1 eDiscovery & eRetention: Facing the Challenge Presented by: Thomas Greene Special Assistant Attorney General September 22, 2008

2 Overview Why Are Lawyers Knocking on My Door? Why Are Lawyers Knocking on My Door? Federal Developments Federal Developments Amended rules for “Electronically Stored Information” (ESI) effective 12/1/06 Amended rules for “Electronically Stored Information” (ESI) effective 12/1/06 State Law Developments State Law Developments Proposed amendments to CA Code of Civil Procedure and Rules of Court (AB 926 (Evans).) Spoliation and Litigation Holds Spoliation and Litigation Holds

3 How is Information Created? Over 92% of information is created electronically. Over 92% of information is created electronically. School of Information Management and Systems U.C. Berkeley November 2003

4 How is Information Stored? 70% of e-documents are never printed. 70% of e-documents are never printed. Considering only paper documents is the equivalent of ignoring 7 of 10 file drawers of potentially relevant information. Considering only paper documents is the equivalent of ignoring 7 of 10 file drawers of potentially relevant information.

5 E-Documents Are Often Powerful Evidence at Trial Far more candid, far less guarded. Far more candid, far less guarded. “The Litigation Gift That Keeps On Giving” “The Litigation Gift That Keeps On Giving” Microsoft, Edw. Jones Microsoft, Edw. Jones Metadata can be probative, e.g., date of preparation, source of prior versions of documents or receipt by specific individual. Metadata can be probative, e.g., date of preparation, source of prior versions of documents or receipt by specific individual.

6 Electronically Stored Information (ESI) FRCP 34(a):”…electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained— translated, if necessary, …into reasonably useful form…” FRCP 34(a):”…electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained— translated, if necessary, …into reasonably useful form…” Proposed CA CCP § : “information that is stored in an electronic medium.” Proposed CA CCP § : “information that is stored in an electronic medium.”

7 Four Concepts in the Federal ESI Rules and Proposed State Rules Early Consideration of ESI issues Early Consideration of ESI issues Two-Tier Approach to Back-up Media Two-Tier Approach to Back-up Media Practical Adjustments Practical Adjustments Shallow Safe Harbor for E-Document Destruction Shallow Safe Harbor for E-Document Destruction

8 Helpful Resource 26-Page “ Pocket Guide” to ESI from the Federal Judicial Center, at le/eldscpkt.pdf 26-Page “ Pocket Guide” to ESI from the Federal Judicial Center, at le/eldscpkt.pdf le/eldscpkt.pdf le/eldscpkt.pdf Designed for attorneys and judges but written in plain English. Designed for attorneys and judges but written in plain English.

9 Critical Decisions Come Early In the Federal System Rule 26(f) Conference Among Counsel Rule 26(f) Conference Among Counsel ASAP but not later than 16 days before Rule 16 conference or issuance of scheduling order. ASAP but not later than 16 days before Rule 16 conference or issuance of scheduling order. Rule 26(a) disclosures of ESI Rule 26(a) disclosures of ESI At or w/in 14 days of 26(f) conference unless a different schedule per stipulation or order. At or w/in 14 days of 26(f) conference unless a different schedule per stipulation or order. Rule 16 Conference Order Rule 16 Conference Order ASAP but at least w/in 90 days of appearance of defendant or 120 days from service of complaint. ASAP but at least w/in 90 days of appearance of defendant or 120 days from service of complaint. CA Local Practices Also Suggest Early Review (“1-Geek Rule”) CA Local Practices Also Suggest Early Review (“1-Geek Rule”)

10 New Local Rules Federal N.D. Cal. Civil Local Rule 16-9 requires a description of: Federal N.D. Cal. Civil Local Rule 16-9 requires a description of: “Steps taken to preserve evidence relevant to the issues reasonably evident in the action, including interdiction of any document- destruction program and any ongoing erasures of s, voic s, and any other electronically-stored material.” ( “Steps taken to preserve evidence relevant to the issues reasonably evident in the action, including interdiction of any document- destruction program and any ongoing erasures of s, voic s, and any other electronically-stored material.” (Standing Order for All Judges of the Northern District of California re: Contents of Joint Case Management Statement (March 1, 2007) at CAND/Judges.nsf/700c1c62613a833e88256d48005fd21b)

11 Better Guidance on What to Cover at Early Conferences Maryland D.Ct. issues useful protocol ( Maryland D.Ct. issues useful protocol (Suggested Protocol for Discovery of Electronically Stored Information (D.Md.2007), at “Gold” standard but delimits obligations “Gold” standard but delimits obligations

12 Implications for CIOs Early conferences with lawyers on what you have and how it is stored. Early conferences with lawyers on what you have and how it is stored. Probable participation in early conferences with opposing counsel. Probable participation in early conferences with opposing counsel. Possible testimony to describe and explain systems at case management conference and at Person Most Knowledgeable (PMK) deposition. Possible testimony to describe and explain systems at case management conference and at Person Most Knowledgeable (PMK) deposition.

13 Two-Tier Approach; Rule 26(b)(2)(C) “A party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible” “A party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible” But Advisory Committee states that retention obligation continues even if don’t have to produce. But Advisory Committee states that retention obligation continues even if don’t have to produce. Demanding party can motion for production if value outweighs burden;. Demanding party can motion for production if value outweighs burden;. Burden of persuasion on producing party to show why too costly/irrelevant to produce. Burden of persuasion on producing party to show why too costly/irrelevant to produce.

14 California Proposal Challenger bears “burden of demonstrating that information is from a source that is not reasonably accessible because of undue burden or expense.” (CCP § (g).) Challenger bears “burden of demonstrating that information is from a source that is not reasonably accessible because of undue burden or expense.” (CCP § (g).) But responder need not pay to “translate any data compilations”, i.e. recovery from back-up tapes. (CCP § (g); see also Toshiba v. Superior Court (Lexar) (2004) 124 Cal.App.4 th 762.) But responder need not pay to “translate any data compilations”, i.e. recovery from back-up tapes. (CCP § (g); see also Toshiba v. Superior Court (Lexar) (2004) 124 Cal.App.4 th 762.)

15 Forms of Production FRCP 34(b) authorizes demanding party to “specify the form or forms in which [ESI] is to be produced”. FRCP 34(b) authorizes demanding party to “specify the form or forms in which [ESI] is to be produced”. Subject to challenge by responding party. Subject to challenge by responding party. Can specify different forms for spreadsheets and documents. Can specify different forms for spreadsheets and documents. CA proposal similar (CCP § (a)(2).) CA proposal similar (CCP § (a)(2).)

16 Bringing E- Documents into Evidence: Lorraine v. Markel Bringing E- Documents into Evidence: Lorraine v. Markel (D. Md. 2007) 241 F.R.D. 534 Authentication Authentication Testimony of System Administrator Testimony of System Administrator Hash marks Hash marks Metadata Metadata Inscriptions, marks, tags Inscriptions, marks, tags Hearsay Exceptions Hearsay Exceptions Excited utterance; business record Excited utterance; business record

17 Implications for CIOs More likely to have to preserve and produce information with original metadata. More likely to have to preserve and produce information with original metadata. May have to testify to “authenticate” electronic records. May have to testify to “authenticate” electronic records.

18 “Shallow Safe Harbor” FRCP 37(f) provides that “absent exceptional circumstances, a court may not impose sanctions…[for ESI]… lost as a result of the routine, good-faith operation of an electronic information system.” FRCP 37(f) provides that “absent exceptional circumstances, a court may not impose sanctions…[for ESI]… lost as a result of the routine, good-faith operation of an electronic information system.” Proposed CA CCP § (i): No sanction if loss due to “routine, good faith operation of electronic system” but no alteration “of any obligation to preserve discoverable information.” Proposed CA CCP § (i): No sanction if loss due to “routine, good faith operation of electronic system” but no alteration “of any obligation to preserve discoverable information.”

19 Spoliation Sanctions Adverse Inference Instruction Adverse Inference Instruction Truly ugly in competent hands Truly ugly in competent hands Monetary Monetary Most common Most common Evidence or Issue Evidence or Issue A focused remedy that can put injured party in position would have been absent spoliation A focused remedy that can put injured party in position would have been absent spoliation Terminating Terminating Only in most egregious circumstances but a number of reported cases Only in most egregious circumstances but a number of reported cases

20 Litigation Hold is Crucial is typically destroyed on a 30, 60 or 90 day cycle. is typically destroyed on a 30, 60 or 90 day cycle. Voice Mail is typically destroyed in days. Voice Mail is typically destroyed in days. If don’t act fast, the evidence is gone. If don’t act fast, the evidence is gone.

21 Litigation Hold Policy: Basic Elements Who sets? Who sets? When set? When set? Focus on “key players”, specific time periods and relevant topics. Focus on “key players”, specific time periods and relevant topics. Secure back-up media. Secure back-up media. Secure home PCs, “private” collections. Secure home PCs, “private” collections. Monitor and follow up regularly. Monitor and follow up regularly. Document what you do. Document what you do.

22 Resources Electronic Discovery and Evidence by Michael Arkfeld Electronic Discovery and Evidence by Michael Arkfeld Sedona Conference (sedonaconference.com) Sedona Conference (sedonaconference.com) Internet resources Internet resources Discoveryresources.org; krollontrack.com; FIOS.com; applieddiscovery.com Discoveryresources.org; krollontrack.com; FIOS.com; applieddiscovery.com

23 Conclusion Sanctions for failing to properly secure and produce e-evidence Draconian. Sanctions for failing to properly secure and produce e-evidence Draconian. E-discovery is and will be a major CIO responsibility. E-discovery is and will be a major CIO responsibility. Technology and law changing so quickly that CIOs and lawyers need to work in partnership. Technology and law changing so quickly that CIOs and lawyers need to work in partnership.