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Illinois State Bar Association December 2, 2011

Presented by: George Bellaswww.bellas-wachowski.com

It’s no longer on paper It’s all in the computers Snail Mail is dying 103 billion emails a day 43 billion IM’s a day Some of this

information is useful. We need to get the

useful info and then figure out how to use it.

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What is e-Discovery? the collection,

preparation, review and production of ESI which is relevant to a legal proceeding.

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Storage Devices:

Desktop Computers/Hard Drives/Laptops Backup Tapes Portable Flash Drives, Floppy, Zip and Jaz Diskettes Optical Media - CDs, CD-Roms, DVDs Home Computers PDAs, Blackberry® smartphones and Cell Phones Digital Cameras and Flash Media Voicemail Fax Machines, Copiers and Printers iPod® and iPad® mobile digital devices, Kindle™

and Nook ™ eReaders, etc.4

e-Mission Impossible? Get the ESI needed for your case and

then figure out how to use it.

But with computers this is not always easy to do – results in a lot of litigation and is very costly. 5

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Benefits to Small Firms Corporate Defendants are fearful

of e-discovery and the amendments to the federal rules

e-discovery makes it easier for small firms to compete with big business

One Person and One Computer can conduct a document review

e-discovery equalizes the process IF DONE ECONOMICALLY

e-Admissibility – What’s admissible evidence?

Traditional Rules of evidence still apply• Authentication• Relevant

Probative Value vs. Unfair Prejudice• Hearsay• Best Evidence Rule . . but what’s the

original document?

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Admissibility of ESI Lorraine v. Markel American Insurance

Company, 241 F.R.D. 534 (D.MD. 2007)

• a landmark decision about the admissibility and authentication of digital evidence

• established a detailed baseline for the use of ESI

• Given the guidelines and references provided by the judge, it now becomes difficult for counsel to argue against the admissibility of electronic evidence.

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Illinois Rules for e-Discovery Rule 201(b)(1) defines documents to

include “all retrievable information in computer storage”

Rule 214 requires production of all retrievable information in computer storage in printed form.

OUTDATED ! ! ! ! 9

Illinois Courts’ Simplistic Approach

Comments to Rule 214 – reason for production of paper . . . .

“. . . intended to prevent parties producing information from computer storage on storage disks . . . Which may frustrate the party requesting discovery from being able to access the information produced.”

Outdated and ignores the importance of the original data.

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“tif” is just a Picture This is what you are currently getting in

discovery! Defendant prints out and images a .tif file

• Many files take up more than 1 page (spreadsheets)• Result is data spread over more than one page

resulting in separate .tif images• All underlying formulae are stripped and it is not

searchable – A .tif is just a picture of a document! To salvage it, OCR is administered

• But OCR is inherently error prone • OCR spell checking does correct errors• Numeric data cannot be spell-checked

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Effects of a “tif” tactic . . .

By the time you get an edited picture of a picture . . . .• Usability – Gone• Searchability – Crippled• Integrity – Destroyed• Content – MisrepresentedIf you want to get the useful METADATA and see the document in its original format , you must insist on getting the ORIGINAL ESI FILES . . . but be careful for what you ask for!

Courts are getting it ! ! !Rather than simply copying the electronic media to permit ... search and review ... on a computer screen, the plaintiffs spewed the digital production onto paper and then copied the paper for review. Thus, the court must disagree with the plaintiffs counsel’s assertion that this case was a paradigm of efficient litigation.

In re Instinet Group, 2005 Del.Ch. LEXIS 195 (Del.Ch. 2005)

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E-Discovery = $ + $ The cost of pursuing e-

discovery issues is prohibitive for most small offices . . . .

e-discovery threatens to eat up the value of litigation

New Rules attempt to make the process more affordable 14

Federal Rules – a Ray of Light!

Amendments effective on 12/6/06 specifically address ESI

The drafters noted that “the discovery of ESI is becoming more time consuming, burdensome and costly.”

These rules have changed the pretrial dynamic in federal court . . . And in state courts!

Fear Not the Federal Rules We can use the new

federal rules for e-discovery as guide posts

Embrace the federal rules and case law . . . They have paved the road for rules changes now b

Use the Force, Luke!

Why should we consider the new federal rules ? ? ?

Because it can be used as precedence in the absence of any applicable local rules . . . and Illinois has no rules right now.

Because States are adopting the federal rules and the Principles promulgated by the 7th Circuit E-Discovery Committee

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“ESI” – FRCP 34Defines ESI

Adopted with the Amendments to the Federal Rules of Civil Procedure in 2006.

ESI is “Electronically Stored Information” and includes all discoverable information

ESI is subject to production under Rule 34(a) One new battlefield . . . under Rule 34(b) the form of

production of ESI can be specified by the requesting party in a

request, or thereafter by a responding party in a response But if not specified, it must be produced in

the form in which is ordinarily maintained.

Format for Production of ESI Rule 34(b) requires the party

requesting ESI to specify the format in which information should be produced.

If not specified, the Rule permits the responding party to produce ESI either in:• the format in which it is ordinarily

maintained, or• a format that is reasonably usable

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The big change is the Meet and Confer

requirement of Rule 16

Required Disclosures• Rule 16(b) scheduling orders should

include provisions for disclosure of ESI• Parties are required to discuss

preservation and disclosure of ESI at Rule 26 planning conferences in a “Meet and Confer” meeting.

• Parties are required to include ESI in their initial disclosures under Rule 26(a).

• ASK FOR RECORD MANAGEMENT PROCEDURES AND POLICIES!

7th Circuit’s E-Discovery Pilot Program

Chair: Chief Judge James Holderman Includes lawyers, in-house counsel

and consultants.Several Lawyers are here today.

Primary Goal is to change the pretrial dynamic to lessen the cost of e-discovery.

Principle 1.01 – Purpose

To “incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2)”

To help courts secure the “just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information without Court intervention.”

Cornerstones of the Principles

Cooperation

Proportionality

Principle 1.02 – Cooperation

An attorney’s zealous representation is not compromised by cooperating in discovery

Failure of counsel/party to cooperate in “facilitating and reasonably limiting discovery requests and responses” contributes to a “risk of sanctions”• Note: Read Fed. R. Civ. P. 26(g) and Mancia v. Mayflower

Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

Zealousness Dying concept No longer exists

in the ABA model rules

No longer has a place in our courts.

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Content Accessibility –the New Battlefield

FRCP allow responding parties to evaluate the relative expense and difficulty of producing information from one system (source) versus another.

The burden and costs may make the data “not reasonably accessible”

The question of what is – and what is not – reasonably accessible has already proven to be fertile grounds for disputes

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Reasonably Accessible – 7 Factors from Zubulake

The extent to which the request is specifically tailored to discover relevant information;

The availability of such information from other sources;

The total cost of production, compared to the amount in controversy;

The total cost of production, compared to the resources available to each party;

The relative ability of each party to control costs and its incentive to do so;

The importance of the issues at stake in the litigation; and

The relative benefits to the parties of obtaining the information.

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What isReasonably Accessible?

Under Rule 26(b)(2) the Zubulake “reasonably accessible” information rule is codified.

ESI that is not reasonably accessible due to undue burden or cost need not be initially produced, however the party claiming “inaccessibility” has the burden of proving inaccessibility

Proportionality Emerging law has shifted the costs of

recovery of data to the requesting party.

The old rules provided that the court could issue an order to protect a party against “undue burden or expense.”

This was used as a shield by Defendants.

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Court Response: “Proportionality”

Federal courts responded by developing a new set of rules. • See Zubalake I – 217 FRD 309

Accessible v. Inaccessible data The cost of producing Accessible data is

borne by the producing party The cost of producing Inaccessible data is

weighed under the 7 factor test developed by the Judge in Zubulake I and then codified in the Amendments. 31

Principle 1.03 – Proportionality Fed. R. Civ. P. 26(b)(2)(C)

proportionality standard should be applied in formulating a discovery plan

ESI production requests and responses “should be reasonably targeted, clear, and as specific as possible”• Note: Proportionality standard applies to all discovery,

even “accessible” ESI

Proportionality – Factors to Consider: What is the relevance of proposed discovery.

• This is a fundamental gate-keeping question. Is the discovery sought from a party or a nonparty? Does the discovery sought relate to a key player? Does the discovery relate to a key time period? Does the discovery relate to the core issues in the case? Does the discovery relate to a unique source of information? What are the burdens and costs involved? Is the information from a source that is not reasonably

accessible? What is the amount in controversy? What is the relative importance of issues at stake in the case? What are the relative resources of the parties?

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Principle 2.06 – Production Format

Requires a good-faith effort to agree on the format of ESI production at the initial 26(f) conference

If unable to agree, should be raised promptly with the court

ESI stored in a database can be produced by querying the database for information resulting in a report or other reasonably useable and exportable electronic file

Principle 2.06 – Production Format (Costs)

The requesting party is generally responsible for the cost of creating its copy of the requested information

Discussion of cost-sharing encouraged• Particularly when discussing the addition

of optical character recognition (OCR) or other upgrades of paper documents, or if non-text-searchable electronic information is contemplated by parties

State Courts New York is considering the adoption

of the Federal Rules New Jersey courts are acting on their

own to adopt the Principles California is working on its own set of

rules (no big surprise here)

Illinois . . . . is doing nothing . . . but something may be afoot.

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E-Discovery is Expensive The cost of pursuing e-

discovery issues is prohibitive

There are changes afoot to make the process more affordable

We need to take a more realistic approach to what we are seeking in discovery.

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Dirt Cheap Software Tools One Click Collect –

• harvests ESI Adobe Acrobat 9

• manages email discovery issues dtSearch

• Manages review of large collections of docs & email produced in native file

Breeze e-Discovery Suite• Scanning software that processes ESI

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Our Client’s Duties We have to preserve our client’s e-

discovery information Recent case by the same Judge who

decided the Zubulake case punished the Plaintiff’s attorneys

“those who cannot remember the past are condemned to repeat it”

Pension Committee v. Banc of America, 1/15/10 Amended Opinion

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Practice Suggestions

Use the Federal Rules as a guideline Focus on what you need, not what you

want. Cooperate with the other attorney.

Failure to cooperate will be punished. Find ways to minimize the cost of e-

discovery Protect your client from inadvertent

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Send Preservation Letters

Preservation Letters should be sent early in your case . . . even before you file suit.

Send one to your client as well! Start discovery with a scope of Discovery

Letter asking for production in a usable format

Practice Pointers . . . Don’t ask for everything! Be specific!

• The days of fishing expeditions are over! Follow up with Rule 201(k) letters and

offers to meet and confer. File motions to compel production which

include sufficient information to educate the judge on the seven criteria from the Committee Notes to Federal Rule 26(b)(2)• See Zubulake v. UBS Warburg LLC, 217 F.R.D.

309, 322 (S.D. N.Y. 2003).

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Practice Pointers . . . Submit a draft order itemizing ESI to be produced

with specificity and which provides a realistic time for production.

First insist on production of any document management policies of the opponent in every case.

Always insist on an affidavit of completeness of the production response.

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Metadata & Authenticity

Authenticity is established by producing the document in its native format.

But discovery of metadata can be expensive.

Work this out with your opponent.• Agree to forego production of metadata

unless authenticity is at issue.

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Hire a Consultant . . . . . E-discovery rules will

join lawyers and EDD vendors at the hip in an uneasy alliance

Hire a vendor who will provide a White Paper and sworn testimony and will take reasonable steps to get the information

Discovery Pilot Program

Seeking to advance the Principles in other jurisdictions

Web site:•www.discoverypilot.com

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Additional Resources:

Seventh Circuit Pilot Program:www.discoverypilot.com

Sedona Conference and Glossary:www.thesedonaconference.org/

EDRM: www.edrm.net/

Merrill Knowledge Source:www.merrillcorp.com/merrill-knowledge-source.htm

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In Summary . . . . Embrace Technology Learn the e-discovery rules Prepare before you file suit Be creative in what you seek Prepare for discovery in

advance Demand that provisions for

disclosure of ESI be included in the defendants’ responses

Be alert to your client’s situation

For a copy of this Power Point please go to our web site:

http://www.bellas-wachowski.com/lawyer-attorney-1746778.html

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