E-Discovery in Government Investigations Jeane Thomas, Crowell & Moring LLP February 9, 2009

2 A “Typical” Scenario DOJ issues broad request (subpoena, CID, second request) asking for all “documents” relating to product development, price, marketing, sales, costs, competition for last 10 years Shortly thereafter, plaintiffs file private antitrust class action lawsuit Company must deal with: –Preservation obligations –Collection and production requirements

Scope of ESI

4 DOJ Second Request Definition of “Document” “all written, recorded, and graphic materials and all electronic data of every kind... includes electronic correspondence... metadata, embedded, hidden and other bibliographic or historical data describing or relating to documents created, revised, or distributed on computer systems...” “data stored in personal computers, portable computers, workstations, minicomputers, personal data assistants, archival voice storage systems, group and collaborative tools, electronic messaging devices, portable or removable storage media, mainframes, servers, backup disks and tapes, archive disks and tapes, and other forms of online or offline storage, whether on or off company premises”

5 Scope of Second Request – Documents All documents relating to: –Business plans, strategies, budgets –Competition –Price –Requirements for entry –This or any other transaction Scope is narrowed through negotiation of relevant custodians; limit to ≤2 year period To use or not to use search terms?

6 Scope of Second Request – Databases Identify, describe and produce every database in the company relating to –Products, sales, prices, costs, margins, customers, facilities, production, shipments, IP, R&D –For last 3+ years –Without regard to custodian In most cases, literally impossible to comply with

Preservation

8 When Does Duty to Preserve Begin? Common Law: –Arises when a party is aware or should be aware that evidence in its possession or control may be relevant to existing or potential litigation. –May well be prior to receipt of complaint, preservation order or discovery request. –Must be a credible threat of litigation, not merely a possibility. Sarbanes Oxley: –Amends federal obstruction statutes to make it clear that duty to preserve arises when a federal investigation is “contemplated”

Early Negotiations with Government Agency

10 Checklist for Initial DOJ Conference Custodians (provide org charts) Date limitations Basic info re system architecture “Special” types of ESI at issue –Databases, video/audio, non-US sources Preservation steps for archived data Use of search terms or other analytical technologies to identify responsive ESI Form of production (more later…)

11 DOJ Standard Documentation Subpoena / CID / Second Request definitions and instructions Electronic Production Letter Questions About Electronic Systems and Back-up / Archiving Policies Standard Specifications for Summation Database Production

12 Privilege Issues Antitrust Division pioneered clawback agreements years ago Tiered structure – depending on length of time between production and notification Designate neutral staff lawyer to resolve disputes, process for appeal But … uncertainty about future approach

Form of Production

14 DOJ Production Format DOJ Antitrust Division has big investment in Summation application and supporting staff –Require production in Summation database format to their precise specifications Must produce all specified metadata intact –Critically important in determining method of collection Require links to native.xcl and.ppt files –May consider native-only production Unlike FTC, DOJ firewall issues may not permit ASP to host DOJ’s production database

15 State AG Investigations Often ask for nearly everything produced to DOJ/FTC, plus additional state-specific materials Often do not have litigation database/support capability (e.g., “give me paper”) –But…more willing to work with ASP hosted solution Additional confidentiality concerns re FOIA-type regulations and sharing among numerous states

16 Other Agencies Recent investigations have asked for: –PDF images on multiple copies of CD-ROMs (FCC) –Paper (US Attys, DOD) –Online repositories (FTC)