Summer IV 2013 – 6382 E-Discovery Produce! UNIVERSITY OF HOUSTON Summer IV 2013 – 6382 E-Discovery

The E-Discovery Process-Overview PHASE 1 COLLECTION & SCOPE Preservation Collection Analysis Meet & Confer Rule 16 Scheduling Conference PHASE 2 PLANNING & NEGOTIATING Discovery Plan PHASE 3 EXECUTION ESI Processing Legal Review Production

PHASE 3 Actions & Decisions ESI Processing Legal Review Production Selection of E-Discovery Vendor(s) Management of Vendor(s) Analysis of Vendor Reports during Processing Decisions on Filtering Criteria Negotiate Keyword List & Processing Coordination of any Vendor Testimony Develop Review Plan Single or Multi-Phase? Contract Attys? Review Platform[s] Limited Review due to Clawback? Prioritize Review per Rolling Production Agreement Develop Privilege Log[s] Coordinate Productions per “Rolling” Agreement Confirm Authentication Oversee and Log Productions Audit E-Discovery Vendor QA/QC Processes

ESI Processing Cost Mgmt Opportunities Based on the Discovery Plan, vendor selection should consider amount and type[s] of ESI, the type[s] of processing planned, the time allowed to process it, and the amount of it that is expected to pass the filters to legal review. To facilitate the process, it is best to have standing Master Agreements with the vendor[s] of choice. ESI Processing Selection of E-Discovery Vendor(s) Management of Vendor(s) Analysis of Vendor Reports during Processing Decisions on Filtering Criteria Negotiate Keyword List & Processing Coordination of any Vendor Testimony The decision of who will manage the ED process is essentially important. Client-management is always best from a cost management perspective. The ability of the vendor to generate reports on the ESI as it is processed [the earlier the better], is essential. Always select vendors who can meet your needs in this regard. Of special importance is keyword “hit reports” that quantify the number and total volume of “hits” for each keyword. Once quantitative reports are generated by the EDVendor, decisions on filtering criteria can be made. Start with highly selective criteria and expand as needed, to assure hi responsive rates early to allow production to begin. This is especially important with keywords, which is why this was negotiated earlier in Phase 2. To the extent that burden or other arguments to limit processing of ESI are relevant, identify the responsible party early so preparation can begin.

Legal Review Cost Mgmt Opportunities As soon as it becomes apparent what kind of volume of data will make it to legal review, decide how to proceed: Single review with Trial Counsel, or multi- review with initial review performed by lower cost alternatives. If contract attys are selected, several options exist: 1] Self-contracted, hourly 2] Specialty firm, hourly or unit rate 3] All-inclusive fixed price Legal Review Develop Review Plan Single or Multi-Phase? Contract Attys? Review Platform[s] Limited Review due to Clawback? Prioritize Review per Rolling Production Agreement Develop Privilege Log[s] Selection of review platform is critical. If the file count is high [tens of thousands], conceptual-grouping platforms are proven to reduce cost significantly. Based on the perceived sensitivity of the document collection, consider producing without legal review, subject to a privilege claw-back agreement. Focus initial review on the “low-hanging fruit” so production can begin early, minimizing complaint from the requesting party. This gives more time to cull subsequent productions. Many EDV hosting platforms can auto-produce privilege logs for files so-coded during review.

Production Cost Mgmt Opportunities Having negotiated the form of production in the Meet and Confer, the ED vendor can generate the production[s] during normal hours, and not the usual weekend 24/7 panic blitzkrieg, for which premiun charges apply. This also allows time for proper QA to confirm redactions, privileges, etc. Production Coordinate Productions per “Rolling” Agreement Confirm Authentication Oversee and Log Productions Audit E-Discovery Vendor QA/QC Processes Having negotiated a protocol for production of native files, the EDV can generate the production accordingly, along with the cross-reference file with the authentication code [e.g hash values]. Depending on the size and schedule of the productions, stay vigilant as to the schedule to avoid last-minute surcharges. Be sure your EDV is maintaining timely QA on the process. This tends to get behind and can create delays and last-minute problems.

D’Onofrio v. SFX Sports Group, Inc. 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.

D’Onofrio v. SFX Sports Group, Inc. 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.

D’Onofrio v. SFX Sports Group, Inc. Key Points: What was the form of the request from the plaintiff? What’s the relevant language from the Rule? What was the Court’s reaction? How would this play out under Texas Rules?

The Rule in Texas Texas Rule of Civil Procedure 196.4 Requesting party “must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced.” Tex. R. Civ. P. 196.4. If responding party cannot produce the material in the form requested after expending reasonable efforts, the party must object. Id. Finally, if the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. Id.

D’Onofrio v. SFX Sports Group, Inc. Key Points: What was the form of the request from the plaintiff? What’s the relevant language from the Rule? What was the Court’s reaction?

D’Onofrio v. SFX Sports Group, Inc. The court concluded plaintiff's instruction referred to physical file cabinets or folders and that the request could not be read reasonably to include electronic "files." even if the request were read to refer to electronic files, plaintiff had not specifically requested production of electronic data solely in its original form with accompanying metadata. The court would not compel production of the business plan with accompanying metadata because that production had not been specifically requested by plaintiff.

Victor Stanley Inc. v. Creative Pipe Inc. The Sedona Conference suggests: Practice Point 7.  Parties should expect that their choice of search methodology will need to be explained, either formally or informally, in subsequent legal contexts (including in depositions, evidentiary proceedings, and trials). ©2008 De la Rosa & Chaumette 13

Victor Stanley Inc. v. Creative Pipe Inc. The Sedona Conference suggests: Practice Point 6.  Parties should make a good faith attempt to collaborate on the use of particular search and information retrieval methods, tools and protocols (including as to keywords, concepts, and other types of search parameters). ©2008 De la Rosa & Chaumette 14

Victor Stanley Inc. v. Creative Pipe Inc. Remember: The court discussed the utility of privilege logs, and the burden for the court that in camera review of disputed documents entails, something “about which the parties and their attorneys often seem to be blissfully unconcerned.”  ©2008 De la Rosa & Chaumette 15

United States v. O’Keefe Key points: Should Expert Testimony be Required to Explain to the Trier of Fact How Search Protocols Were Constructed?

United States v. O’Keefe Key points: Magistrate Judge John M. Facciola ordered the parties to collaborate on production after the co-defendant filed a motion to compel claiming the government failed to meet its discovery obligations.  Judge Facciola further suggested that any judicial review of search methods may demand the services of an expert witness, observing that lawyers and judges who attempt to determine whether search terms are effective venture "where angels fear to tread."

For your consideration… Consider a Boolean negotiation. How would you approach a Boolean search? How do you approach the other side?

Fed. R. Civ. P. 26(b)(2)(B) (B) Specific Limitations on Electronically Stored Information. 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, considering the limitations of Rule 26(b)(2)(C)[.]

McPeek v. Ashcroft 202 F.R.D. 31 (D.D.C. 2001). Magistrate Judge Facciola & “marginal utility.” Plaintiff alleges retaliation following his filing an EEOC complaint alleging sexual harassment. After discovery requests, defendants searched for electronic and paper documents, but plaintiff wanted DOJ to search its backup systems for potentially discoverable information.

McPeek v. Ashcroft In order to assess the situation, Court ordered restoration of backup e-mails over a one year period, and "carefully" document the time and expense in doing that search. Based on the results of that sampling, the parties would be allowed to argue about any further search. In dicta, an "adverse inference" warning …

Rowe Entertainment v. William Morris the specificity of the discovery requests; the likelihood of discovering critical information; the availability of such information from other sources; the purposes for which the responding party maintains the requested data;

Rowe Entertainment v. William Morris the relative benefit to the parties of obtaining the information; the total cost associated with production; the relative ability of each party to control costs and its incentive to do so; and the resources available to each party.

Zubulake I Court warned that the prevailing cost-shifting analysis from Rowe might favor large corporations when engaged in litigation with private parties, a result which could “undermine the ‘strong public policy favor[ing] resolving disputes on their merits,’ and may ultimately deter the filing of potentially meritorious claims.”

Zubulake I Factors to determine whether costs should be shifted: a. The extent to which the request is specifically tailored to discover relevant information; b. The availability of such information from other sources; c. The total cost of production, compared to the amount in controversy; The marginal utility factors… most important of all. See McPeek v. Playboy.

Zubulake I Factors to determine whether costs should be shifted: d. The total cost of production, compared to the resources available to each party; e. The relative ability of each party to control costs and its incentive to do so; f. The importance of the issues at stake in the litigation; and g. The relative benefits to the parties of obtaining the information.

Zubulake III Court examined these factors and ordered the responding party to endure seventy-five percent and the requesting party twenty-five percent of the total estimated cost for restoring and searching the defendant’s e-mail backup tapes throughout discovery.

Application to Facts What sort of things would you like to know? Estimates from the vendors What types of documents are they? How did they end up as TIFFs? Is it realistic for the Defendant to say “no” to OCR? Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009) (court says “no”).

Application to Facts In this securities litigation, plaintiff sought to compel discovery of backup tapes from all the individual defendants. The defendants contended that restoring the back-up tapes could cost upwards of $124,000. The court noted “surprisingly” that the parties had neither entered into any electronic discovery protocol nor had they discussed searching backup tapes.

Application to Facts Court determined without analysis that the backup tapes were not reasonably accessible, but the plaintiff had established “good cause” for further discovery. Court cited Zubulake in holding that defendant must initially assume cost of searching back-up tapes and prepare an affidavit detailing the results and costs. Once a partial search is done, the court can then query whether cost-shifting under Zubulake I is appropriate. In re Veeco Instruments. Inc. Securities Litigation, 2007 WL 983987 (S.D.N.Y. April 2, 2007).

Application to Facts In a class action lawsuit, defendant brought a motion to require plaintiffs to pay 50% of the defendant’s third-party vendor electronic discovery costs incurred to date. Court rejected the motion as inappropriate and untimely, stating that any assertion that sources or electronically stored information are inaccessible or that production is unduly burdensome, justifying cost shifting or sharing, must be brought before the costs are incurred, to give the requesting party and the court an opportunity to consider alternatives. Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008).

The high level points… Be specific in what you want and what you have done. Don’t quickly throw in the towel! Understand that different media produced differently. Consider sampling, but validate. (Corollary: Start with e-mail. Produce it first and work on the rest.) Metadata matters.