E-Discovery:
The New Demands of a Wireless World
Lisa Ketai  James Smith  Lynette Fons
Beirne, Maynard & Parsons, L.L.P.
Houston 713.623.0887 ● Dallas 214.237.4300
www.bmpllp.com
Confidential Attorney Work Product
What Kinds of Electronic Data Are We Talking About?
• Includes all relevant electronic data:
– E-mail messages
– Word-processing files
– Databases
– Internet history files
– Calendars and schedules
CALENDAR SOFTWARE
This is a Hot Topic!
E-Discovery is a hot topic.
We’re Talking About Serious E-Mail Volume!
Worldwide e-mail traffic per day totals about 141
billion messages.
- Source: The Radicati Group, Inc.
E-Mail v. Paper Mail
• Authors think “send” means the e-mail is gone; they don’t
see the paper trail.
• Tendency to be informal in e-mails and use more colloquial
language than would be used in a letter.
• E-mails are not treated with the same sanctity as paper
correspondence.
• 􀂙E-mails potentially last forever.
E-Mail as Friend or Foe?
• E-mail can be an issue before or after litigation arises.
• Problem with e-mail: people act as if they were their private
property.
• E-mail can be very damaging, but it also protect you in
future litigation.
Merck: Vioxx
Dr. Edward Scolnick wrote an e-mail acknowledging that
cardiovascular links to Vioxx were “clearly there” before he
reviewed all of the data regarding the risk.
After reviewing additional data, Dr. Scolnick joined the
company line, i.e., there were no cardiovascular risks posed
by Vioxx.
Nevertheless, he wrote to the Vioxx project team:
“I will tell you that my worry quotient is high... I am actually in
minor agony.”
Houston Chronicle 12/6/05
Merck: Vioxx
In another internal e-mail, Scolnick referred to FDA as
“bastards” and “devious” for requesting additional safety data
and for considering adding a black box warning label to Vioxx.
In testimony, Dr. Scolnick tried to explain the emails. He said
he took issue with the regulators’ push for a black box warning
because the FDA advisory committee had not recommended
the labeling change.
His explanation did not erase the black and white of the emails. The Texas jury returned a verdict for $253 million.
When the Impact of E-Mail Discovery is Not Understood
A 1996 e-mail from a Wyeth-Ayerst administrator regarding the
side-effects of their diet drug, Phen-Fen:
􀂙“...can I look forward to my waning years signing checks for
fat people who are a little afraid of a silly lung problem?”
Zubulake: Seminal Case
In 2001, after Laura Zubulake, a senior salesperson at UBS
Warburg, filed an EEOC claim, a USB Warburg employee sent
an e-mail to a company human resources specialist
suggesting that Zubulake be fired “ASAP,” in part so she would
not be eligible for year-end bonuses.
– See Zubulake v. UBS Warburg, 2003 WL 21087884
(S.D.N.Y. May 13, 2003)
Response to Anticipated Litigation / Discovery Request
Institute a Litigation Hold
Once a party reasonably anticipates litigation, they must
suspend routine document retention/destruction policies and
institute a litigation hold to ensure preservation of relevant
documents.
• 1999: 93% of information was in digital format – only 7% paper.
• 2003: Survey of records management professionals found 47%
did not include electronic records in their retention schedules;
46% did not have a formal system for implementing legal holds;
65% reported that legal holds did not include electronic records.
Response to Anticipated Litigation / Discovery Request
Determine the Scope and Sources of Documents
Understand the business functions involved and appreciate the
supporting software:
• Insurance Information
• Accounting Information
• Medical Records
• Maintenance Records
• Quality Control Records
• Purchasing Information
• Personnel Files
• Grant Writing Files
• Product Research
• Accrediting and Compliance Records
Response to Anticipated Litigation / Discovery Request
Determine the Scope and Sources of Documents
Active Data
• Visible in directories or applications
• Recycle Bins
• History Files
Latent Data
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Deleted Files
Temporary Files
Printer Spools
Meta Data
Hard Drive
Archival Data
• Back Up Tapes
• CDs
• Zip Disks
• Network Servers
Discovering Deleted Data
• Deleted data may be reconstructed from:
– Hard drives
– Network servers
– Storage media
• Cost can be very high
Remember: Parties seeking information without first
establishing a reasonable basis for the belief that it
exists may have to bear the cost of the discovery
effort.
Response to Anticipated Litigation / Discovery Request
Determine the Scope and Sources of Documents
Focus on storage devices, storage media and the storage
locations of the electronic information:
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Desktops
Laptops
Cell phones
Home computers
CDs
Diskettes
Handheld devices
Backup media of all sorts
Voice-mail systems
Memory sticks
iPods
Response to Anticipated Litigation / Discovery Request
Institute Appropriate Retention Policies
• Must be reasonable
• Must be routinely observed
Response to Anticipated Litigation / Discovery Request
Develop a Sound Collection Protocol
• Incorporate custodian interviews or questionnaires.
• Keep a description of the guidelines and procedures
followed in collecting the documents.
• Make sure the party doing the collecting understands the
need to maintain the integrity of the electronic data.
• Seek ways to avoid disruption of normal business.
• Keep a record of collection efforts.
Response to Anticipated Litigation / Discovery Request
The Basic Rules of Discovery Apply
Scope
Relevance
• In Texas state courts, to obtain electronic or magnetic
information, the requesting party must specifically request
electronic or magnetic data and specify the form in which
the he wants it produced.
• Objections including those based upon burden and
expense are available.
Response to Anticipated Litigation / Discovery Request
Review
• Take advantage of technology to make your review more
efficient:
– Identify
– Locate
– Categorize
• Caution: Electronic data may be altered when accessed.
Do Not Attempt Document Collection Yourself!
• You should not try to collect or process electronic data
yourself, unless you have been trained and are well versed
in computer forensics.
• Spoliation is a real danger.
• Evidence collectors are frequently called to testify on
collection methods, storage and preservation of the chain
of custody.
Do Not Attempt Document Collection Yourself!
Three Main Categories of Service Offerings
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Computer forensics / investigative
– Recovering material previously thought to have been deleted or lost
– Restoring to usable format data contained in outdated formats, e.g.,
old e-mail systems
Electronic discovery / litigation support
– Data collection and conversion
– Data hosting
– Filtering and searching data
Consulting
– Advising on electronic discovery issues
– Acting as special masters
Response to Anticipated Litigation / Discovery Request
Production
• Discuss options with a computer expert.
• Consider how your opponent will process the data after it
has been accessed.
• Negotiate the scope of production.
Note: By forwarding documents - whether or not in the
context of production - you may be sending data about its
creation.
What Kind of Data Can Be Found?
Data about data: Detailed information describing a
document or e-mail message, even if that e-mail has been
deleted.
Potential Criminal Liability
In Texas, if you know that an investigation by a governmental
entity has begun, and you knowingly destroy or allow to be
destroyed evidence, you may be criminally liable – even if you
did not know that the “evidence” was relevant to the specific
legal action in question.
Not Just a Defense Issue
Remember: Parties seeking information without
first establishing a reasonable basis for the
belief that it exists may have to bear the cost of
the discovery effort.
In Case You Thought They Were Kidding!
Microsoft. Microsoft balks at the government's frequent requests for emails because many revealed aggressive business tactics. Microsoft
eventually settles.
Morgan Stanley. Court imposes sanctions against Morgan Stanley and
Ronald Perelman obtains $1.45 billion award.
UBS Warburg. In Zubulake v. UBS Warburg, U.S. District Judge Shira
Scheindlin makes an adverse inference ruling against UBS, leading to a
$29.3 million verdict.
Merck. Jury returns $253 million verdict against Merck & Co. Inc., when
a scientist's e-mail suggests that the company knew two years before it
put Vioxx on sale that it might cause heart problems.
Possible Sanctions for E-Discovery Errors
• Adverse inference instruction, which allows a jury to infer
from the fact that a party destroyed certain evidence that
the evidence would have been favorable to the party’s
opponent.
• Precluding a party from introducing any evidence or
argument pertaining to a specific topic.
• Monetary sanctions, such as costs, expert fees, and
attorneys’ fees incurred as a result of the discovery abuse.
• Striking a party’s pleadings and entering judgment against
it.
When Litigation is Even Suspected
• Unless clear instructions are given immediately upon the
expectation of legal action, people will continue to act as if
their e-mails are private correspondence and not subject to
discovery.
• All impacted individuals must be immediately advised of
potential or pending legal action and instructed to use
caution in with their e-mails.
E-Discovery Information
For a searchable database of e-discovery cases, go to:
http://www.ediscoverylaw.com/
We’re Talking About Serious E-Mail Volume!
“When President Bush leaves office after eight
years, the White House is expected to turn over
more than 100 million emails to the National
Archives, the government body entrusted with
preserving America's official recorded history.”
- Wall Street Journal 12/29/05
Back to the Fundamentals
• Some common sense is necessary or our entire civil
jurisprudence system will come to a grinding halt.
• Virtually every judge with significant exposure to electronic
discovery issues knows this.
• Individual judges with no technical training have
tremendous power and discretion in this area.
• It is imperative to be open and to appear open in dealing
with electronic discovery issues.
• The appearance of not playing fair in this context can have
serious adverse consequences.
Acknowledgement
We would like to acknowledge the work of Fios Inc. and of
Sharon Caffrey, John Coughlin, and Michael Krueger of
Duane Morris, which served as the source for some of the
information in this presentation.