“PRESERVATION, COLLECTION, AND PRODUCTION OF DOCUMENTS AND ESI IN CONSTRUCTION CASES” PRESENTERS: John Foust Jones Day San Francisco, CA John Foust Jones Day San Francisco, CA U.S. Magistrate Judge Robert B. Collings U.S. District Court, District of Massachusetts U.S. Magistrate Judge Robert B. Collings U.S. District Court, District of Massachusetts 1 American Bar Association Forum on the Construction Industry 2012 Fall Meeting

CHALLENGES WITH DOCUMENTS AND ESI IN CONSTRUCTION CASES Factors that Make Documents and ESI Challenging in Construction Cases Huge volumeHuge volume Broad scope of relevanceBroad scope of relevance Large amount of non-text-readable dataLarge amount of non-text-readable data 2

PRESERVATION OF DOCUMENTS, INCLUDING ESI Current State of the Law Duty attaches as soon as there is “anticipation of litigation”Duty attaches as soon as there is “anticipation of litigation” Scope extends to all documents and ESI relevant to the subject matter of the disputeScope extends to all documents and ESI relevant to the subject matter of the dispute Duty to preserve requires a litigation hold and suspension of routine destructionDuty to preserve requires a litigation hold and suspension of routine destruction Requires communication with key players about preservation obligationsRequires communication with key players about preservation obligations 3

PRESERVATION OF DOCUMENTS, INCLUDING ESI Application in the Construction Industry Determining when there is “anticipation of litigation”Determining when there is “anticipation of litigation” Will probably turn on specific factsWill probably turn on specific facts Work with client to issue preservation letter and ensure that necessary documents are preservedWork with client to issue preservation letter and ensure that necessary documents are preserved 4

COLLECTION AND PRODUCTION OF HARD COPY DOCUMENTS Current State of the Law All relevant, responsive, non-privileged documents must be producedAll relevant, responsive, non-privileged documents must be produced Either as maintained in the ordinary course of business, or organized to respond to requestsEither as maintained in the ordinary course of business, or organized to respond to requests Growing trend for courts to set protocols, especially in larger casesGrowing trend for courts to set protocols, especially in larger cases 5

COLLECTION AND PRODUCTION OF HARD COPY DOCUMENTS Application in the Construction Industry Identify the record set of project documentsIdentify the record set of project documents Desk-side interviews with key players and custodiansDesk-side interviews with key players and custodians Identify “working files” used by the people working on the projectIdentify “working files” used by the people working on the project Make originals available or produce scanned images (with OCR) or use a combinationMake originals available or produce scanned images (with OCR) or use a combination 6

COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION Current State of the Law Identify “key players”Identify “key players” Collect all relevant data associated with each key playerCollect all relevant data associated with each key player Produce data in the form in which ordinarily maintained or “in a reasonably usable form”Produce data in the form in which ordinarily maintained or “in a reasonably usable form” Take care to produce unaltered metadataTake care to produce unaltered metadata Growing trend for special masters and protocolsGrowing trend for special masters and protocols 7

COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION Application in the Construction Industry Start by locating all potential sources of ESIStart by locating all potential sources of ESI Identify the various types of filesIdentify the various types of files Create a comprehensive planCreate a comprehensive plan 8

Some Suggested Practices Consider segregating text-readable filesConsider segregating text-readable files Process non-text-readable data efficientlyProcess non-text-readable data efficiently Consider producing nativesConsider producing natives Provide access to hosted dataProvide access to hosted data Use digital parameters to help structure document reviewUse digital parameters to help structure document review 9 COLLECTION AND PRODUCTION OF ELECTRONICALLY STORED INFORMATION

CONCLUDING THOUGHTS Preservation Watch out for signs that litigation is anticipatedWatch out for signs that litigation is anticipated Issue litigation hold and suspend all routine destruction of documents and ESIIssue litigation hold and suspend all routine destruction of documents and ESI Identify sources and custodians early by desk- side interviews, and consider collecting and storing ESI for safe measureIdentify sources and custodians early by desk- side interviews, and consider collecting and storing ESI for safe measure 10

CONCLUDING THOUGHTS Collection and Production Plan aheadPlan ahead Conduct a thorough investigation to identify sources and types of documents and ESIConduct a thorough investigation to identify sources and types of documents and ESI Devise a comprehensive plan for collecting and producing in a way that treats each type and source according to its own needsDevise a comprehensive plan for collecting and producing in a way that treats each type and source according to its own needs 11