March 3rd Notes

Litigation Basics
March 3, 2010

NEWS
-Bring resumes tomorrow for Law Dawgs Career Day
-Mediation Briefs due tomorrow
-Guest Speaker tonight
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 Federal e-Discovery Rules
Greg Shelton
Senior Legal Counsel, Physio-Control, Redmond

Shelton started working on electronic discovery projects at Skadden Arps, the biggest law firm in New York City, eleven years ago, when e-discovery was in its infancy. He moved to Seattle four years ago and developed an electronically stored information legal consulting practice within Williams Kastner, where he assisted companies with litigation preparedness, information management, and responding to litigation/investigation requests. Shelton now works as an in-house attorney at Physio-Control in Redmond. He has numerous publications on electronic discovery and is a sought-after local speaker on the topic.

Certificate in Electronic Discovery Management
http://www.extension.washington.edu/ext/certificates/edm/edm_gen.asp


Slides from the lecture:
http://www.soulee.net/Paralegal/Don%27t%20Let%20the%20Terabyte%20You.pdf

http://www.soulee.net/Paralegal/Federal%20e-Discovery%20Rules.pdf


They're also on the front page of the Google Groups in the Files section.
http://groups.google.com/group/uwparalegal/web/Don%27t%20Let%20the%20...

http://uwparalegal.googlegroups.com/web/Federal+e-Discovery+Rules.pdf...
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Records Management Program
-identify and control records to protect business interests
-reduce burden, cost and risk of maintaining records
-destroy documents that have no legitimate business interest
-companies keep too much emails
    -means lawyers push to get all that information
1 terabyte: 500 boxes of documents

Legal Hold
-policy must be suspended when the company "reasonably anticipates" a claim, investigation, or litigation
-applies to both sides

-assume that what you destroyed was relevant to the case and was harmful to the defendant

Civil Rules
-amendments for e-discovery came in 2006
-started in 1996
-Rules 16, 26-27, 45
-can now inspect computer systems

Dec 1, 2006 in effected
-ESI included mandatory initial disclosures
-Counsel required to discuss ESI at initial pre-trial conference
-Encourage early cooperation of counsel

-empower courts to incorporate agreements in CMO
-limited protection from production for ESI
-address inadvertent production
-protection from sanctions from deletion/loss in regular course of business
-safe harbor from sanctions (only relates to rule 37)

-do not have to produce unduly burdensome items
(old systems, electron microscopes necessary)
-easier to turn over documents you don't want to turn over
    -run a script to find the documents

Methods of searching
-keywords searching
-concept searching (algorithms)

Federal rule 502
-inadvertent production
-w/ reasonable steps to stop and return, you can get them back
-took out subject matter waiver

New Terminology
-Electronically Store Information
-not defined in new rules
-flexible enough to encompass future changes and developments
-update boilerplate document requests and interrogatories

Rule 1. Scope and Purpose
-These rules govern and procedure in all civil actions
-construct just, speedy, and inexpensive

Early Attention to e discovery
Rule 16, 26(a) and 26(f) impose obligations on parties and court
-Rule 16
    -permits courts to deal with e discovery in scheduling orders
    -permits courts to incorporate agreements regarding inadvertent production
    -mandates a conference in Federal Court
        -no mandate in WA
    -purposes are in line with Rule 1
        -allows judge to take control of management       
        -discourages wasteful pretrial activities
        -improves the quality of the trial
        -facilitates settlement
    -scheduling order must be issued 90-120 days
        -provide for discovery of ESI
        -adopt a party agreements about privilege

Rule 26(a)
    -requires parties to disclose a copy of or a description of ESI
    -and tangible things in possession and custody and control

Rule 26(f)
    -preservation of evidence
    -21 days before rule 16 conference
    -parties must consider
        -nature and basis of claims
        -settlement
        -26(a) disclosures
        -discovery plan
        -ESI, including form of production
        -issues about privilege
        -clawback agreement
        -limitations on discovery

-need to bring IT personnel with you to the conference or learn it yourself

CR34: requests for production
-if they don't have the information subpoena CR45
    -happens a lot since they are third parties that hold the information
    -for access to servers and information

Inspections and Sampling
    -test or sample any designated documents, ESI
    -not an effective discovery tool
        -disruptive, requesting party not familiar with system, encroaches on protections
    -you send your IT person to look at their system
        -they don't like that due to hacking and what occurs in that
        -not meant to be routine
-Manual for Complex Litigation
4th Sec. 11.446; compromises privilege, trade secrets

Form of Production
-the way it is maintained
-"form on forms in which ESI is to be produced
-producing party can object must specify form it intends to use
-requesting party can them move under rule 37(a)
-agree during 26(f) conference and avoid the issue

.tiff and .pdf seem to be the preferred handling
-accompanied with the data file

-native files
    -come in their true format like .doc or .sql
    -editable so things can change in them
    -metadata comes with all that but can easily be adjusted
    -just hash it
        -hashing puts a computerized tag on it that shows alterations
        -use depends on how tech savvy you are

-always be sure to encrypt and delete privileged information and alter .jpg/.tiff files

Two-tiered discovery
-Rule 26(b): court may limit frequency & extent
-court must limit frequency and extent if a burden
    -26(b)(2)(B) allows a party to withhold info it identifies as not reasonably accessable because of undue burden of costs
    -disaster recovery back up tapes

-must be disclosed in sufficient detail to evaluate burden v. benefit
-IT staff should be prepared to justify withholding information

Balancing test-CR26(b)(2)(B)
-how clear you are in your request
-importance and useful information
-resources available

Aubuchon v. BeneFirst (D. Mass. 2007)
-medical bills were not reasonably accessible
-court undertook good cause analysis
-benefirst must produce the request due to their sloppy filing
-made this mess, you must fix it

Capitol Records v. MP3Tunes (SDNY, Aug. 13, 2009)
-2 terabytes of data on their servers no e discovery software
-burdensome relied on Aubuchon to conclude data is not reasonably accessible
-made this mess but not make you fix it (figure it out and share costs)

Petcou v. CH Robinson Worldwide
-all docs relating to porn on the computer
-not reasonably accessible
-deleted email is around for 8 days, 10 days after employee leaves
-back up tapes exchanges every 3-5
would costs $80,000 to get information
-No good cause
-rightfully deleted information

Cost Shifting
-cost may be shifted to requesting party if source is not reasonably accessible
-requesting party: share or bear costs
-responding party: costs related to review
-usually look at the balancing test

-there is a lot of looking at other cases to make a decision

Privilege and Work Product
-26(b)(5)(B)
-formalizes procedures
-if docs are inadvertently produced and notify for basis of privileged
-if disclosed must take steps to retrieve
-must work promptly to get this information

Privilege
-rule 26 does not modify substantive law waiver

evidence rule 502
-articulates test for determining extent of waiver inadvertent production not a waiver
-selective waiver
-court ordered non waiver
-need to look at state rules because things differ greatly
-not limited to ESI
-early agreements on dealing with inadvertent production can be critical
-judge can enter them in pretrial order
-consider clawbacks and quick peeks
-privilege logs

Rule 45
-used to compel discovery from non parties
-subpoena ad testificandum
-subpoena duce tecum
-clerk of court or attorney must issue
-certain rules in place to protect non party
-issuer must avoid imposing any costs
-objections before time for compliance or 14 days
-serving party may move to compel

Protections
-quashing modifications required
-quashing modification permitted
    -seeks information privileged

Duties
-very similar to 34
-ESI as ordinarily maintained
-same ESI need not be in different format
-privilege still applies

two tiered production
-documents readily available
-not reasonably accessible information

Depositions
-with ESI, the IT people are getting called in for depositions
-"discovery on discovery"
-CR 30(b)(6) depose an entity, usually an IT person, designate topics with particularity
    -becoming common
Protective Orders  Rule 26
-Compelling Rule 37

Rule 37 says now:
-didn't give it in time can't use it yourself
-can't put sanctions on ESI info found later that was deleted routinely or an unforeseen problem
    -daily use of computers, email janitors, programming
    -protects entities that peer to peer (good faith operation)

-the inability to produce what the other side thinks you should have