National Business Institute Seminar
Operate in Compliance with FRCP Rules Changes and Eliminate the Fear Factor
Charles Skamser
Vice President of Business Development
Trial Solutions
Email: cskamser@trialgraphics.com
Cell: 208-949-0301
Standard Disclosure
We are not giving legal advice
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 Agenda
 What’s the Big Deal
 Rule 16 and 26: Preliminary Conferences
 Rule 26: Changes for Reasonably Accessible Data
 Rule 26: Post Production Privilege Assertion
 Rule 33 and 34: Specification of Form
 Rule 45: Subpoena
 Summary
 Questions and Answers
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 What’s the Big Deal?
 First Real Change to FRCP in 38 Years
 Purpose was to account for increase in ESI without adding undo burden
and/or associated costs
 Force Corporations to Do More eDiscovery
 Example of $1B Corporation
 Average of 556 Cases per Year
 50% or 278 Required eDiscovery of Some Type
 That all changed on December 1, 2006, when Rules 16 and 26 were
amended to provide the court early notice of e-discovery issues.
 Under Rule 16(b), parties must “meet and confer” at least 21 days
before the scheduling conference which, in turn, must occur within
120 days of filing a lawsuit.
 Rule 16(b) further states that the scheduling order must include
“provisions for disclosure or discovery of electronically stored
information”, while Rule 26(f) requires that parties “discuss any issues
relating to preserving discoverable information and to develop a
proposed discovery plan.”
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 What’s the Big Deal?
 Corporations can no longer leave e-discovery for later in the
process.
 Thanks to the FRCP rule changes, they must now define and share
their e-discovery plans at the “meet and confer” which occurs
within the first 99 days of a case.
 Corporations are now obligated to do e-discovery on all 556 Cases.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 LexisNexis Survey Results: The Association of Corporate
Counsel 2007 Annual Meeting in late October
 One year later – 44%of corporate counsel report companies being
unprepared for onset of revised federal rules for e-discovery
 20% of corporate counsel were unaware of whether or not their
company was prepared for the amendments to the federal rules
prior to implementation.
 Top Challenges
 Communicating with IT departments (27% )
 Finding budget to put systems and tools into place (25%)
 Getting buy-in from upper management on the importance of
litigation preparedness (21%)
 Finding e-discovery staff with a good mix of IT and legal expertise
(9 %)
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 LexisNexis Survey Results: The Association of Corporate Counsel
2007 Annual Meeting in late October
 Misperceptions of the Rules
The survey also suggests that confusion still exists regarding certain
elements of the new rules. For example, 70% of corporate counsel
attorneys believe that the rules require them to produce documents in
their “native file” format.
 This is an incorrect assumption, and it is up sharply (up 27 %) from last
year’s response to the same question.
 Impact on Workload and Cost
 While provisions of the new federal rules require early engagement by
parties – particularly to discuss, agree upon and execute e-discovery,
76% of corporate counsel attorneys report that the new rules have not
helped trim costs nor reduce the scope of discovery work for their
companies.
 In fact, survey findings show that the new FRCP have created an
increase in discovery workload for corporate America in most cases.
 For example, 73 % of survey respondents said that their company has
seen an increase of up to 20 %in discovery workload as a result of the
new rules since their implementation last year.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 LexisNexis Survey Results: The Association of Corporate
Counsel 2007 Annual Meeting in late October
 Positive Steps Taken
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Despite challenges and misconceptions, many corporations
appear to be taking the fundamental steps necessary to ensure
their companies are compliant with the new rules. For example,
82%of respondents said their company has a document retention
policy, two-thirds said they have implemented a formal legal
holds process and more than 40 % said they have conducted
employee training for compliance this year. Further, a quarter said
they have hired an e-discovery counsel or ESI coordinator.
Additionally, just over half of respondents said they have taken
more elements of the discovery process “in-house” as a way to
control costs and management
of the discovery process.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 Thus far, approximately 105 e-discovery opinions were
reported since December 1, 2006. The major issues involved in
these cases break down as follows:
 25% of cases addressed discovery requests and motions to compel
 24% of cases addressed spoliation/sanction
 23% of cases addressed issues involving the form of production
 9% of cases addressed preservation/litigation holds
 7% of cases addressed attorney-client privilege and waiver
 6% of cases addressed production fees
 6% of cases addressed admissibility of electronic evidence
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 The Significant Cases
 Court Orders Defendant to Preserve and Produce Server Log Data Stored in RAM
Columbia Pictures Industries v. Justin Bunnell , No. 06-1093 FMC (JCx) (C.D.Cal. May
29, 2007), aff’d. 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007).
 In a suit alleging copyright infringement, the plaintiff sought preservation and
production of user IP addresses along with dates and times of user requests. The
defendant argued that this data was temporarily stored in random access
memory (RAM) and did not constitute electronically stored information (ESI.) The
court held RAM data constituted ESI and was discoverable.
 Magistrate Finds E-mail Exhibits Inadmissible and Outlines Standards for Electronic
Evidence Admissibility
 Lorraine v. Markel Am. Ins. Co. , 2007 WL 1300739 (D. Md. May 4, 2007).
 Plaintiffs brought suit to enforce an arbitrator’s award. The judge dismissed both
parties’ dispositive motions without prejudice to allow resubmission with evidentiary
support. The court held there is a five-point test in determining the admissibility of
electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or
admissible hearsay, 4) the “best evidence”, and 5) not unduly prejudicial. The
court stated, “it can be expected that electronic evidence will constitute much, if
not most, of the evidence used in future motions practice or at trial, [and] counsel
should know how to get it right on the
first try.”
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 The Significant Cases
 Court Orders E-Mail Search and Production at Producing Party’s Own Cost
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Peskoff v. Faber, 2007 WL 530096, (D.D.C. Feb. 28, 2007).
 In a suit alleging fraud, breach of fiduciary duty, breach of contract, and
conversion inter alia, the plaintiff argued that a previous electronic
document production contained unexplained time gaps, suggesting
problems with the original production. As a result, the plaintiff moved to
compel discovery of additional e-mail. The court found in favor of the
plaintiff, holding that accessible data must be produced at the cost of the
producing party, unless the producing party can prove the documents are
inaccessible.
Court Considers Sanctioning Attorneys for Discovery Abuses
 Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28,
2007).
 During one of the last days of a patent infringement trial, crossexamination of the plaintiff's witness revealed the existence of relevant emails that the court later held were "the tip of the iceberg" in an attempt
to conceal over 200,000 pages of relevant e-mails. The judge
characterized the discovery abuses as, "an organized program of litigation
misconduct" and ordered the plaintiff's attorneys to demonstrate why they
should not be sanctioned, without use of documents protected by the
attorney-client privilege.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
NEW E-DISCOVERY FRCP RULES
Best Practices are Now Potential Malpractice
 The Significant Cases
 Court Denies Motion to Compel Deleted E-mail Stored on Backup
Tapes
 Oxford House, Inc. v. City of Topeka , 2007 WL 1246200 (D. Kan.
Apr. 27, 2007).
 The plaintiff brought suit alleging that the defendant
improperly denied several conditional housing permits. In
responding to the plaintiff’s motion to compel, the court
determined there was no obligation to preserve overwritten emails before the likelihood of litigation. Moreover, the court
used a cost-benefit balancing test to find that the production
of the requested ESI would be unduly
burdensome given the cost and likelihood of retrieval
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16 and 26: Pretrial Conferences
 In any action, the court may in its discretion direct the attorneys for
the parties and any unrepresented parties to appear before it for a
conference or conferences before trial for such purposes as
 expediting the disposition of the action;
 establishing early and continuing control so that the case will not
be protracted because of lack of management;
 discouraging wasteful pretrial activities;
 improving the quality of the trial through more thorough
preparation, and;
 facilitating the settlement of the case.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
PRELIMINARY CONFERNCESS
Changes in the FRFCP
 Rule 26(f)
 The new Rule 26(f) requires parties to meet early in the litigation
process and confer about discoverable ESI and issues related to it.
 During this initial meeting, parties will discuss the discovery plan,
which includes the following:
 What ESI will be relied on by the litigants
 How each party stores its ESI
 In what form the information will be produced
 The accessibility of the information
 Issues related to privileged ESI
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
PRELIMINARY CONFERNCESS
Changes in the FRFCP
 Rule 26(f) Commentary
 The necessity for proficient ESI management becomes evident at this
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initial meeting. Attorneys for the litigants are responsible for knowing the
details of their clients' information systems and retention policies.
They will also need to know the ESI that their clients will rely on for claims
or defenses and whether that ESI is accessible or potentially contains
privileged information.
Classifying information as "litigation sensitive" or "privileged" and indexing
it for search and retrieval are information management steps that will
help in this phase of litigation.
Knowing where information is stored and processed not only will assist in
keeping costs down but also will offer an advantage by providing some
certainty when responding to the initial questions posed pursuant to
Rule 26(f).
The agreement made by the parties under Rule 26(f) will be adopted in
a court order following a Rule 16(b) pretrial conference. Therefore, it is
important to be able to answer these preliminary questions with some
certainty.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16 and 26: Scheduling and Planning
 Except in categories of actions exempted by district court rule as
inappropriate, the district judge, or a magistrate judge when
authorized by district court rule, shall, after receiving the report from
the parties under Rule 26(f) or after consulting with the attorneys for
the parties and any unrepresented parties by a scheduling
conference, telephone, mail, or other suitable means, enter a
scheduling order that limits the time
 to join other parties and to amend the pleadings;
 to file motions; and
 to complete discovery.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16 and 26: Scheduling and Planning
 The scheduling order may also include
modifications of the times for disclosures under Rules 26(a) and
26(e)(1) and of the extent of discovery to be permitted;
 provisions for disclosure or discovery of electronically stored
information;
 any agreements the parties reach for asserting claims of privilege
or of protection as trial-preparation material after production;
 the date or dates for conferences before trial, a final pretrial
conference, and trial; and
 Any other matters appropriate in the circumstances of the case.
 The order shall issue as soon as practicable but in any event within
90 days after the appearance of a defendant and within 120 days
after the complaint has been served on a defendant. A schedule
shall not be modified except upon a showing of good cause and by
leave of the district judge or, when authorized by local rule, by a
magistrate judge.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16: Subjects for Consideration
 At any conference under this rule consideration may be given, and
the court may take appropriate action, with respect to
 (1) the formulation and simplification of the issues, including the
elimination of frivolous claims or defenses;
 (2) the necessity or desirability of amendments to the pleadings;
 (3) the possibility of obtaining admissions of fact and of
documents which will avoid unnecessary proof, stipulations
regarding the authenticity of documents, and advance rulings
from the court on the admissibility of evidence;
 (4) the avoidance of unnecessary proof and of cumulative
evidence, and limitations or restrictions on the use of testimony
under Rule 702 of the Federal Rules of Evidence;
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16 and 26: Subjects for Consideration
 At any conference under this rule consideration may be given, and
the court may take appropriate action, with respect to
 (5) the appropriateness and timing of summary adjudication
under Rule 56;
 (6) the control and scheduling of discovery, including orders
affecting disclosures and discovery pursuant to Rule 26 and Rules
29 through 37;
 (7) the identification of witnesses and documents, the need and
schedule for filing and exchanging pretrial briefs, and the date or
dates for further conferences and for trial;
 (8) the advisability of referring matters to a magistrate judge or
master;
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16: Subjects for Consideration
 At any conference under this rule consideration may be given, and
the court may take appropriate action, with respect to
 (9) settlement and the use of special procedures to assist in
resolving the dispute when authorized by statute or local rule;
 (10) the form and substance of the pretrial order;
 (11) the disposition of pending motions;
 (12) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve
complex issues, multiple parties, difficult legal questions, or unusual
proof problems;
 (13) an order for a separate trial pursuant to Rule 42(b) with
respect to a claim, counterclaim, cross-claim, or third-party claim,
or with respect to any particular issue in the case;
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16: Subjects for Consideration
 At any conference under this rule consideration may be given, and the
court may take appropriate action, with respect to
 (14) an order directing a party or parties to present evidence early in
the trial with respect to a manageable issue that could, on the
evidence, be the basis for a judgment as a matter of law under Rule
50(a) or a judgment on partial findings under Rule 52(c);
 (15) an order establishing a reasonable limit on the time allowed for
presenting evidence; and
 (16) such other matters as may facilitate the just, speedy, and
inexpensive disposition of the action.
 At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into stipulations and
to make admissions regarding all matters that the participants may
reasonably anticipate may be discussed. If appropriate, the court may
require that a party or its representatives be present or reasonably
available by telephone in order to consider possible settlement of the
dispute.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16: Final Pre-Trial Conference
 Any final pretrial conference shall be held as close to the time of
trial as reasonable under the circumstances. The participants at any
such conference shall formulate a plan for trial, including a program
for facilitating the admission of evidence. The conference shall be
attended by at least one of the attorneys who will conduct the trial
for each of the parties and by any unrepresented parties.
 Rule 16: Pre-Trial Orders
 After any conference held pursuant to this rule, an order shall be
entered reciting the action taken. This order shall control the
subsequent course of the action unless modified by a subsequent
order. The order following a final pretrial conference shall be
modified only to prevent manifest injustice.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 16 and 26: Preliminary Conferences
Changes in FRCP Rules
 Rule 16: Sanctions
 If a party or party's attorney fails to obey a scheduling or pretrial
order, or if no appearance is made on behalf of a party at a
scheduling or pretrial conference, or if a party or party's attorney is
substantially unprepared to participate in the conference, or if a
party or party's attorney fails to participate in good faith, the judge,
upon motion or the judge's own initiative, may make such orders
with regard thereto as are just, and among others any of the orders
provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any
other sanction, the judge shall require the party or the attorney
representing the party or both to pay the reasonable expenses
incurred because of any noncompliance with this rule, including
attorney's fees, unless the judge finds that the noncompliance was
substantially justified or that other circumstances make an award of
expenses unjust.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Reasonably Accessible Data
Changes in FRCP Rules
 Rule 26(a): Provisions Governing Discovery; Duty of Disclosure
 Party Must Provide Description by Category and Location of All
Documents, ESI, and Tangible Things In Their Control and Which They
May Use to Support Their Case
 Rule 26(b)(2)(B): Discovery Scope and Limits
 Party Need Not Provide ESI From Sources That Party Identifies as “Not
Reasonably Accessible” Because of Undue Burden & Cost (Good
Cause Exception)
 Rule 26(b)(2)(C): Limitations on Discovery
 If Discovery Sought is Unreasonably Duplicative or Cumulative or
Obtainable From More Convenient, Less Burdensome Source
 If Party Seeking Discovery Has Had Ample Opportunity to Obtain
Information Sought
 If Burden or Expense of Proposed Discovery Outweighs The Likely Benefit,
Taking Into Account Needs of Case, Amount in Controversy, Parties
Resources, Importance of the Issues at Stake and Importance of
Proposed Discovery In Resolving Issues
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Reasonably Accessible Data
Changes in FRCP Rules
 Rules 26: Information Technology Perspective
 Periodic reassessment / reevaluation of requirements & selection
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criteria used (Criteria needs to be well defined- include both e-mail
& IM).
Senior Executive understanding and buy in is critical.
Procedures to address changes in criteria, test & implement.
Effort needs to be coordinated between Legal, IT, Audit.
Backups –retention guidelines need to be explicitly spelled out in
writing; Storage and space issues need to be addressed.
Include requirements in new employee awareness training &
notification to all employees
Periodic testing
Auto back up without employee intervention – key word scan.
Centralization – Do you want to utilize technology to centrally
archive, index, and make the e-mail searchable, accessed easily,
and integrate with existing backup system?
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Reasonably Accessible Data
Changes in FRCP Rules
 Rules 26: Subjects for Consideration
 What is Hard to Access Today May be Easy Tomorrow
 What is Easy to Access Today May be Hard Tomorrow
 Courts May Require NRA Log Similar to Privilege Log: Problem Is You
Know Content of Privileged Data; You Do Not Know Content of
NRA, Only Source or Type of Data
 Distinguish Between “Reasonably Foreseeable as Relevant” and
“Reasonably Foreseeable as Discoverable”
 Courts Have Ability to Shift Costs for NRA
 Requesting Party May Offer to Share or Pay Costs: This is Not
Deciding Factor – Also Have to Consider Responding Party’s Costs
and Burden in Reviewing Info for Relevance & Privilege
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Post Production Privilege
Changes in FRCP Rules
 Rule 26(b)(5): Post Production Privilege
 New Amendments define a procedure for resolving claims of
privilege a party makes to a communication that, during discovery,
it has inadvertently disclosed to another party.
 Prior to the December 2006 Amendments to the FRCP, the previous
sole guideline for lawyers receiving inadvertently disclosed
communications in a federal case was the requirement of Model
Rule 4 (As amended from Formal Opinions 92-368 and 94-382) to
notify the sender of the disclosure. With no restriction on the
information's use, lawyers were free to use the contents of the
communication, even if privilege had not been waived. The
resulting loophole in privilege rules opened the door for bizarre
results.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Post Production Privilege
Changes in FRCP Rules
 Rule 26(b)(5): Post Production Privilege
 If information is produced in discovery that is subject to a claim of
privilege or of protection as trial-preparation material, the party
making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a
party must promptly return, sequester, or destroy the specified
information and any copies it has and may not use or disclose the
information until the claim is resolved.
 Under this rule, a receiving party must stop all use of inadvertently
disclosed information subject to a claim of privilege once the
producing party provides notice of such a claim.
 Rule 26(b)(5)(B) thus, on its face, represents a middle ground
between the strict protections of Formal Opinions 92-368 and 94-382
and the freedom of use condoned by Model Rule 4.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 26: Post Production Privilege
Changes in FRCP Rules
 Rule 26(b)(5): Post Production Privilege
 Ethics aside, the plain language of the rule places the initial burden
on the producing party, not the receiving party. Therefore, the
recipient has no obligation to act until informed of the producing
party's claim to privilege.
 Once the producing party has made its claim, however, the burden
on the receiving party is much like those of the withdrawn Formal
Opinions. The receiving party must immediately stop all examination
of the documents, then must return them, destroy them, or submit
them to the court under seal. Here the rule anticipates, perhaps for
purposes of saving time, what the instructions of the sending lawyer
might have been under the Formal Opinions.
 Finally, as suggested in Formal Opinion 94-382, the receiving party
may request a determination of the privilege claim from the court.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 33 and 34: Specification of Form
Changes in FRCP Rules
 Rule 33(d): Interrogatories to Parties
 Rule 33(d) is amended to specify that electronically stored information
may qualify as appropriate business records from which an answer to an
interrogatory may be derived or ascertained.
 Rule 34(b): Form
 Rule 34 (b) is amended to permit the requesting party to designate the
form or forms in which it wants electronically stored information (ESI)
produced.
 The rule recognizes that different forms of production may be
appropriate for different types of electronically stored information (ESI).
 Using current technology, for example, a party might be called upon
to produce:
 Word processing documents (MS Word, Word Perfect)
 E-mail messages (Outlook, Lotus, Hotmail, Gmail)
 Electronic spreadsheets (Excel)
 Different image or sound files (i.e. very long list)
 Material from databases (Oracle, SQLServer, MSAccess, Lotus)
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 33 and 34: Specification of Form
Changes in FRCP Rules
 Rule 34(b): Form
 If Requesting Party Does Not Identify “Form,” Party Must Produce ESI In Form In
Which It Is Ordinarily Maintained Or Form That Is Reasonably Usable, But May Not
Produce ESI In Form Less Useful Or Searchable Than Form In Which It Is Normally
Maintained.
 Subjects for Consideration
 How Will Paper Documents Be Produced?
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In spite of the fact that electronic documents have taken the front seat in
discovery, paper documents still exist and must be considered during the
production process. Ultimately paper and electronic documents will be used in
the same manner throughout the post-production discovery process and they
should be produced and integrated in a way that will facilitate their use. Some
questions to be answered might include:
Will you want hard copies or images produced to you? Images can be loaded
directly into a database without the issue of receiving, storing and imaging
large amounts of paper.
Will the producing parties be scanning and OCRing (Optical Character
Recognition) the paper document productions? If so, reaching an agreement
that each party will produce images and OCR text for their production and
that the parties will share in the costs may be an option that will save all parties
time and money.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 33 and 34: Specification of Form
Changes in FRCP Rules
 Subjects for Consideration
 What Types Of Electronic Documents Make Up The Data Set?
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There may be word processing files, spreadsheets, email,
databases, drawings, photographs, data from proprietary
applications, website data, voice mail, and much more. To
understand what data should be produced in light of the issues
specific to the subject case, it is necessary to understand what
information is available in the different software applications (or
types of documents).
Such preparation mitigates the risk of discovering too late that the
agreed upon production format is inadequate to provide the
discovery needed to address and understand the issues in the
lawsuit.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Rule 33 and 34: Specification of Form
Changes in FRCP Rules
 Subjects for Consideration
 What Formats For The Production Documents Provide Access To The
Data Necessary To Best Address Issues In The Case?
 To be sure the necessary data and information is produced in
order to allow thorough analysis of the discovery documents, it is
critical to understand how different types of documents are
impacted by different processing and production format option
 For example, formulas are not viewable when spreadsheets are
converted to image; blind copyees and the date read are not
available when emails are converted to image.
 The determination of whether or not that type of information is
necessary should be made early in the discovery process.
Considering in advance what options are available and
determining the most useful production format for each data type
is essential for negotiating production options.
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Rule 33 and 34: Specification of Form
Changes in FRCP Rules
 Subjects for Consideration
 What Types of Media Should Be Used To Produce And Receive
Production Documents?
 There is a wide variety of media on which data can be stored and
delivered. These might include CDs, DVDs, portable (external) hard
drives, or flash drives. The choice of media can significantly impact
the amount of time and expense that will be involved in analyzing
and processing the data.
 It is possible that a particular type of hardware will be necessary in
order to access and process the data. For example, a hard drive can
hold a significant amount of data but will require a certain level of
expertise and specific hardware to handle properly.
 On the other hand, CDs are universally accessible but do not hold
much data. If a large amount of data is being produced, it may be
better to receive the data on a hard drive and invest in the expertise
and hardware necessary to handle that medium than to spend the
time handling tens or hundreds of CDs individually.
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Rule 45: Subpoena
Changes in FRCP Rules
 Rule 45 (d): Subpoena
 (1)(A) A person responding to a subpoena to produce documents shall
produce them as they are kept in the usual course of business or shall
organize and label them to correspond with the categories in the
demand.
 (1)(B) If a subpoena does not specify the form or forms for producing
electronically stored information, a person responding to a subpoena
must produce the information in a form or forms in which the person
ordinarily maintains it or in a form or forms that are reasonably usable.
 (1)(C) A person responding to a subpoena need not produce the same
electronically stored information in more than one form.
 (1)(D) A person responding to a subpoena need not provide discovery
of electronically stored information from sources that the person
identifies as not reasonably accessible because of undue burden or
cost. On motion to compel discovery or to quash, the person from
whom discovery is sought must show that the information sought is not
reasonably accessible because of undue burden or cost. If that showing
is made, the court may nonetheless order discovery from such sources if
the requesting party shows good cause, considering the limitations of
Rule 26(b)(2)(C). The court may specify conditions for the discovery.
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Summary
Changes to FRCP
 Rule 16 and 26: Preliminary Conferences
 Establishes Guidelines to Meet and Discuss How to Handle ESI
 Rule 26: Changes for Reasonably Accessible Data
 Establishes Guidelines to What Data Has to be Accessible /
Produced
 Rule 26: Post Production Privilege Assertion
 Establishes Guidelines for What is Considered Privileged
 Rule 33 and 34: Specification of Form
 Establishes Guidelines for the Form in which ESI has to be produced
 Rule 45: Subpoena
 Establishes Guidelines for Subpoena of ESI
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NEW E-DISCOVERY FRCP RULES
Changes to FRCP
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Questions and Answers
Changes to FRCP
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RECENT DECISIONS IN E-DISCOVERY
 Required Form of Production
 What Is Easily Accessible Data Versus Inaccessible Data
 Privilege Issues
 Imposition of Sanctions
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PRESERVING DATA
 Backup Tapes
 Collection
 Chain of Custody
 Desktops and Laptops
 Servers
 Portable Phones and Digital Assistants
 Other Media
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ENSURING E-DISCOVERY COMPLIANCE
 Agenda
 Preservation Notices
 Meet and Confer
 How to and What to Ask for in Production Requests
 Protective Orders
 How to Structure Protocols
 Using Experts, Neutrals and Special Masters
 Summary
 Questions and Answers
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ENSURING E-DISCOVERY COMPLIANCE
 Nothing in the December 2006 amendments to the FRCP
changed the familiar common-law and statutory duties to
preserve data. What the amendments did do is highlight the
challenges faced in meeting those obligations when it comes
to electronically stored information (“ESI”).
 During the next hour, we will present and discuss the
relationship between data preservation and data collection
and how to avoid doing the right things the wrong way or
perhaps failing to do them altogether.
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ENSURING E-DISCOVERY COMPLIANCE
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THE FIRST 99 DAYS
Ensuring e-Discovery Compliance
Review Document Retention Policy
Notify Data Custodians
Collect data from all sources
Determine case strategy
Issue Litigation Hold Notices
Cull – move irrelevant data
Interview Custodians
Analyze – custodians, search
terms, dates
Determine scope and cost to
Identify and Preserve
Finalize – custodians, search
terms, dates
Determine final timeline and costs
Advanced Analysis
Determine scope and cost to
collect
Determine scope and cost to
process and/or review
Document procedures
Document procedures
Define redactions and
refine duplication procedures
Document Discovery Plan – Form 35
Day 1
Day 99
Phase 1 - Notification
Phase 2 –Early Case Analysis
Phase 3 – Prep for Meet & Confer
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PRESERVATION NOTICES
Ensuring E-Discovery Compliance
 The Preservation Letter / Notice
 It is becoming commonplace for a party who seeks information in a
dispute to issue a preservation letter to the adverse party that it will
eventually be seeking information from.
 Many larger entities receive letters such as these on a regular basis.
It is the position of this body that these letters should be viewed as
an opening offer in a negotiation process that will ideally lead to a
mutually agreed upon case management order that a judge or
other authority will endorse.
 Both sides can benefit from early, upfront discussions regarding the
scope of preservation.
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PRESERVATION NOTICES
Ensuring E-Discovery Compliance
 The Importance of a Realistic Preservation Notice
 When requesting that the other side preserve certain electronic
data, it is vitally important that the request be tailored to cover only
the documents that are important or relevant to one's case. If an
extremely overbroad preservation letter is sent, it is possible that the
judge or other authority presiding over the case will see this as a
bad faith litigation tactic and not as a good faith offer to negotiate.
In this case, it is possible to forfeit a favorable negotiation position.
 When responding to a preservation letter, it is important to avoid
some common mistakes. For example, ignoring a preservation letter
is not a particularly good idea, nor is sending off a retaliatory letter
meant to inflame the situation. Consider sending back a "counter
offer" outlining what preservation steps will be taken, and detailing
the costs involved with full compliance as well, perhaps suggesting
an in person "meet and confer." Most importantly, this should be
viewed as a negotiation process.
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PRESERVATION NOTICES
Ensuring E-Discovery Compliance
 Challenging a Preservation Notice
 Because the duty to preserve is rather amorphous and perhaps
meant to be over-inclusive as a matter of public policy, it is
important to carefully weigh the decision to contest a preservation
letter if an agreement cannot be reached.
 There are many costs, some apparent and some not, in a long and
drawn out mini-trial regarding the specifics of preservation.
 However, it has been suggested by some authorities in the ediscovery arena that a genuine dispute over the scope of
preservation prior to the filing of a complaint might be an
appropriate subject for a declaratory judgment action.
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PRESERVATION NOTICES
Ensuring E-Discovery Compliance
 The Litigation Hold Notice
 In a typical scenario, receipt of a complaint is followed by the issuance of a
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litigation hold notice to employees and relevant third parties.
A monitoring protocol is put in place a la′ Zubulake V. (See Zubulake v. UBS
Warburg LLC , 229 F.R.D. 422 (S.D.N.Y. July 20, 2004)
Consequently, data custodians will be alerted to the need to retain potentially
relevant ESI and ensure it is not destroyed, deleted or altered. Corporate IT is
hopefully reviewing routine computer operations to determine whether any
settings need to be changed or policies altered to prevent the loss of data. (See
FRCP 37).
Counsel is busy preparing initial disclosures and making decisions regarding data
accessibility. (See FRCP 26(a)(1)(B) and 26(b)(2)(B)).
A team is dispatched to interview key custodians to determine where to find the
ESI that is relevant to the litigation.
Custodians are reminded to preserve potentially relevant ESI, wherever it resides;
workstation, laptop or on the thumb drive casually lying on their desk.
They are provided with a contact name in the event they recall an additional
data source later. Depending on the scope of the litigation, all or some of these
steps were taken in a short time frame in preparation for the FRCP 26(f) meet and
confer during which counsel will be obliged to discuss the electronic discovery
issues that impact the litigation. What next?
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MEET AND CONFER
Ensuring E-Discovery Compliance
 With the new Federal Rules of Civil Procedure (FRCP) now in
place, the meet and confer conference is more critical than
ever.
 The changes to Rule 26(f) confirm that when ESI is involved in
civil litigation, parties cannot over-plan or over-communicate.
This article will explain the various information gathering
questions and issues that counsel should discuss during the
pre-trial stages of a case in order to ensure a textbook
handling of e-discovery matters.
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MEET AND CONFER
Ensuring E-Discovery Compliance
 What do you need to discuss with your opponent?
 As the Committee Notes to Rule 26(f) succinctly state, the purpose of
the amendment to Rule 26(f) is to "direct the parties to discuss discovery
of electronically stored information during their discovery-planning
conference."
 This "early case assessment" rule establishes a timeframe for discussing
electronically stored information (ESI) issues early on in the case.
However, the specific provisions of Rule 26(f) do not dictate a precise
formula for electronic discovery planning. Rather, the Rule directs the
parties to meet as soon as practicable (but no later than 21 days before
a scheduling conference) to develop a plan that addresses essentially
any and all foreseeable discovery issues.
 When you sit down face to face with your counterpart on the other side,
what topics will you discuss? To what level of detail will you delve? How
long will the discussion last? The FRCP provisions are silent when it comes
to the specifics, so it is up to the litigation
teams to collaboratively design their own discovery
framework.
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MEET AND CONFER
Ensuring E-Discovery Compliance
 What do you need to discuss with your opponent?
 At a minimum, attorneys should use the Rule 26 conference as an
opportunity to:
 Clarify expectations regarding document preservation, search
strategies, collection, keyword lists, processing, and cost-allocation.
 Establish which sources of data they expect to receive from their
opponent, and the format in which they expect to receive it.
 Discuss how both sides will handle privileged documents.
 Raise issues pertaining to volume, cost, time, and other factors
affecting the accessibility and burden of producing the data in their
client's possession or control.
 Besides seeking to develop a discovery plan, proficient litigators will take
a strategic approach to these seemingly innocuous meetings. Counsel
should take this time to learn the opponent's perspective on e-discovery
and exactly how savvy they are when it comes to the issues surrounding
electronically
stored information.
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MEET AND CONFER
Ensuring E-Discovery Compliance
 Attorney Check List for Meet and Confer
 Preservation Practices
What is being done to preserve ESI? Is a protective order necessary?
Scope of Discovery
 Will there be any deviations from the default initial disclosures specified in Rule
26(a)?
 What file types and time range is the opposing party seeking?
 Who are the main data custodians the opposing party is interested in?
 What will be the timing for exchanging discoverable ESI?
Accessibility
 What type of data is the opposing party interested in? Backup tapes? Hard
drives? Servers? Removable media?
 Deleted data?
 How easy will it be to access this data?
 Will the use of an e-evidence expert be necessary?
Production of Metadata
 What fields will be exchanged for the various file formats?
Costs & Burdens
 Who will bear the costs associated with gathering, restoring, and producing the
ESI?
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MEET AND CONFER
Ensuring E-Discovery Compliance
 Attorney Check List for Meet and Confer
 Forms of Production
In what format or formats will parties produce the ESI be?
Privilege Issues & Waiver
 How will parties handle inadvertently produced privileged
documents?
Variations from FRCP rules
 Are there any local rules that apply in the jurisdiction?
Inventory of opponent's IT infrastructure
 Which operating systems and software packages were used to
develop key data? Are those systems still in use?
 What are the opponent's document retention policies? Are they
being enforced?
Other
 Is there any other information that may be important to the ediscovery activity in the case?
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MEET AND CONFER
Ensuring E-Discovery Compliance
 What is the judge's role?
 Just as Rule 26(f) was amended to require the parties to discuss early
electronic discovery issues at the outset of litigation, Rule 16(b) was
amended to call for the results of such discussions to be reported to the
judge. Specifically, the rule states that:
 "...the district judge, or a magistrate judge when authorized by district
court rule, shall, after receiving the report from the parties under Rule
26(f) or after consulting with the attorneys for the parties and any
unrepresented parties by a scheduling conference, telephone, mail,
or other suitable means, enter a scheduling order that limits the time ...
(5) provisions for disclosure or discovery of electronically stored
information...“
 Practitioners should use the Rule 16(b) scheduling conference as an
opportunity to ensure the court understands the potential
technological issues involved in collecting, reviewing, processing and
producing any electronic data requested by the opposing party. The
purpose of this rule, according to the Committee Note, is "to alert the
court to the possible need to address the handling of discovery of
electronically stored information early in the litigation if such discovery
is expected to occur."
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MEET AND CONFER
Ensuring E-Discovery Compliance
 Use Meet and Confer to Your Advantage
 By directing counsel and the court to address electronic discovery
matters early on, parties have the opportunity to advocate through
education, thereby gaining credibility with the court and providing an
opportunity for counsel to begin steering electronic discovery decisions
in their clients' favor.
 To that end, counsel may use the Rule 16(b) scheduling conference to,
at least preliminarily, flag concerns regarding any unresolved issues
including accessibility, production format, production of specific
metadata fields and handling of inadvertently produced privilege and
trial-preparation protected information.
 Moreover, the conference gives counsel an opportunity to raise
concerns about their opponent's preservation protocols. Lastly, counsel
should come prepared with a potential timeline for discovery, including
realistic timeframes for completing the collection, review, and
production of the electronic data.
 As with the Rule 26(f) conference, counsel should not hesitate to enlist
the help of an e-evidence expert with the background and training to
effectively articulate the issues.
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PRODUCTION REQUESTS
Ensuring E-Discovery Compliance
 Rule 34. Producing Documents, Electronically Stored Information, and Tangible
Things, or Entering onto Land, for Inspection and Other Purposes
 In General
 A party may serve on any other party a request within the scope of Rule 26(b):
 (1) to produce and permit the requesting party or its representative to inspect,
copy, test, or sample the following items in the responding party's possession,
custody, or control:
 (A) any designated documents or electronically stored information — including
writings, drawings, graphs, charts, photographs, sound recordings, images, and
other data or data compilations — stored in any medium from which
information can be obtained either directly or, if necessary, after translation by
the responding party into a reasonably usable form; or
 (B) any designated tangible things; or
 (2) to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party may inspect,
measure, survey, photograph, test, or
sample the property or any designated object or
operation on it.
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PRODUCTION REQUESTS
Ensuring E-Discovery Compliance
 Rule 34. Producing Documents, Electronically Stored
Information, and Tangible Things, or Entering onto Land, for
Inspection and Other Purposes
 Procedure

(1) Contents of the Request.
 The request:
 (A) must describe with reasonable particularity each item or
category of items to be inspected;
 (B) must specify a reasonable time, place, and manner for the
inspection and for performing the related acts; and
 (C) may specify the form or forms in which electronically
stored information is to be produced.
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PRODUCTION REQUESTS
Ensuring E-Discovery Compliance
 Rule 34. Producing Documents, Electronically Stored Information, and
Tangible Things, or Entering onto Land, for Inspection and Other Purposes
 Procedure

(2) Responses and Objections.
 (A) Time to Respond. The party to whom the request is directed must respond
in writing within 30 days after being served. A shorter or longer time may be
stipulated to under Rule 29 or be ordered by the court.
 (B) Responding to Each Item. For each item or category, the response must
either state that inspection and related activities will be permitted as
requested or state an objection to the request, including the reasons.
 (C) Objections. An objection to part of a request must specify the part and
permit inspection of the rest.
 (D) Responding to a Request for Production of Electronically Stored
Information. The response may state an objection to a requested form for
producing electronically stored information. If the responding party objects
to a requested form — or if no form was specified in the request — the party
must state the form or forms it intends to use.
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PRODUCTION REQUESTS
Ensuring E-Discovery Compliance
 Rule 34. Producing Documents, Electronically Stored Information, and
Tangible Things, or Entering onto Land, for Inspection and Other Purposes
 Procedure
(2) Responses and Objections.
 (E) Producing the Documents or Electronically Stored Information. Unless
otherwise stipulated or ordered by the court, these procedures apply to
producing documents or electronically stored information:
 (i) A party must produce documents as they are kept in the usual course
of business or must organize and label them to correspond to the
categories in the request;
 (ii) If a request does not specify a form for producing electronically stored
information, a party must produce it in a form or forms in which it is
ordinarily maintained or in a reasonably usable form or forms; and
 (iii) A party need not produce the same
electronically stored information in more
than one form.
 Non Parties
 As provided in Rule 45, a nonparty may be compelled to produce documents
and tangible things or to permit an inspection.
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PRODUCTION REQUESTS
Ensuring E-Discovery Compliance
 Checklist of Action Items
 Map your Information Technology
 Infrastructure
 Develop a Data Inventory
 Prepare a Litigation Response Plan
 Modify Retention Policies
 Consider Technology Options
 Inventory your Litigation Portfolio
 Enforce your Retention Policy
 Train your workforce
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PROTECTIVE ORDERS
Ensuring E-Discovery Compliance
 A protective order may be sought by any person against
whom discovery is sought, party or nonparty.
 Burden is on person seeking protective order to show that it is
necessary "to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.
 Types of protective orders available:
 "That discovery not be had." (Rule 26(c)(1).)
 "That the discovery may be had only on specified terms &
conditions, including a designation of the time or place." (Rule
26(c)(2).)
 "That certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters." (Rule 26(c)(4).)
 "That a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way." (Rule 26(c)(7).)
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PROTECTIVE ORDERS
Ensuring E-Discovery Compliance
 The Zyprexa Injunction FSupp2d, No. 07-CV-0504, 2007 WL 460838 (EDNY
Feb. 13, 2007) demonstrates that a protective order does not guarantee
that sensitive documents will not be disclosed improperly.
 And once documents are disclosed, there may be enforcement and free
speech implications that prevent an injunction from being issued to enjoin
any further dissemination.
 Corporate litigants therefore should:
 Be warned that sensitive documents may not be fully protected from disclosure
by a protective order.
 Be advised that the process of producing documents in a litigation is anything but
routine. Document productions should be accorded heightened attention and
litigants must determine at an early stage how sensitive the documents are and
what the consequences of their disclosure would be.
 Be vigilant from the outset and have a plan to protect documents from improper
disclosure.
 Provide the court with concrete ideas to prevent dissemination of documents
while simultaneously affording the adversary reasonable access to the
documents.
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PROTECTIVE ORDERS
Ensuring E-Discovery Compliance
 Corporate litigants therefore should:
 Insist on as much protection as possible from the court to protect the
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confidentiality of documents.
Size-up their adversaries, including opposing counsel, experts and consultants to
determine if there is a greater risk of disclosure. This requires an added level of due
diligence as litigants must closely examine the background of everyone who will
have access to the documents. Ask the pertinent questions: Does plaintiffs
counsel have a track record for trying his case in the press? Has opposing counsel
or any of their consultants or experts ever been sanctioned for violating protective
orders? Does the expert or consultant have a track record of communicating with
the media? Ask around. This type of due diligence may provide the litigant with a
basis for seeking added protection from the court.
Critically assess the level of interest in the community, and among public interest
groups and reporters. This will provide a sense of the environment surrounding the
issues in the case and help to assess the risk of improper disclosure.
Explore methods to electronically protect documents from improper disclosure.
This includes consulting with an electronic discovery vendor to determine the
most secure way to produce documents. The vendor may be able to use
software to withhold certain privileges, such as the ability to print, copy, or
forward a given document. In the end, however, no technology can guarantee
that documents will not be improperly disclosed.
Where there's a will, there's a way, and one determined to distribute documents
will likely find a way to do so
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PROTECTIVE ORDERS
Ensuring E-Discovery Compliance
 Courts should:
 Give serious thought to the content of protective orders and spell out the
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consequences of violating the order.
Be willing to impose rigorous requirements to protect documents. Courts should
be creative in this regard and consider suggestions from both sides of the case.
Admonish litigants at the outset that there will be severe consequences for any
deliberate violation of a protective order.
Limit access to documents to as few individuals as is absolutely necessary and
require that each party explicitly identify who will have access to the documents.
Hold attorneys accountable for the actions of their experts and consultants
through discovery sanctions. Such accountability would deter attorneys from
turning a blind eye to experts or consultants who they suspect may disclose
confidential documents. It would also discourage lawyers from using experts or
consultants to disseminate documents to the media or on the internet to garner
publicity for the case and to put pressure on the opposing litigants to settle -- a
phenomenon that has been known to occur in large commercial litigation.
Impose harsh sanctions on persons that deliberately violate protective orders.
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HOW TO STRUCTURE ORDERS
Ensuring E-Discovery Compliance
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EXPERTS, NEUTRALS AND SPECIAL MASTERS
Ensuring E-Discovery Compliance
 Experts
 When an expert is an eyewitness to material events in a case, or a party to an
action, as opposed to being hired in anticipation of litigation, no work-product
protection exists. E.g., a doctor who provides emergency treatment to an
accident victim may be deposed as to the condition of the patient.
 Experts hired to assist in preparation for trial are treated differently depending on
whether they will be called to testify at trial.
 (1) A party may learn by interrogatories the names of the experts his opponent
expects to call, the subject matter on which the expert is expected to testify,
and the substance of the facts and opinions to which the expert will testify.
 (2) Facts or opinions may be obtained from an expert who has been retained
in anticipation of litigation but who is not expected to testify only "upon a
showing of exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions on the same subject by
other means." (Friedenthal § 7.6; Wright § 81)
 In addition to testifying and non testifying experts, courts have also identified a
third category, informally consulted but not retained. Neither the opinions or
identity of an informally consulted but unretained expert are discoverable without
a showing of special circumstances.
 This is akin to a work-product type privilege.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
EXPERTS, NEUTRALS AND SPECIAL MASTERS
Ensuring E-Discovery Compliance
 Expert Checklist
 Get them the pleadings
 Define the scope of their effort ASAP to limit costs
 Involve them in drafting pleadings, sitting in on relevant depositions
 Give them adequate notice of deadlines and court dates
 Don’t write their opinions
 Accept “the truth” as they report it
 Respond promptly to their messages/queries
 Do not discuss substantive matters via email
 Don’t write a “draft” report until discussed by phone
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
EXPERTS, NEUTRALS AND SPECIAL
MASTERS
Ensuring E-Discovery Compliance
 When you Hold the Smoking Gun
 Don’t forget to designate your expert
 Don’t forget to lay a foundation for Testimony
 Establish chain of custody
 Get your expert’s credentials in somehow, even if other side
stipulates to expertise
 Use familiar analogies and images
 When the Smoking Gun is Pointed at You
 Muddy the waters (only ethically!)
 Challenge the expert’s credentials?
 Challenge the acquisition or analysis?
 Remember that analysis is interpreted
 Who else had access?
 Could evidence have been altered?
 Did the other side “stomp on the evidence?”
12/18/2007 (Page 68)
NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
EXPERTS, NEUTRALS AND SPECIAL
MASTERS
Ensuring E-Discovery Compliance
 When the Smoking Gun is Pointed at You
 Were you properly noticed about the testimony?
 Ask no questions that you do not know the answer to
 Prepare your cross-exam with YOUR expert
 Identify any weaknesses, even if you can’t disprove evidence
 Be careful going beyond your knowledge
 General Protocol
 Keep expert testimony short as possible
 Keep it clear
 Follow a script – don’t ad lib
 Don’t confuse your own expert
 PREPARE your expert
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Summary
Ensuring E-Discovery Compliance
 Preservation Notices
 Meet and Confer
 How to and What to Ask for in Production Requests
 Protective Orders
 How to Structure Protocols
 Using Experts, Neutrals and Special Masters
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Questions and Answers
Ensuring E-Discovery Compliance
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
PRODUCING ELECTRONIC DATA
 Production Format
 De-duplication
 Signature Analysis
 Hash Analysis
 Data Carving
 File Fragments
 Meta Data
 Privilege Issues
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
CONDUCTING FORENSIC ANALYSIS
 How to Assess Compliance with Discovery Requests and
Completeness of Produced Data
 Registry Analysis
 Event Logs
 Link Files
 Wiping Programs
 Detecting Data Hiding Techniques
 Assessment of Preserving and Production Techniques
 Metadata Analysis: Finding, Interpreting and Evaluating
 File Systems
 Host File Metadata
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
COMPLIANT DATA RETENTION
 Agenda
 Retention Issues
 Destruction Issues
 Systems
 Data Structures and Organization
 Summary
 Questions and Answers
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
RETENTION ISSUES
Compliant Data Retention
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
RETENTION ISSUES
Compliant Data Retention
 Business Requirements
 What do you need to run the business
 IT Requirements / Capabilities
 Compliance with the Changes to the FRCP
 Ignorance is no longer a justification for not retaining data
 Retain or Destroy Conundrum
 If you keep it, it is discoverable
 If you Destroy it in an unreasonable manner (i.e. too short of a
timeframe for your industry), the court may apply sanctions.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
Retention Issues
Compliant Retention
 Recommended Approach to Retention Policy
 Get the Support of your Executive Management (i.e. the Board of






Directors)
Hire an Expert to Guide the Process
Create a Task Force in every Pertinent Department
 Business
 IT
 Legal
 HR
Set Expectations
Involve Everyone in the Company though Seminars and Training
Have a Tracking System
Meet every Month / Quarter to Review Compliance
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
DESTURCTION ISSUES
Compliant Data Retention
 Rule 37(f) provides a statutory framework upon which
organizations can now begin to model their policies of destroying
electronic information in the ordinary course of business with less
fear of fines and sanctions.
 Organizations wishing to implement a policy of data destruction through
the routine operation of electronic information systems should first
establish a well-defined destruction policy and clearly identify the
legitimate business reasons that support the policy.
 This policy should be implemented on a consistent basis, across all
sources of electronically stored information. Failure to do so could
undermine the stated legitimate business reasons for the policy.
 Applying the policy on a consistent basis requires knowing what
electronic information you have, and where you keep it. To that end,
organizations should maintain an updated database showing all
sources of electronically stored information, the type of information
stored, and details, such as filenames and date ranges.
 Organizations must also establish the means by which they can quickly
and adequately implement "litigation holds" on any electronic
information that might be relevant to actual or
reasonably likely litigation.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
DESTURCTION ISSUES
Compliant Data Retention
 Rule 37(f) provides a statutory framework upon which organizations can
now begin to model their policies of destroying electronic information in
the ordinary course of business with less fear of fines and sanctions.
 Organizations must also establish the means by which they can quickly and
adequately implement "litigation holds" on any electronic information that might
be relevant to actual or reasonably likely litigation.
 I recommend establishing and communicating a company-wide litigation hold
policy that includes employees alerting corporate legal counsel of facts that are
"reasonably likely" to lead to litigation, and, ideally, utilizing a document retention
system that allows for the "tagging" of electronic records that are deemed subject
to the litigation hold so as to prevent the inadvertent destruction of discoverable
records.
 Organizations should also designate a single management-level employee to
serve as the company's representative on the issue of the organization's
destruction policy -- both the business reasons that support such policy as well as
the measures undertaken in order to meet litigation hold requirements. This person
will then serve as the organization's spokesperson on the facts that demonstrate
"good faith" in connection with the organization's destruction policy.
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
SYSTEMS
Compliant Data Retention
Records Retention System
eDiscovery Systems
Firewall
EDD Systems
Online Review Systems
Case Management
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
SYSTEMS
Compliant Data Retention
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
SYSTEMS
Compliant Data Retention
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
DATA STRUCTURES AND ORGANIZATIONS
Compliant Data Retention
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
DATA STRUCTURES AND ORGANIZATIONS
Compliant Data Retention
 Additional Issues for Consideration
 Native vs. Other File Format
Example: Actual Email vs. a TIFF Copy
 Native File Format is the Recommended Format
 Metadata
 In some cases the “Smoking Gun” may be in Metadata
 Worst Cast is Metadata has to be retrieved and reviewed
 Embedded Files
 Anything attached to another File
 Example: An Excel Spreadsheet attached to an email
 Embedded files are probably where all the “good stuff” is located

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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
SUMMARY
Compliant Data Retention
 Retention Issues
 Destruction Issues
 Systems
 Data Structures and Organization
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor
QUESTIONS AND ANSWERS
Compliant Data Retention
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NBI Seminar, Salt Lake City: Operate in compliance with FRCP rules changes and eliminate the fear factor