought to the court.

The parties should discuss the scope of the case - what is relevant and what is not. The parties should discuss data sources that either won't be preserved or won't be searched. It's harder to discuss a data source that won't be available later on in the case.

• Who Should Participate in the Meet & Confer?

It may be a good idea to bring a practice support analyst from a firm or vendor. The meet & confer may be a good time for specialists to iron out technical problems. It's preferable to have attorneys who are technical proficient.

• The Role of the Client in a Meet & Confer

The meet & confer process is usually handled by the attorneys for each party, but the client has to be knowledgeable about this issues to be discussed beforehand. The lawyer cannot disclose certain things without the permission of the client.

Many of Kessler's clients don't like communicating directly with opposing parties. They are more likely to get caught up with emotional issues.

Burg observed that the role of the client is to provide the attorney with necessary information. They need to open and honest.

• Cooperation

Cooperation is emphasized in meet & confers. It came to the fore with the Sedona Cooperation Proclamation. Cooperation at its heart means that one is not doing anything with regards to an opponent that is the for purposes of delay or harassment. Cooperation means that the parties should minimize the costs of getting to what is really important in the case. Cooperating on discovery should be done in such way as to not undermine advocating for the position of the client. The lawyer needs to explain to a client why providing information in discovery is to their advantage in the case. The lawyer should point out that if the opposing party doesn't reciprocate they will look uncooperative in the eyes of the court.

Cooperation involves staying focused on the issues in the case. By being more prepared than an opponent - with aggressive transparency - an attorney can drive the conversation for their client.

Some clients are concerned that by volunteering information they are not required to produce, they will be forced to disclose more and more as time goes by. Attorneys can suggest a strategy of gaining procedural advantages in order to force a favorable settlement.

It's important to separate transparency from cooperation. Cooperation requires the parties to participate equally.

• Preparing for a Meet & Confer

Preparing for a 26(f) conference is a multi-stage process. One should never discuss something that has not been vetted with the client, and when one does not have all of the facts.

Problems can arise at 26(f) conferences when both sides have not done sufficient investigation. It may be a good idea to disclose search terms at the 26(f) conference, but an attorney may be hesitant if they don't know what data will be returned with these terms. Discovery should be focused on getting important documents with the least cost and effort.

Adequately preparing means knowing the scope of the claims, who the relevant custodians are, and understanding the relevant data systems.

• Disclosing "Not Reasonably Accessible" Data Sources

It's probably a good idea to disclose not reasonably accessible data sources at the 26(f) conference. Rule 26(b) addresses not reasonably accessible data. If there are locations that an attorney knows are going to be contentious and cannot be accessed easily, the issue should raised earlier rather than later with the court.

• Discussing Search Terms & TAR Processes

A party is not required to disclose search terms or the use of TAR at the 26(f) conference, but many attorneys choose to do so.

• Common Mistakes

Attorneys often skip carefully reviewing the complaint and the answer in determining the scope of the case.

Money should not be regarded as the only issue in proportionality.

Parties who are unprepared will either fail to reach any agreement, or make an agreement without understanding the effect of it.

Checklists should be not be reviewed by rote. There may be unique circumstances for a particular case that justifies deviation from standard practices.

• Conclusions

The most successful conference will follow an agenda, so parties don't waste time fighting over one or two issues. It's a good idea to have the conference in person, because it's harder for parties to become uncivil with one another.

Issues should be framed out ahead of time, and documents can be exchanged with the opposing party to facilitate this process.

Courts look unfavorably on letter writing campaigns, but it is nevertheless important to document what the parties agreed to. Some attorneys like to tweak their account of a discussion in a letter, but this isn't necessarily a good idea. It's important to appear as objective and reasonable as possible before the court.

Parties should always keep the conversation going and assume that their opponent is acting in good faith. Litigation shouldn't be about discovery - a party that's confident about its case need not worry about exchanging information.