What is eDiscovery and
why should I care?
Christopher J. Cafiero, J.D.
Millions of pages,
located…nowhere
…and everywhere.
The world of documents is
changing from the physical
to the electronic
The old world…
The old world…
Paper, paper, everywhere…
The new world…
The new world…
…paper has been replaced.
Welcome to the new
world…
Typical File Sizes
Document
Avg. Pages
Pages per GB
Word Doc
9
64,782
Email (.pst)
1.5
100,099
Excel
50
165,791
PowerPoint
14
17,552
Text (.txt)
20
677,963
Digital Memory Sizes
Document
Size
Byte
8 bits
KiloByte
1,024 Bytes
MegaByte
1,048,576 Bytes (1,024 KB)
GigaByte
1,073,741,824 Bytes (1,024 MB)
TeraByte
1,024 GB
PetaByte
1,024 PB
Therefore…
….a typical 1TB drive,
which costs less than $100 can contain 7,370,752
documents consisting of over 66,336,768 pages
This amount of information is
fundamentally
Unreviewable
So what do these trends
mean and what is
e-Discovery?
You will be sued!
You will be sued, or be a party to litigation, it’s a
matter of when, not if:
15 million lawsuits filed in 2013; or
1 lawsuit for every 12 people in this country; or
1 lawsuit every two seconds
So, if you keep or manage
the records, this is going to
be your problem…
Litigation Overview
E-Discovery
Discovery? Anything “reasonably calculated to lead
to the discovery of admissible evidence”.
A simple definition of e-Discovery?
Discovery in civil litigation or government
investigations which deals with the exchange of
information in electronic format (often referred to as
electronically stored information or ESI).
Federal Discovery Rules
FRCP 26, “Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any
party's claim or defense—including the existence,
description, nature, custody, condition, and location
of any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence.”
Federal Discovery Rules
FRCP 26, “A party need not provide discovery of
electronically stored information from sources that
the party identifies as not reasonably accessible
because of undue burden or cost. On motion to
compel discovery or for a protective order, the party
from whom discovery is sought must show that the
information 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.”
How did we used to
handle this?
The old way
While consider today….
The least capable Apple iPhone5 can store 800
million words of text, enough to line a football field
with books or fill 16 flatbed trucks with paper. It
can hold 8,000 photographs, 260,000 phone
messages, or hundreds of home videos.
So, how do we make ESI
available for discovery?
So, how do we make ESI
available for discovery?
Information Management
Let’s talk briefly about spoliation…
…and litigation holds…
Lester v. Allied Concrete Co.
•
$522,000 sanction for deleting Facebook photos
from company site
•
Lawyer resigned, fired from firm, sanctioned
•
Client bankrupted…before ever getting to the
merits of their case.
•
What other sanctions are there?
Identification
Preservation & Collection
Processing, Review &
Collection
Production
Presentation
What are the consequences
of ignorance?
Zubulake v. UBS Warburg I, II, III, IV, and V 2003, 2005
An employment, sex-discrimination case. Laura Zubulake wanted
information contained in various electronic documents. UBS
provided 100 pages of relevant email correspondence…but Laura
provided over 400 pages she had saved herself…
Zubulake v. UBS Warburg I, II, III, IV, and V 2003, 2005
An employment, sex-discrimination case. Laura Zubulake wanted
information contained in various electronic documents. UBS
provided 100 pages of relevant email correspondence…but Laura
provided over 400 pages she had saved herself…
Ooops!
Zubulake v. UBS Warburg I, II, III, IV, and V 2003, 2005
The result:
The court developed a seven-point balancing test to determine
who bears the cost for the ESI production;
The court found UBS Warburg deliberately attempted hide or
destroy information relevant to Zubulake’s claim so…
Zubulake v. UBS Warburg I, II, III, IV, and V 2003, 2005
The result:
UBS paid for ALL e-Discovery costs, was subject to an “adverse
instruction”
…and Laura won a whole lot of UBS’ money ($29.3 million).
Amex v. Vinhnee, 2005
In this case, American Express claimed that Mr. Vinhnee had
failed to pay his credit card debts, and took legal action to recover
the money. But the trial judge determined that American Express
failed to authenticate its electronic records, and that therefore
Amex could not admit its own business records into evidence.
American Express regrouped, and tried again to get the records
admitted and was again refused on the grounds that it failed to
sufficiently establish a foundation of authenticity for the records
offered into evidence. Finally, American Express challenged the
judgment on appeal and lost a third time.
Interestingly, the defendant didn’t show up for the court date, and
wasn’t even represented by counsel.
You're Fired!
So, if you keep or manage
the records, these are going
to be your some of your
problems…
How do you deal with this?
Key Take -Aways
•
Information governance is a key sector of
eDiscovery.
•
Defensively delete expired information, having
clear retention policies are key, but…
•
Institute strict litigation holds when required.
Questions ?
christopher.cafiero@me.com
214-801-1450