E-Disovery
UNIVERSITY OF HOUSTON
SUMMER 2010
LAW 5297 – SELECTED TOPICS
E-Discovery
UNIVERSITY OF HOUSTON
SUMMER 2010
LAW 5297 – SELECTED TOPICS
Summer III 2010 – 5297 E-Discovery
Instructor:
David A. Chaumette
Phone:
(713) 395-0991 (office)
(713) 443-8700 (cell)
Office:
De la Rosa & Chaumette
1330 Post Oak Blvd. Suite 2250
Houston, Texas 77056
E-mail:
dchaumette@delchaum.com
Webpage:
http://delchaum.com/pages/e-discovery_class_2010_125.asp
Course Outline
 What are the underlying rules of e-
discovery.
 What happens when bad things happen to
good people.
 What you are up against.
 How to get ready for a future that is
already here.
Many companies destroy documents hoping to avoid
taking responsibility for things that they have done.
48%
50
30%
40
30
12%
20
10%
10
0%
0
Strongly
Agree
DQ/MCCA Telephone Survey, Q19
September 2002
Somewhat
Agree
Somewhat
Disagree
Strongly
Disagree
©2008 De la Rosa & Chaumette 5
Electronic Information Locations
 Personal computer
 (including home computers)
 Cellphones
 PDAs
 Other subordinates’ computers
 The mainframe
 ….the list goes on…
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Casino Royale…the new beginning
• Zubulake v. UBS Warburg, LLC
2004 WL 1620866 (S.D.N.Y. July 20, 2004).
• Zubulake v. UBS Warburg, LLC
Verdict, April 6, 2005.
• Coleman v. Morgan Stanley
No. CA 03-5045 AI (Fla. Cir. Ct. Mar. 23, 2005).
• United States v. Arthur Andersen
544 US 696 (2005).
• Rimkus Consulting Group, Inc. v. Cammarata, 2010
WL 645253 (S.D. Tex. Feb. 19, 2010).
©2008 De la Rosa & Chaumette 8
Casino Royale
 The Morgan Stanley Verdict:
 At trial, Coleman was awarded:
 $605,000,000.00 in compensatory damages;
 $805,000,000.00 in punitive damages.
 $208,000,000.00 in interest.
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Casino Royale Lessons
 Don’t write checks your client can’t cash.
 Morgan Stanley made representations that did
not match the facts.
 Representations
to the Court,
 Representations to the SEC, and
 Representations to the opposing counsel.
 It’s real important to do your homework first.
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The World is Not Enough
“Discovery on Discovery Better Than Real Discovery.”
“[There] may be more advantage for the requester in the
inability of the respondent to produce discoverable data
than disadvantage arising from the failure to obtain
potentially relevant material.”
-- “The Homesteader and the Gunslinger: Plaintiff’s Counsel
in Discovery,” Robert Alan Eisenberg, January 15, 2003.
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In Focus
Why Rosenthal had to turn over email
Thursday, January 31, 2008 | 5:59 AM
By Ted Oberg
HOUSTON (KTRK) (KTRK) -- Thursday could be Harris County District
Attorney Chuck Rosenthal's worst day since this email scandal started.
He was already forced out of the re-election race and is under state
investigation, but now is facing fines or jail.
It's not over the emails we've seen, but the ones we haven't. Rosenthal
admits to erasing thousands of emails after a federal judge told him to turn
them over.
By now you probably know about Chuck Rosenthal's scandalous emails, but
do you have any idea why he had to turn them over and even more
importantly why he has to answer to a federal judge?
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On Her Majesty’s Secret Service
• Governmental requests will be an important
driver to movement in this area, but prepared
companies will be able to respond.
• There are numerous sources for these
requirements:
–
–
–
–
EPA
Sarbanes-Oxley
SEC
Parallel State agencies.
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Initial Steps on Preservation
 Once you are aware that litigation might occur (don’t
wait until it is filed or document requests are received),
you will need to take steps to protect data from
accidentally being destroyed.
 Don’t rely solely on the IT staff.


Less awareness about litigation and litigation costs.
Completely different job function.
 Interview the IT staff early to determine the scope of
the electronic issues.
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Initial Steps on Preservation
 Send a “hold” letter, even to your own
people.
 Calendar regular reminders of this (avoid
special reminders, if possible).
 Be sensitive to departing employees and the
systems they use.
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Assembling the Response (and Pre-Response) Team
 Multi-Disciplinary
Records
Information
Management
Governance Team
to Guide an
Enterprise-Wide
Records program.
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Assembling the Team, Part 1.
 You need Cyborg.
Someone from IT and
records, someone in touch
with technology.
 But, remember IT often has a
different job function.
 That said, it is also important
to automate this process to the
extent possible, but avoid the
black box.

Assembling the Team, Part 2.
 You need Starfire.

An alien (outsider)
 Legal expertise
 IT expertise
 It is often helpful to bring this
part of the team in early, even
before the litigation begins.
 This will hopefully keep the
costs – and potential for
sanctions down.
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Assembling the Team, Part 3.
 You need Beast Boy.

A chameleon, who adapts to
the environment.
 This should be someone
inside the organization who
knows how each part ticks.
 Different parts of the
companies will have different
requirements and needs –
particularly in the use of
technology.
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Assembling the Team, Part 4.
 You need Raven.

A mystic, or at least someone
who can tell the future.
 This function is for someone
to predict how the standards
of the future will be applied
to corporate actions today.
 Could be legal. Could be
more business related. IM
for example.
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Assembling the Team, Part 5.
 Lastly, you need Robin.

A Boy Wonder to pull it all
together.
 A project of this scope and
importance needs buy-in at
the highest level from the
earliest point.
 It also helps to have someone
who has ownership in the
ENTIRE project, not just a
piece – like a specific piece of
litigation.
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Never Say Never Again
 The new 26(f) meeting
 Steps
taken to preserve evidence
 Schedule, to the extent possible
 Form of production
 Privilege issues
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Never Say Never Again
Simple Words Can Lead to Practical Nightmare:
“… 3. Any documents available in an electronic
format shall be so provided in that format, i.e., in
an identical, usable electronic format….”
Case Management Order dated March 25, 2004.
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For Your Eyes Only …Handling Privilege
 Privilege protection must be a topic for the




26(f) conference between the parties.
Plan for inadvertent production of
privilege materials, using “Clawback” and
“Quick Peek.”
The list of lawyers must be complete!
Consider delaying production until issues
are resolved.
Different sets of rules apply depending on
the jurisdiction…
©2008 De la Rosa & Chaumette
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Rule 502
 A voluntary disclosure would not be a waiver if the
disclosure is inadvertent and is made during discovery in
federal or state litigation or administrative proceedings, so
long as the holder of the privilege


took reasonable precautions to prevent disclosure and
took reasonably prompt measures, once the holder knew or
should have known of the disclosure, to rectify the error.
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Rule 26(b)(5)(B)
 If privileged information has been produced, the party




claiming privilege gives notice of the claim (in writing) and
the basis for it as soon as possible.
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.
A receiving party may promptly present the information to the
court under seal for a determination of the claim.
If receiving party disclosed the information before being
notified, it must take reasonable steps to retrieve it.
The producing party must preserve the information until the
claim is resolved.
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For Your Eyes Only … Common Threads
 “Reasonable efforts” is case by case, but:
 make meaningful efforts to determine the names of
attorneys who may be authors or recipients;
 confirm the search terms being used;
 electronically search or manually review a substantial
portion of the documents; and
 some form of quality control before anything meaningful is
transferred to the adverse party.
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Live and Let Die … Format of Production
 Requesting party may specify format (i.e. native
format, tiff or in an online repository).
 When not specified or if the responding party
objects, the responding party must state its preferred
format.
 Default production format either


form in which the information is “ordinarily maintained” or
in a “reasonably usable” form.
 And, in the last 12 months, the Texas Supreme Court
has spoken… In re Weekley Homes…
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“Reasonably Accessible”
 What is “reasonably accessible?”
 Not
disaster-recovery backups
 Not necessarily “legacy” data
 Not deleted data
 The test: Undue burden or cost.
 Requesting party must show good cause, and that is
determined by proportionality test.
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And now for some practice tips…
What follows are
some more cost
saving tips.
©2008 De la Rosa & Chaumette
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Tip No. 1.
 Recognize when you need a Cadillac and when
you need a Yugo.
 There
are cases that require full forensic copies of
everything and then there are other cases which
really do not. Know what you have.
 Full forensic information might be needed for
some employment cases, trade secret cases, but
individual evaluation is important.
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Tip No. 2.
 Recognize that this process will be – and
should be – iterative. Remember the joke
about the elephant and the spoon.
 Focus
on the main players,
 Analyze what you have,
 Come back for more.
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Tip No. 3.
 Recognize that parties will have to work together and
with the Court.
 Today, parties must discuss these issues early:




Steps taken to preserve evidence
Schedule, to the extent possible
Form of production
Privilege issues
 Remember that judges will probably like e-discovery
battles as much as they like other discovery fights.
Tip No. 4.
 Be proactive if you can.


Help your clients manage their assets today.
For example, ask these questions:
 Where
can people save their documents?
 Do you allow instant messaging?
 How do you use backup tapes?


Consider special situations: mergers, exit interviews, old
employees with new companies.
Explain that everything is permanent.
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Tip No. 5.
 Be proactive if you can, even after the litigation starts.
 Manage the electronic components from the very
beginning.
 This means:



Litigation holds.
Personal personnel interviews with key players and the
records/IT people.
Getting ready for the depositions.
 Document what you are doing.
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Cost Savings Tip No. 5.
 Manage production by always considering four
major cost considerations:
 The
time frame
 The media
 The people
 The search terms
Increasing complexity
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The Not-So New Rules
UNIVERSITY OF HOUSTON
SUMMER 2010 – 5297 E-DISCOVERY
Why were these new rules needed?
45
 New computers, new technology.
 Outdated language in the Rules – look at the old list
in Rule 34.
 Concerns about the cost of litigation.
 Concerns about the failure to preserve and produce
the proper information. (“The era of the ostrich..”)
Retention versus Preservation
46
Document retention policies and statutory law define
the obligation to RETAIN documents
 The period is generally fixed from some event (e.g.,
creation of the document, completion of a
contraction, disposition of an asset)
 Destruction is required at the end of the period
 The rules and case law define the obligation to
PRESERVE documents
 The obligation to preserve arises when, e.g., there is a
reasonable anticipation of litigation
 Destruction is prohibited until the cause of action is
resolved

The Duty to Preserve – Texas law
 Trevino v. Ortega (Texas Supreme Court 1998)

Party is on notice of potential litigation when that party either
actually anticipated litigation or would have anticipated
litigation. Ortega, 969 S.W.2d at 956 (citing National Tank Co.
v. Brotherton, 851 S.W.2d 193, 204-07 (Tex. 1993)). However,
no independent tort of spoliation. Ortega, 969 S.W.2d at 951.

The Court held that the best remedy for spoliation is within the
lawsuit affected by the spoliation. Id.
The Duty to Preserve – Texas law
 Duty to preserve documents can arise from
 pending, threatened, or reasonably foreseeable litigation; or
 other sources (for example, contract, statute, or regulation).
 Critical to analyze choice of law. Generally, whether
the duty to preserve evidence exists is a question of
law.
 Additional Texas Cases:


Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003)
Roytberg v. Wal-Mart Stores, Inc., 111 S.W.3d 843 (Tex.
App.—Dallas 2003, no pet.). The reindeer and a swivel chair.
Revisions to FRCP
49
 Early Discussion of E-Discovery Issues: Rule
16(b), Rule 26(f), Form 35
 Option to Produce Electronically Stored
Information in Response to Interrogatories:
Rule 33(d)
 Definition of Electronically Stored Information:
Rule 34
Revisions to FRCP
50
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
And, like before, we need a theme…
51
 So here it is…
First, a word on document retention…

Kindergarten concepts:
– Wash your hands before you eat.
– Flush.

Judge Scheindlin in Zubulake stated that counsel must,
among other things:
– call for employees to produce copies of relevant
electronic evidence and arrange for the segregation
and safeguarding of any archival media (e.g., backup tapes) that the[client] has a duty to preserve.

In January 2005, Judge Scheindlin published an article
on sanctions for e-discovery abuse (See 11 Mich.
Telecomm. Tech. L. Rev. 71 (2004)).g).)
52
Important Revisions to FRCP
53
 Early Discussion of E-Discovery Issues: Rule
16(b), Rule 26(f), Form 35
 Option to Produce Electronically Stored
Information in Response to Interrogatories:
Rule 33(d)
 Definition of Electronically Stored Information:
Rule 34
Meeting and Conferring … Early
54
 Kindergarten concepts:
 When you go out in the world, watch out for traffic, hold hands
and stick together.
 Early Discussion of Electronic Discovery Issues. Rule
16(b), Rule 26(f), and Form 35 direct counsel to
discuss early on how to handle e-discovery issues,
including decisions relating to privilege claims.
Rule 26(f)
55
 Rule 26(f)(3) & (4): General Provisions Governing
Discovery; Duty of Disclosure; Conference of
Parties; Planning for Discovery.

Meet and confer re: ESI now must be done early

“As soon as practicable, and at least 21 days before the Rule 16
scheduling conference, the parties must confer … [regarding]
the form or forms in which [discovery] should be produced….”
Rule 26(f) meetings…
56
 Rule 26(f)(3) & (4): General Provisions
Governing Discovery; Duty of Disclosure;
Conference of Parties; Planning for Discovery.

Amended to require parties to discuss issues relating
preserving discoverable information – and to put in the
discovery plan the parties views and proposals for
disclosing and discovering electronically stored
information, including the form of production, and
issues relating to claims of privilege or work product.
(N.B.: requires knowing about ESI before Rule 26
conference.)
Rule 26(a) disclosures…
57
 Rule 26(a)(1)(B): General Provisions Governing
Discovery; Duty of Disclosure; Required
Disclosures; Methods to Discover Additional
Matter.

Amended to expressly point out that the initial disclosures
must include identification of materials that are
electronically stored.
A teaser: the Meet and Confer
58

What should you know before you meet and confer?
 The
types of software and native files your client uses
 The way the data is stored
 The client’s search capabilities
 Inventory of existing backups
Rule 16(b)
59
 Rule 16(b)(5)& (6): Pretrial Conferences,
Scheduling Management.

Amended to permit court to provide for disclosure and
discovery of ESI, and “clawbacks” in pretrial order.

It’s the first meeting with the judge…but not the only one.
Important Revisions to FRCP
60
 Early Discussion of E-Discovery Issues: Rule
16(b), Rule 26(f), Form 35
 Option to Produce Electronically Stored
Information in Response to Interrogatories:
Rule 33(d)
 Definition of Electronically Stored Information:
Rule 34
Defining “Document”
61
 Kindergarten concept:
 Clean up your own mess.
 Under this Rule, however, routine and direct access
to the opposing party’s system is not guaranteed,
although such access might be appropriate in some
circumstances.
Defining “Document,” part 2
62
 Kindergarten concepts:
 Share everything.
 Producing Electronically Stored Information in
Response to Interrogatories. Under the new version
of Rule 33(d), the responding party is allowed to
produce electronic data when responding to
interrogatories.
Defining “Document,” part 2
63
 Kindergarten concepts:
 Share everything.
 Producing Electronically Stored Information in
Response to Interrogatories. If direct access to
the responding party’s system is the only
option a requesting party has for locating and
identifying the information, the responding
party may choose to derive or ascertain the
answer itself.
Important Revisions to FRCP
64
 Early Discussion of E-Discovery Issues: Rule
16(b), Rule 26(f), Form 35
 Option to Produce Electronically Stored
Information in Response to Interrogatories:
Rule 33(d)
 Definition of Electronically Stored Information:
Rule 34
Electronically Stored Information
 The
amendment adds a new term to the
Rules: electronically stored information (or
“ESI”).
 But,
there is no definition for ESI … !
Defining “Document”
66
 Kindergarten concept:
 Clean up your own mess.
 Definition of Electronically Stored Information. In
addition to clarifying that electronically stored
information is subject to production and discovery,
the new Rule 34(a) establishes the requesting party’s
right to test and sample electronic data.
Important Revisions to FRCP
67
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
Format of Production
68
 Kindergarten concept:
 Play fair.
 Production Format. Rule 34(b) allows the requesting
party to specify production format for electronic
documents (i.e. native format, tiff or in an online
repository). When the production format is not
specified or if the responding party objects to the
requested format, the responding party must state its
preferred production format.
Format of Production
69
 Kindergarten concept:
 Play fair.
 According to the Rule, the default production format may be either a
form (or forms) in which the information is “ordinarily maintained” or
in a “reasonably usable” form.


In other words, if you request native format, you should get native format?
Or, if you don’t request native format, you may get something “reasonably
usable” - Paper? PDF? TIFF?
 The rule goes on to say: “a party need not produce the same [ESI] in
more than one form.”
Important Revisions to FRCP
70
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
“Reasonably Accessible”
71
 Kindergarten Concept:
 And then remember the Dick-and-Jane books and the first
word you learned - the biggest word of all - LOOK.
 Production of Reasonably Accessible Information.
Draft Rule 26(b)(2)(B) mandates that a party does
not have to produce electronic information that is
“not reasonably accessible.”
“Reasonably Accessible”
72
 Kindergarten Concept:
 And then remember the Dick-and-Jane books and the first
word you learned - the biggest word of all - LOOK.
 After much public commentary on this amendment,
the Committees amended the Rule to include a test
for reasonable accessibility based on the “undue
burden or cost” of producing the information.
Rule 26(b)(2)
73
 Rule 26(b)(2)(B): Inaccessible data




Rule 26(b)(2)(B) protects information identified as “not
reasonably accessible because of undue burden or cost.”
Be sure you “identify” the data collections if you want to
advantage of this exception.
The rule still permits your opponent to seek the information
The exception relieves your client of the burden of searching and
producing …
Rule 26(b)(2)
74
 Rule 26(b)(2)(B): Committee Note
Note: The new rules do “not relieve the party of its
common-law or statutory duties to preserve
evidence…. It is often useful for the parties to
discuss this issue early in discovery.”
 In other words, telling your opponent what you
won’t search doesn’t relieve you of the obligation to
preserve!

Rule 26(b)(2)
75
 Rule 26(b)(2)(B): Effective use:





If you are requesting, have focused (narrow) requests.
If you are producing party, preserve broadly to be able to respond
in case the court orders further production.
Inaccessibility should be raised and negotiated at the Rule 26(f)
meeting and the Rule 16 scheduling conference if issues are
already apparent.
Best strategy in symmetric litigation, make an agreement!
Accessible ESI should usually be reviewed before challenging
inaccessibility
The “Two tier” approach
76
 The tiers:
 Party
must produce “accessible” relevant, nonprivileged information
 Party must produce “inaccessible” information
upon showing of good cause
 “Proportionality” considerations… same as found
in FRE 403.
What is “reasonably accessible?”
77
 Not
disaster-recovery backups
 Not necessarily “legacy” data
 Not deleted data
 The real answer is that “reasonably accessible” is a
term that will be litigated.
Important Revisions to FRCP
78
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
Privilege and Waiver
79
 Kindergarten concepts:
 Don’t take things that aren’t yours.
 Put things back where you found them.
 Say you’re sorry when you hurt somebody.
 Belated Assertion of Privilege. Rule 26(b)(5)(B)
addresses inadvertent production of privileged or
trial preparation information.
 Essentially, receiving party may not use the data
until the waiver claim has been resolved.
Important Revisions to FRCP
80
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
The Not-so-“Safe” Harbor…
81
 Kindergarten concepts:
Don't hit people.
 Goldfish and hamsters and white mice and even the little
seed in the Styrofoam cup - they all die. So do we.

 Applies to information lost as a result of the “routine, good-
faith operation of an electronic information system.”
 Under the new revision, even if parties act in good-faith,
sanctions still may be permitted in “exceptional
circumstances.”
Rule 37(f)
82
 Rule 37(f): Failure to Make Disclosures of
Cooperate in Discovery Sanctions; Electronically
Stored Information.

“Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of
the routine, good faith operation of an electronic
information system.”
Rule 37(f)
83
 Rule 37(f): Routine Operation

Does the safe harbor mean that all routine operations
and management of the computer system are covered?

The committee suggests that the new rule focuses on
“steps essential to computer operation” that may
destroy information for reasons unrelated to litigation.
Rule 37(f)
84
 Rule 37(f): Good Faith

Is it good faith to allow routine operations to continue
after a preservation duty arises?

The committee thinks not: “Good faith in the routine
operation of an information system may involve a party’s
intervention to modify or suspend … that routine
operation to prevent the loss of information, if the
information is subject to a preservation obligation.”
Rule 37(f)
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 Rule 37(f): Backup Tapes
Is overwriting backup tapes part of the routine good
faith operation of a computer system?
 It is not likely that leaving backup tapes in rotation
that may contain relevant data will be shielded by the
safe harbor.
 BUT what actions are?

Rule 37(f)
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 Rule 37(f): Sanctions

Safe harbor only bars sanctions “under these rules,” not under
common law, statute or ethical rules.

Safe harbor prevents only “sanctions,” and not “adjustment” or
management orders such as providing for alternative discovery
to compensate for lost information.

May not protect failure to prevent loss of inaccessible data.

Consider that the safe harbor applies to the information under
the control of a third party with whom a party has contracted for
the processing or storage of information.
Important Revisions to FRCP
87
 Form of Production: Rule 34(b)
 Reasonably Accessible Information: Rule
26(b)(2)(C)
 Belated Assertion of Privilege: Rule 26(b)(5)(B)
 “Safe Harbor” on Sanctions: Rule 37(f)
 Subpoena for Electronically Stored Information:
Rule 45
Similar Changes to Subpoenas
88
 Kindergarten Concept:
 Be aware of wonder. Remember the little seed in the
Styrofoam cup: the roots go down and the plant goes up and
nobody really knows how or why, but we are all like that.
 Subpoena for Electronically Stored Information.
Finally, the rule changes would include an
amendment to Rule 45 that would allow parties to
subpoena electronically stored information pursuant
to the changes in the rest of the amended Rules.
Questions remain… (i.e. more teasers)
89
 What about privileged documents?
 How do you handle unusual documents? (e.g. proprietary
software)
 How do you integrate with paper document production?
 What do you do when you haven’t done what you knew to
do when you should have done it?
Wrapping up today…
90
 Kindergarten concepts:
 Warm
cookies and cold milk are good for
you.
 Live
a balanced life – learn some and think
some and draw and paint and sing and
dance and play and work every day some.
So, Chaumette, how do I look smart?
 Think long term in discovery.


Pick your battles.
Document your steps.
 Focus on volume reduction…

Limit preservation … or limit collection … or limit review … or
limit production.
 Plan for failures.


Have contingency plans in place.
Admit errors quickly.
So, Chaumette, how do I look smart?
 Involve others in the process.

IT, in house lawyers, records people, vendors.
 Know the rules well enough

And understand what their ultimate purpose is.
E-Discovery
UNIVERSITY OF HOUSTON
SUMMER 2010
LAW 5297 – SELECTED TOPICS