e-discovery for small civil cases e... · to sum up: as you know, once you are a party to pending...

Vermont Bar Association

Seminar Materials

E-Discovery for Small Civil Cases

October 14, 2016

Lake Morey Resort

Fairlee, VT

Speakers:

Hon. William Cohen

David Fenster, Esq.

James Knapp, Esq.

Greg Weimer, Esq.

September 19, XXXX

PERSONAL & CONFIDENTIAL PRIVILEGED ATTORNEY CLIENT COMMUNICATION

John Doe, Esq. General Counsel ABC, LLC Suite 600 1111 Jones Avenue, N. W. Johnston, MI 20036 Re: EFG Corp. v. ABC, LLC, Docket No. ###### Dear John: I am writing in connection with the above-referenced lawsuit and the Company’s obligation to take steps to preserve potential evidence, particularly electronically stored information (“ESI”) that may be relevant to this lawsuit. We understand that you have advised the individuals most likely to have discoverable information of the need to preserve potential evidence by way of an e-mail dated [insert date] as well as through other means. We are writing to you in an effort to assist you in identifying potential steps you and other agents of the Company may take to fulfill the Company’s obligation to preserve potential evidence. Courts are placing in-house counsel and outside counsel under increasing scrutiny to ensure that genuine steps are taken as early as possible in litigation to preserve potential evidence, particularly ESI which may be erased or destroyed periodically as a matter of business practice. Under recent case law and new discovery rules adopted within the Federal Rules of Civil Procedure, parties to litigation are required to identify, protect, preserve and produce potentially relevant ESI at the earliest stages of a lawsuit. Most significantly, steps must be taken as soon as possible to prevent destruction of ESI that may take place during the normal day to day operation of computer equipment such as through routine disk de-fragmentation programs, through file overwriting or intentional deletion of ESI. The Scope of Information to be Retained

A corporation need not preserve every piece of paper or electronic information. But a party to a suit must not destroy unique, relevant evidence which may be useful to an adversary. A party to a suit is under a duty to preserve what it knows or should reasonably know is relevant to the claims in the suit. The duty to preserve extends to any documents or information created by individuals likely to have relevant information relating to the claims in the suit or which is relevant to the subject matter involved in the case. Therefore, the duty to preserve covers the “key personnel,” those employees and management likely to have relevant information. A party must retain all relevant documents (but not all identical copies) in existence when the duty to preserve the rose, as well as, any relevant documents created after that time. Information to be preserved can also be found in home personal computers used for work purposes, PDAs such as Blackberries and iPhones that are used for business purposes and may contain emails and text messages relevant to litigation. There are several options available to the Company for accomplishing its obligations under the discovery rules: retain all existing backup tapes for the “key personnel,” create a catalog of any later created documents and separate electronic files or create a “mirror image” of the computer system taken at the time the duty to preserve arose. Information Specific to This Case At this early stage in the litigation, and based on our conversations, the allegations in the Complaint and the likely defenses we have identified as of this date, the following personnel appear to be key individuals who are likely to have possession or control over potential electronic or documentary evidence which may need to be preserved pending completion of the litigation:

Potential Key Personnel

Role

John Doe TBD John Doe Technology Director John Doe TBD John Doe CEO John Doe TBD John Doe TBD John Doe TBD John Doe TBD John Doe TBD John Doe TBD John Doe Dir. of Marketing John Doe TBD John Doe TBD John Doe, Esq Counsel to Company

Please provide a copy of the enclosed “Mandatory Preservation Notice” to each of these individuals to read. Once they have done so have them sign and return the enclosed verification form to your office. Please copy us on the completed forms. In addition, the following topics are likely to have a bearing on the claims and allegations of a lawsuit:

TOPICS Communications with EFG and its agents concerning lack of web engine and meaning

of Exhibit A to License Agreement Communications with EFG concerning unsatisfactory performance under Licensing

Agreement Communications with EFG in negotiating Licensing Agreement including all drafts and

revisions exchanged between EFG and ABC, especially communications and drafts relating to Exhibit A

Communications within ABC concerning EFG Licensing Agreement

It is also important to share this letter or a summary of this letter with the appropriate Information Technology (“IT”) employees in your Company so that they can determine which computer systems are utilized by the key personnel and how best to preserve the information in the most efficient and cost effective way. They will need to address the following types of questions: Network Servers ● How is each network server backed up? ● How far back does a complete backup go? ● Has your backup system changed since the time you began to prepare backup tapes? ● How often are backup tapes made? ● Where are backup tapes stored? ● What is the oldest backup tape still preserved? ● As of what date do you still maintain at least one complete (non-incremental) backup of

your network servers? E-mail servers ● What systems have you used for e-mail and/or text messaging during what time period

has each such system been in use?

● Where are emails stored now? (end user’s hard drive; e-mail server; third party application service provider; Personal Digital Assistant (PDA)) ● When did you begin to backup e-mail servers? ● What is the oldest e-mail backup tape you still retain? ● Do you recycle e-mail backup tapes on a regular basis? ● Are employee desktop and laptop hard drives backed up in any way? If so, when did

these backups begin? How long are such backups retained? ● As a matter of policy are employees desktop and laptop are drives erased or reformatted before such hard drives are abandoned, transferred or decommissioned? ● Do your employees utilize blackberries or other similar handheld devices for sending and

receiving emails? If so, are there any backup procedures in place for those devices? Are text messages relating to business saved?

Electronic Databases ● Have you or any of the Company’s employees created any electronic databases for

records related to the topics listed above? Conclusion To sum up: as you know, once you are a party to pending litigation, you must take affirmative steps to preserve potential evidence that might otherwise be destroyed in the usual course of business. You should suspend any automated document destruction policies or email deletion policies you have in place. You should ensure that back up tapes are not routinely recycled. You should take steps to notify employees with potential relevant information in their home computers and smart phones or other storage devices to save and copy that information and to provide it to you. These procedures should remain in effect while this lawsuit is pending. We will be happy to consult with you and your IT department on implementing this process. While these steps may seem overly burdensome, they are not recommended lightly. There has been a recent and increasingly common trend in litigation where corporations have been sanctioned for failing to preserve electronic documents, such as emails, at the first sign of a lawsuit. As always, if you have any questions related to this letter please feel free to call. Very truly yours,

RULE 16.2 ISSUES

• Parties disclosed their respective ESI• Parties met and conferred pursuant to 26(f)• Discussed and agreed to preservation procedures • Discussed and agreed on the form(s) of production• Discussed and agreed upon Clawback and/or Quick Peek Agreements• In addition, the parties discussed how they will sample,if at all, inaccessible data.• Scheduling Order Issued by Judge that includes these items

VRCP 26 CHANGES • 26(b)(1) party need not provide ESI from sources

not reasonably accessible because of undue burden or cost

Rule 26(f) now prudent for parties todiscuss all electronic discovery issues priorto the scheduling conference

• This initial “meet and confer” should take placewell prior to the scheduling conference.

VRCP 26 CLAIMS OF PRIVILEGE

• Producing party may notify receiving of inadvertent production and basis for party assertion of privilege.

• After such notice receiving party must promptly

• return

• sequester

• or destroy

the specified information

VRCP 26

DISPUTE RESOLUTION MECHANISM

• Receiving party has option to present the information at issue to the court under seal for resolution prior to returning materials to producing party.

WHAT RULE 26 DOES NOT ADDRESS

As the committee notes to the Rule state, the Rule establishes a procedure for a privilege claim. “Whether the production operates as a waiver is left for case-by case determination…”

The rule merely provided a procedure for presenting and addressing these issues.

THE TROUBLE WITH HARRY

• “Claw back” provisions don’t necessarily solve the waiver/inadvertent production problem.

• The law of waiver will still apply.

THE TROUBLE WITH HARRYThree approaches to the waiver question:

• Strict waiver – “you snooze, you lose”

• Lenient – no waiver unless negligence amounts to knowing relinquishment of privilege

• Middle of the road

THE TROUBLE WITH HARRYMiddle of the road test

• Waiver depends on a number of factors:

• volume of information produced

• amount of privilege information

• reasonableness of precautions taken

• promptness of action to correct error

PRIVILEGE WAIVER CASES

• Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008)

• Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

• U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009)

• Coburn Group, LLC v. Whitecap Advisors, LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009)

• Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009)

VRCP 34

• Requesting party may specify form of ESI

• If responding party objects they must specify form they will produce

• Default form- If no form is specified responding party must produce in form ordinarily maintained or in a reasonably usable form

VRCP 37(F) “SAFE HARBOR”

• Spoliation Issue

• No Sanctions if:

• Reasonable steps taken to preserve ESI

• ESI Was lost through routine operation

SAFE HARBOR

• Things that are bad

• Failure to suspend auto delete email programs/policies

• Failure to instruct people to hold/preserve data

• Erasing software and data after notice of suit. (very very bad)

F.R.E. 502- PROPOSED V.R.E. 502

• It recognizes the challenges presented by the volume of electronic discovery and proposes new standards to address inadvertently disclosed privileged materials.

• Would make “claw back” agreements enforceable against claims of third parties in federal and state court if the agreements are incorporated into a federal court scheduling order or confidentiality order.

F.R.E. 502

Rule adopts a:

• Middle-ground standard re: waiver

• Waiver will not result where party took “reasonable precautions” to prevent disclosure

• Took “reasonably prompt measures” to correct the error

Particular Rules of Evidence

Relevancy Rule 104. Preliminary Questions

(a) Questions of admissibility generally. Preliminary questions concerning the qualification

of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be

determined by the court, subject to the provisions of subdivision (b); provided that in a criminal

case if the court rules that a confession is voluntary, the confession may be admitted but the issue

of voluntariness shall be submitted to the jury. In making a determination under this subdivision,

the court is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the

fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be

conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so

conducted when the interests of justice require or, when an accused is a witness, if he so

requests.

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter,

subject himself to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the

jury evidence relevant to weight or credibility.

Relevancy Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as limited by constitutional requirements or as

otherwise provided by statute or by these rules or by other rules prescribed by the Supreme

Court. Evidence which is not relevant is not admissible.

Hearsay Rule 801. Definitions

The following definitions apply under this Article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a

person, if it is intended by him as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if -

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to

cross-examination concerning the statement, and the statement is (A) inconsistent with his

testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other

proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an

express or implied charge against him of recent fabrication or improper influence or motive, or

(C) one of identification of a person made after perceiving him; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) his own

statement, in either his individual or a representative capacity, or (B) a statement of which he has

manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to

make a statement concerning the subject, or (D) a statement by his agent or servant concerning a

matter within the scope of his agency or employment, made during the existence of the

relationship, or (E) a statement by a co-conspirator of a party during the course and in

furtherance of the conspiracy. A statement by a co-conspirator may only be admitted if the court

finds that the declarant is unavailable and that there is sufficient indicia of reliability to show its

trustworthiness.

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the

Supreme Court or by statute.

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a

witness:

(1) Present sense impression. A statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.

(3) Then-existing mental, emotional, or physical condition. A statement of the declarant's

then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain and bodily health), but not including a statement of memory

or belief to prove the fact remembered or believed unless it relates to the execution, revocation,

identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes

of medical diagnosis or treatment and describing medical history, or past or present symptoms,

pain, or sensations.

(5) Recorded recollection. A memorandum or record concerning a matter about which a

witness once had knowledge but now has insufficient recollection to enable him to testify fully

and accurately, shown to have been made or adopted by the witness when the matter was fresh in

his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may

be read into evidence but may not itself be received as an exhibit unless offered by an adverse

party.

(6) Records of regularly conducted business activity. A memorandum, report, record, or data

compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the

time by, or from information transmitted by, a person with knowledge, if kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business activity to

make the memorandum, report, record, or data compilation, all as shown by the testimony of the

custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule

902(12) or a statute or rule permitting certification, unless the source of information or the

method or circumstances of preparation indicate lack of trustworthiness. The term "business" as

used in this paragraph includes business, institution, association, profession, occupation, and

calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6).

Evidence that a matter is not included in the memoranda, reports, records, or data compilations,

in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence

or nonexistence of the matter, if the matter was of a kind of which a memorandum, report,

record, or data compilation was regularly made and preserved, unless the sources of information

or other circumstances indicate lack of trustworthiness.

(8) Public records and reports.

(A) To the extent not otherwise provided in (B), records, reports, statements, or data

compilations in any form of a public office or agency setting forth its regularly conducted and

regularly recorded activities, or matters observed pursuant to duty imposed by law and as to

which there was a duty to report, or factual findings resulting from an investigation made

pursuant to authority granted by law.

(B) The following are not within this exception to the hearsay rule:

(i) investigative reports by police and other law enforcement personnel;

(ii) investigative reports prepared by or for a government, a public office or an agency

when offered by it in a case in which it is a party;

(iii) factual findings offered by the government in criminal cases;

(iv) any matter as to which the sources of information or other circumstances indicate

lack of trustworthiness.

(9) Records of vital statistics. Records or data compilations, in any form, of the fact of births,

fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to

requirements of law.

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or

data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a

record, report, statement, or data compilation, in any form, was regularly made and preserved by

a public office or agency, evidence in the form of a certification in accordance with Rule 902, or

testimony, that diligent search failed to disclose the record, report, statement, or data

compilation, or entry.

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths,

legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or

family history, contained in a regularly kept record of a religious organization.

(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate

that the maker performed a marriage or other ceremony or administered a sacrament, made by a

clergyman, public official, or other person authorized by the rules or practices of a religious

organization or by law to perform the act certified, and purporting to have been issued at the time

of the act or within a reasonable time thereafter.

(13) Family records. Statements of fact concerning personal or family history contained in

family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits,

engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The record of a document

purporting to establish or affect an interest in property, as proof of the content of the original

recorded document and its execution and delivery by each person by whom it purports to have

been executed, if the record is a record of a public office and an applicable statute authorized the

recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property. A statement contained in a

document purporting to establish or affect an interest in property if the matter stated was relevant

to the purpose of the document unless dealings with the property since the document was made

have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in existence 20 years or more

whose authenticity is established.

(17) Market reports, commercial publications. Market quotations, tabulations, lists,

directories, or other published compilations, generally used and relied upon by the public or by

persons in particular occupations.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-

examination, or relied upon by him in direct examination, statements contained in published

treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art,

established as a reliable authority by the testimony or admission of the witness or by other expert

testimony or by judicial notice. If admitted, the statements may be read into evidence but may

not be received as exhibits.

(19) Reputation concerning personal or family history. Reputation among members of his

family by blood, adoption, or marriage, or among his associates, or in the community,

concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood,

adoption, or marriage, ancestry, or other similar fact of his personal or family history.

(20) Reputation concerning boundaries or general history. Reputation in a community, arising

before the controversy, as to boundaries of or customs affecting lands in the community, and

reputation as to events of general history important to the community or state or nation in which

located.

(21) Reputation as to character. Reputation of a person's character among his associates or in

the community.

(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or

upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a

crime, to prove any fact essential to sustain the judgment, but not including, when offered by the

government in a criminal prosecution for purposes other than impeachment, judgments against

persons other than the accused. A judgment is not admissible under this rule during the pendency

of an appeal therefrom.

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of

matters of personal, family, or general history, or boundaries, essential to the judgment, if the

same would be provable by evidence of reputation.

(24) Statements of a putative victim who is a minor. [Repealed.]

Rule 804. Hearsay Exceptions: Declarant Unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the

declarant:

(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning

the subject matter of his statement; or

(2) Persists in refusing to testify concerning the subject matter of his statement despite an

order of the court to do so; or

(3) Testifies to a lack of memory of the subject matter of his statement; or

(4) Is unable to be present or to testify at the hearing because of death or then existing

physical or mental illness or infirmity; or

(5) Is absent from the hearing and the proponent of his statement has been unable to procure

his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his

attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory,

inability, or absence is due to the procurement or wrongdoing of the proponent of his statement

for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is

unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a

different proceeding, or in a deposition taken in compliance with law in the course of the same or

another proceeding, if the party against whom the testimony is now offered, or, in a civil action

or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil

action or proceeding, a statement made by a declarant while believing that his death was

imminent, concerning the cause or circumstances of what he believed to be his impending death.

(3) Statement against interest. A statement which was at the time of its making so far

contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to

civil or criminal liability, or to render invalid a claim by him against another, that a reasonable

man in his position would not have made the statement unless he believed it to be true. A

statement tending to expose the declarant to criminal liability and offered to exculpate the

accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness

of the statement. A statement of confession offered against the accused in a criminal case, made

by a co-defendant or other person implicating both himself and the accused, is not within this

exception.

(4) Statement of personal or family history or concerning boundaries. (A) A statement

concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by

blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even

though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a

statement concerning the foregoing matters, and death also, of another person, if the declarant

was related to the other by blood, adoption, or marriage or was so intimately associated with the

other's family as to be likely to have accurate information concerning the matter declared; or (C)

a statement as to boundaries of land.

(5) [Reserved.]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the

declarant as a witness.

Authentication Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are

examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to

be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of

handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert

witness with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns,

or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through

mechanical or electronic transmission or recording, by opinion based upon hearing the voice at

any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to

the number assigned at the time by the telephone company to a particular person or business, if

(A) in the case of a person, circumstances, including self-identification, show the person

answering to be the one called, or (B) in the case of a business, the call was made to a place of

business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or

filed and in fact recorded or filed in a public office, or a purported public record, report,

statement, or data compilation, in any form, is from the public office where items of this nature

are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in

any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was

in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more

at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and

showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method of authentication or identification

provided by statute or by other rules prescribed by the Supreme Court.

Rule 902. Self-authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with

respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that

of the United States, or of any state, district, commonwealth, territory, or insular possession

thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political

subdivision, department, officer, or agency thereof, and a signature purporting to be an

attestation or execution.

(2) Domestic public documents not under seal. (A) A document purporting to bear the

signature in his official capacity of an officer or employee of the State of Vermont, or of any

political subdivision, department, or agency thereof. (B) A document purporting to bear the

signature in his official capacity of an officer or employee of any other entity included in

paragraph (1) hereof, if accompanied by a certificate under oath of such person that he acts in

that capacity or if a public officer having a seal and having official duties in the district or

political subdivision of the officer or employee certifies under seal that the signer has the official

capacity and that the signature is genuine.

(3) Foreign public documents. A document made authentic by treaty between the United

States and a foreign country or, if no treaty applies, a document purporting to be executed or

attested in his official capacity by a person authorized by the laws of a foreign country to make

the execution or attestation, and accompanied by a final certification as to the genuineness of the

signature and official position (A) of the executing or attesting person, or (B) of any foreign

official whose certificate of genuineness of signature and official position relates to the execution

or attestation or is in a chain of certificates of genuineness of signature and official position

relating to the execution or attestation. A final certification may be made by a secretary of

embassy or legation, consul general, consul, vice consul, or consular agent of the United States,

or a diplomatic or consular official of the foreign country assigned or accredited to the United

States. If reasonable opportunity has been given to all parties to investigate the authenticity and

accuracy of official documents, the court may, for good cause shown, order that they be treated

as presumptively authentic without final certification or permit them to be evidenced by an

attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein,

or of a document authorized by law to be recorded or filed and actually recorded or filed in a

public office, including data compilations in any form, certified as correct by the custodian or

other person authorized to make the certification, by certificate complying with paragraph (1),

(2), or (3) of this rule or complying with any statute of the United States or the State of Vermont

or rule prescribed by the Supreme Court.

(5) Official publications. Books, pamphlets, or other publications purporting to be issued by

public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or

periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been

affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment

executed in the manner provided by law by a notary public or other officer authorized by law to

take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and

documents relating thereto to the extent provided by general commercial law.

(10) Presumptions created by statute. Any signature, document, or other matter declared by

any statute of the United States or of the State of Vermont to be presumptively or prima facie

genuine or authentic.

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of

a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if

accompanied by a written declaration of its custodian or other qualified person, made under oath,

certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from

information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written

notice of that intention to all adverse parties, and must make the record and declaration available

for inspection sufficiently in advance of their offer into evidence to provide an adverse party

with a fair opportunity to challenge them.

(12) Certified foreign records of regularly conducted activity. The original or a duplicate of a

foreign record of regularly conducted activity that would be admissible under Rule 803(6) if

accompanied by a written declaration by its custodian or other qualified person certifying that the

record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from

information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to

criminal penalty under the laws of the country where the declaration is signed. A party intending

to offer a record into evidence under this paragraph must provide written notice of that intention

to all adverse parties, and must make the record and declaration available for inspection

sufficiently in advance of their offer into evidence to provide an adverse party with a fair

opportunity to challenge them.

Rule 903. Subscribing Witness' Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing unless required

by a statute of this state.

Rule 1001. Definitions

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, sounds, or

numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating,

photographing, magnetic impulse, mechanical or electronic recording, or other form of data

compilation.

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and

motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording itself or any

counterpart intended to have the same effect by a person executing or issuing it. An "original" of

a photograph includes the negative or any print therefrom. If data are stored in a computer or

similar device, any printout or other output readable by sight, shown to reflect the data

accurately, is an "original."

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the

original, or from the same matrix, or by means of photography, including enlargements and

miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other

equivalent techniques, which accurately reproduces the original.

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or

photograph is required, except as otherwise provided in these rules or by statute.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised

as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the

duplicate in lieu of the original.

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or

photograph is admissible if -

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the

proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or

procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of

the party against whom offered, he was put on notice, by the pleadings or otherwise, that the

contents would be subject to proof at the hearing, and he does not produce the original at the

hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a

controlling issue.

Rule 1005. Public Records

The contents of an official record, or of a document authorized to be recorded or filed and

actually recorded or filed, including data compilations in any form, if otherwise admissible, may

be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a

witness who has compared it with the original. If a copy complying with the foregoing cannot be

obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot conveniently be

examined in court may be presented in the form of a chart, summary, or calculation. The

originals, or duplicates, shall be made available for examination or copying, or both, by other

parties at a reasonable time and place. The court may order that they be produced in court.

Rule 1007. Testimony or Written Admission of Party

Contents of writings, recordings, or photographs may be proved by the testimony or deposition

of the party against whom offered or by his written admission, without accounting for the

nonproduction of the original.

Rule 1008. Functions of Court and Jury

When the admissibility of other evidence of contents of writings, recordings, or photographs

under these rules depends upon the fulfillment of a condition of fact, the question whether the

condition has been fulfilled is ordinarily for the court to determine in accordance with the

provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever

existed, or (b) whether another writing, recording, or photograph produced at the trial is the

original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for

the trier of fact to determine as in the case of other issues of fact.

Applicability of the Rules of Evidence Rule 1101. Applicability of Rules

(a) Rules applicable. Except as otherwise provided in subdivision (b), these rules apply to all

actions and proceedings in the courts of this state.

(b) Rules inapplicable. The rules other than those with respect to privileges do not apply in

the following situations:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to

admissibility of evidence when the issue is to be determined by the court under Rule 104(a).

(2) Grand jury. Proceedings before grand juries.

(3) Miscellaneous proceedings. Proceedings for extradition or rendition; inquest proceedings;

except as otherwise provided by statute or rule promulgated by the Supreme Court, sentencing or

granting or revoking probation; finding probable cause for arrests without warrant and issuance

of citations, warrants for arrest, criminal summonses, and search warrants.

(4) Contempt. Those contempt proceedings in which the court may act summarily.

(5) Small claims. Small claims proceedings.

(6) Statutory exceptions. Proceedings in which all or part of the rules of evidence are made

inapplicable by statute.

Smaul & Smaul, PLLC100 Business Way Suite 301

Anywere, VT 05000

S. Smaul, Member S. Smaul, III, MemberA. Smaul, Associate B. Smaul, Paralegal

May 1, 2016

LoweTech Computer Services, LLC1 Any WayAnywhere, VT 05000

Re: Installation and Configuration of Computer System

Dear Mr. Lowe:

This will confirm the details of our recent meeting regarding the computer system you will install in our office. This letter, when countersigned by you below will constitute the agreement between us on this subject.

1. Description of Work. LoweTech will remove 10 workstations and one server from Smaul’s offices and dispose of the computers in a manner that maintains the security and confidentiality of the data on the hard drives and meets the minimum requirements for the recycling guidelines applicable to eWaste under Vermont law. Simultaneously LoweTech will configure and install 10 new workstations as described in Addendum 1 to this letter. LoweTech is responsible for procuring all designated hardware and software and for incorporating any additional or supplemental equipment necessary to network the 10 workstations and server into a single network. (the “Work”) Smaul designated the hardware and software to meet their requirements.

2. Timeframe for Completion. Lowetech will commence work no earlier than 5:15 pm on July 1, 2016 and will complete the removal of the old equipment and installation of the new equipment no later than 9:15 pm on Monday, July 3, 2016.

3. Payment Terms. Smaul will pay LoweTech the sum of Seventy-nine Thousand Eight Hundred Dollars (US$79,800) for the Work. Smaul will pay Ten Thousand Five Hundred Dollars (US10,500) on May 10, and Fifteen Thousand Dollars ($15,000) on June 5 against the total amount due. The balance of the contract price for the work is due and payable on July 15, 2016. LoweTech will pay the advances totally Twenty-Five Thousand Five Hundred Dollars ($25,500) to suppliers for the hardware and software to be installed. Smaul will pay the costs of any additional hardware and software that is required to complete the work at the time the change is requested. LoweTech is not required to commence alterations to the work unless paid for the costs of the additional hardware and software. Time to configure added hardware and software will be paid by Smaul at the rate of $125.00.

4. Support. LoweTech will provide support services to Smaul for the computer system for 90 daysafter installation. Support services are not included in the cost of the Work specified in Paragraph 3. Support calls that do not require a technician on site will be compensated at the rate of $90 per call. Support services that require a technician on site will be compensated at $200 per call. Each call made to LoweTech will be a separate service call.

5. Warranty. LoweTech does not warrant the hardware. All hardware warranties are provide only by the manufacturer of the equipment and any service contract or arrangement available from the manufacturer or distibutor of the hardware. LoweTech warrants that its installation will function as specified in the attachment to this letter and will be fully functional at the end of the installation.

6. Transfer of Data. As part of the Work, LoweTech will transfer all of the data on Smaul’s existing server to the new server using the same folders and will configure all of the software installed as part of the Work to access the date on the new server, just as Smaul presently does.

7. Disclosure and Confirmation. The timeframe for this installation is critical to Smaul as Smaul is about to start preparation for a significant civil trial and the new computer system is a key element in being able to adequately prepare for the civil trial. Smaul will be severly injured in the event the computer system does not function properly at the completion of the installation. Based on the assertedtime critical nature of the project, no changes to hardware or software can be made once the project starts, without adjusting the time frame.

8. Confidentiality. Smaul has notified LoweTech that Smaul’s computer system contains significant amounts of client data and information which is all confidential and cannot be disclosed. LoweTech will instruct all technicians working on the system no to access any data beyond what is absolutely necessary to install and configure the system and complete the Work.

9. Entire Agreement. This letter and the attached schedules represents the entire agreement between the parties describing each of the party’s obligations regarding the Work. No amendments to this Agreement will be effective unless both parties confirm their agreement to the amendment in a writing.

10. No Assignment. Neither party can assign their rights or obligations to any third party.

11. Severability. The terms of this agreement are severable if a term is determined to be unenforceable, however, the severability of the terms will not be interpreted to deny either party the essential benefits that the party is entitled to receive under this agreement.

Please confirm that you agree to these terms by countersigning a copy of this agreement below.

Smaul & Smaul, PLLC

By:S. Smaul, Manager

Accepted and Agreed

LoweTech Computer Services, LLC

By:

L. Lowe, proprietor

Schedule A (Addendum) to Letter Agreement Smaul and LoweTech

1. Server – Dell PowerEdge, 2 Xeon Processors, 16 Gb RAM, Raid 1 Array (4x 500GB Drives); Windows Server or Linux Server OS,

1. a. Backup system – removable tape drive or removable hard drive backup system installed on server with client to run on senior admin’s desktop workstation.

1. b. Server side software for Houdini and Digital Warroom.

2. Workstations – Core I5 or better CPU, 8GB RAM, 500 GB HD or 128 GB SSD, Windows 10 OS, MS Office 2016 Pro Version, Acrobat Pro (or equivalent), Houdini Firm Practice Manager Client

3. Network Hardware – Cisco or equivalent routes, security appliances and wireless access points. Wireless access to be sufficient in all conference rooms, offices, lounge and kitchen. Network connectsusing Comcast Business Cable services with Fairpoint DSL failover configuration.

4. Printers – XEROX or CANON small workgroup printer/scanner/fax combo machines (x2).


Anywere, VT 05000


May 1, 2016



Dear Mr. Lowe:


1. Description of Work. LoweTech will remove 10 workstations and one server from Smaul’s offices and dispose of the computers in a manner that maintains the security and confidentiality of the data on the hard drives . Simultaneously LoweTech will configure and install 10 new workstations as described in Addendum 1 to this letter. LoweTech is responsible for procuring all designated hardware and software and for incorporating any additional or supplemental equipment necessary to network the 10 workstations and server into a single network. (the “Work”) Smaul designated the hardware and software to meet their requirements with assistance from LoweTech consultants.


3. Payment Terms. Smaul will pay LoweTech the sum of Seventy-nine Thousand Eight Hundred Dollars (US$79,800) for the Work. Smaul will pay Ten Thousand Five Hundred Dollars (US10,500) on May 10, and Fifteen Thousand Dollars ($15,000) on June 5 against the total amount due. The balance of the contract price for the work is due and payable on July 15, 2016. LoweTech will pay the advances totally Twenty-Five Thousand Five Hundred Dollars ($25,500) to suppliers for the hardware and software to be installed. Smaul will pay the costs of any additional hardware and software that is required to complete the work at the time the change is requested. LoweTech is not required to commence alterations to the work unless paid for the costs of the additional hardware and software. Time to configure added hardware and software will be paid by Smaul at the rate of $125.00.

4. Support. LoweTech will provide support services to Smaul for the computer system for 90 daysafter installation. Support services are not included in the cost of the Work specified in Paragraph 3.

Support calls that do not require a technician on site will be compensated at the rate of $90 per call. Support services that require a technician on site will be compensated at $200 per call. Each call made to LoweTech will be a separate service call.



7. Disclosure and Confirmation. The timeframe for this installation is critical to Smaul as Smaul is about to start preparation for a significant civil trial and the new computer system is a key element in being able to adequately prepare for the civil trial. Smaul will be severly injured in the event the computer system does not function properly at the completion of the installation. Based on the assertedtime critical nature of the project, no changes to hardware or software can be made once the project starts, without adjusting the time frame.






Smaul & Smaul, PLLC


Accepted and AgreedLoweTech Computer Services, LLC

By:

L. Lowe, proprietor


1. Server – Dell PowerEdge, 2 Xeon Processors, 16 Gb RAM, RAID 1 Array (4x 500GB Drives); Windows Server or Linux Server OS,


1. b. Server side software for Houdini and Digital Warroom.





Anywere, VT 05000


May 1, 2016



Dear Mr. Lowe:


1. Description of Work. LoweTech will remove 10 workstations and one server from Smaul’s offices and dispose of the computers in a manner that maintains the security and confidentiality of the data on the hard drives and meets the minimum requirements for the recycling guidelines applicable to eWaste under Vermont law. Simultaneously LoweTech will configure and install 10 new workstations as described in Addendum 1 to this letter. LoweTech is responsible for procuring all designated hardware and software and for incorporating any additional or supplemental equipment necessary to network the 10 workstations and server into a single network. (the “Work”)


3. Payment Terms. Smaul will pay LoweTech the sum of Seventy-nine Thousand Eight Hundred Dollars (US$79,800) for the Work. Smaul will pay Ten Thousand Five Hundred Dollars (US10,500) on May 10, and Fifteen Thousand Dollars ($15,000) on June 5 against the total amount due. The balance of the contract price for the work is due and payable on July 15, 2016. LoweTech will pay the advances totally Twenty-Five Thousand Five Hundred Dollars ($25,500) to suppliers for the hardware and software to be installed.

4. Support. LoweTech will provide support services to Smaul for the computer system for 90 daysafter installation. Support services are not included in the cost of the Work specified in Paragraph 3. Support calls that do not require a technician on site will be compensated at the rate of $90 per call. Support services that require a technician on site will be compensated at $200 per call.



7. Disclosure and Confirmation. The timeframe for this installation is critical to Smaul as Smaul is about to start preparation for a significant civil trial and the new computer system is a key element in being able to adequately prepare for the civil trial. Smaul will be severly injured in the event the computer system does not function properly at the completion of the installation.






Smaul & Smaul, PLLC


Accepted and Agreed

LoweTech Computer Services, LLC

By:

L. Lowe, proprietor


1. Server – Dell PowerEdge, 2 Xeon Processors, 16 Gb RAM, Raid 1 Array (4x500), Windows Server or Linux Server OS, server side software for Houdini.





To: [email protected]

From: [email protected]

Date: April 25, 2016 @ 4:10 pm

Re: Computer services contract

Attachment: CSP to LOWETECH CONTRACT TERMS.PDF

________________________________________________________

L.

here is a draft agreement/letter for you to review. We need to get this signed pretty quick so you can get started. We can’t be late, court is pushing to get the discovery phase completed.

S.

mailto:[email protected]



From: L [email protected]

Date: April 28, 2016 @ 1:43 pm

Re: Re: Computer services contract

Attachment: revised smaul contract ltr.pdf______________________________________________________________

S

Looked at contract, there are a few problems. I added some stuff and took out a few of the problem areas. See attached.

L






Date: May 3, 2016 @ 9.22 AM


Attachment: 2nd revised smaul contract ltr.pdf

________________________________________________________

L.

There are a for more revisions to the letter. Please advise immediately if the changes are not acceptable. We have to get this project off the ground. You said it might take six weeks to get the server and workstations ordered and delivered. We need to start right away.

S.





Date: May 8, 2016 @ 11:51 am


______________________________________________________________

We can start as soon as you forward the first payments. I told you I can’t place this big an order without funds available. Using my credit is expensive. We talked a length about this.






Date: May 10, 2016 @ 4:10 pm


________________________________________________________

Reviewed your most recent changes. Everything is OK. Please confirm that you looked at the specifications for the workstations and that they will be adequate. We found those units on sale from XXXX company and we want to use those.



To: [email protected] ; [email protected]


Date: May 9, 2016 @ 8:10 am

Re: Smaul Computer Install

_____________________________________________________

T. and C.

Did you review the specifications on the Smaul contract? S wants to be sure everything will work for them.

L





To: [email protected]; [email protected]


Date: May 9, 2016 @ 12:20 pm


_____________________________________________________ L and T

I reviewed the specs, the work stations are fine, in fact, they are probably more machine than those lawyers need, but if they like them, I am good.

C




To: [email protected]; [email protected]


Date: May 9, 2016 @ 12:20 pm


_____________________________________________________

L & C

Did anybody look at the storage requirements. I see the specs have a RAID 1 with 4x 500 GB disks. Everyone knows what that means right?






Date: June 10, 2016 @ 8:15 am

Re: New Computer System

_______________________________________________________________

S.

Is everything going OK with the new computer system? The ESI/Ediscovery materials are starting to arrive. We have 2 500GB drives full of stuff and we are going to need to pare that down and produce the responses to those )*&*& discovery requests in 45 days or there going to be trouble. I tried loading this on our server but there just isn’t enough room.

B.





Date: June 10, 2016 @ 10:35 am

Re: New Computer System

_______________________________________________________________

B.

It will be fine. The new server is going to have 4 500GB drives and we are only using 200 GB of the current server. I checked to be sure that they reviewed the specs and they said everything was fine. I even emailed them somewere.

S.

Is everything going OK with the new computer system? The ESI/Ediscovery materials are starting to arrive. We have 2 500GB drives full of stuff and we are going to need to pare that down and produce the responses to those )*&*& discovery requests in 45 days or there going to be trouble. I tried loading this on our server but there just isn’t enough room.

B.





Date: May 9, 2016 @ 2:01 pm


______________________________________________________________

S.

we are all set. Orders are placed for the servers according you your specifications and workstations have been ordered also. Delivery is expected by 6/25. That will give T about a week to configure the server and the workstations.

The Canon people are sending the printers separately and their techs will be on-hand on Tuesday, when the office opens to install the software to get the printers working.

L.






Date: June 10, 2016 @ 8:15 am


_______________________________________________________________

Just got and update from Dell and from XXXX.

Good news from Dell, the server is all set with the hardware and they are shipping it tomorrow. The price quoted is a little different. The server hardware was originally quoted at $6,995, but they stoppedmaking some of the components that were on the list. The new stuff, is about the same or a little better and the hardware price is now $7,445. Software didn’t change. That difference isn’t enough to changethe contract price.

XXXX is not such good news. They no longer produce the Core I5 systems and only offer the Core I7 units with the other equipment you spec’ed. The additional prices on the workstations are going to add $400 per workstation, so the contract price is going to increase by $4,000. Please forward those funds immediately, as I have already sent the money to XXXX so they will deliver the workstations on time.






Date: June 10, 2016 @ 4:10 pm


________________________________________________________

L.

Not to happy about that change but I get it, that wasn’t your doing.

That extra $4,000 is going to bust the budget for this project, but we don’t want to start over. We appreciate the consideration on the server side.

Please tell me there won’t be any more surprises. There’s not a lot of contingency money left now.





Date: June 10, 2016 @ 9:45 am


_______________________________________________________________

I can’t make promises about things out of our control, but we have all the hardware ordered and the software is pretty standard.






Date: June 24, 2016 @ 8:15 am


_______________________________________________________________

The hardware is all at the shop. T is going to start configuration of the server and the workstations. She has plenty of time to finish.

Looks like Houdini and Digital WarRoom want their own servers. T says we can fix that by running two virtual servers on the same hardware and that won’t change the time to finish the configuration or the price. T says it chews up some of the resources, but compared to what you have now, that won’t make an significant difference.






Date: June 29, 2016 @ 8:15 am


_______________________________________________________________

Everything is here. We have even had time for dry run. The servers and workstations were all connected up in the shop and everything worked fine. We couldn’t test the printers as those are coming to your office directly.

Don’t forget, they are going to want their money on Tuesday when they show up to install the printers. It will be a total of $6,421 for the printers and installation.






Date: June 29, 2016 @ 11:25 am


________________________________________________________

Thanks for the update. We are ready to shut the existing system down like you instructed at noon. We will do a full backup of the servers and workstations before you arrive. Everyone is copying their personal files onto separate disks, so you can take the old machines away whenever it is convenient.





Date: June 29, 2016 @ 8:15 am


_______________________________________________________________

Everything is here. We have even had time for dry run. The servers and workstations were all connected up in the shop and everything worked fine. We couldn’t test the printers as those are coming to your office directly.

Don’t forget, they are going to want their money on Tuesday when they show up to install the printers. It will be a total of $6,421 for the printers and installation.






Date: June 30, 2016 @ 5:25 pm


________________________________________________________

Last check-in, is everything a “go” for tomorrow?

We are closing the office at noon, and S III, A and B and I are all going away for the long weekend. There are staff available to let you in and answer any questions. As soon a we are back on Tuesday weare going to have to load a lot of data on the new server and start processing it right away. We are under a pretty tight deadline to get some work our right away, and we can’t process it on our old server.

You can reach me over the weekend on my cell at 555-555-5555.





Date: July 1, 2016 @ 12:30 pm


________________________________________________________

Everything is set. We have the truck loaded and T is ready to go.

Not to put a hex on this project, but it looks good. Getting the hardware early so we could a test run at the shop makes me feel a whole lot better.





Date: July 6, 2016 @ 10:45 am

Re: BIG PROBLEM HELP

________________________________________________________

Call me immediately. We loaded the data that we have to process onto the server, or tried to. The server says the hard drives are full. We only loaded our existing data and tried to load 500 GB of new materials. We need help now. Send someone over here right away.





Date: July 6, 2016 11:10 am


________________________________________________________

WHERE ARE YOU??????? WE NEED HELP RIGHT NOW!!!!!!! THE SERVER IS NOT WORKING ---- WE CAN’T SAVE ANYTHING. WHAT’S WRONG – FIX IT NOW, WE CAN’T WORK.

HWAT IS WRONG WITH YOUR EQUIPMENT





Date: July 6, 2016 11:10 am


________________________________________________________

This will confirm our telephone call at 11:35. T is on his way there now. He will review the situation and try to diagnose the problem. He reports he is about 35 minutes away.

L___________________________ ___________________________



Date: July 6, 2016 11:10 am


________________________________________________________









Date: July 6, 2016 11:10 am


________________________________________________________

This will confirm the discussion that you had with T as she reported it to me. The hard drives are in fact full. It appears that you tried to load over 500 GB of data onto the server, which had only 300 GB of capacity. By overloading the harddrives you created a problem for the operating systems by corrupting some of the space that was supposed to be set aside for maintenance tasks.

Your server was configured with a 500 GB RAID Array, as you specified, using 4x 500 GB drives. The total capacity of the server was 500 GB. The RAID array uses the four drives to provide a fail safeenvironment where the failure of one drive does not result in the loss of data. You existing system had only about 200 GB of data. Had you told us that you were going to load an additional terabyte of data on the server, we would have advised that your RAID Array should have been built from 4 or more 2 Terabyte Drives. Those drives are significantly more expensive than the 500 GB drives you specified.

Fixing this situation will involve ordering the drives, rebuilding the server with the new drives, and reconfiguring the server OS’s and virtual machines. That is going to take at least 2 weeks or possibly 3. The temporary fix is to remove about 200 GB of data from the servers until the new drives arrive and the server can be rebuilt.





Date: July 6, 2016 11:10 am


________________________________________________________

This will confirm our telephone call at 11:35. T is on his way there now. He will review the situation and try to diagnose the problem. He reports he is about 35 minutes away.

L___________________________ ___________________________



Date: July 6, 2016 11:10 am


________________________________________________________









Date: July 6, 2016 12:30 pm


________________________________________________________

Your proposed solution is not acceptable. We cannot wait 3 weeks to begin processing that data. The results of our processing must be filed with the Court in 41 days, and we will be subject to penalties and adverse consequences if we fail to meet that deadline.

Our agreement says your equipment will function according to its specification. You specifically confirmed that all the specifications were adequate for our needs and you were wrong. You need to fixthis no later than tomorrow afternoon. We are withholding the remainder of the payments and if you do not provide a suitable resolution according to this schedule we will withhold all further payments.

You don’t understand how significant this issue is to us. We must meet that deadline or we may lose a case that is worth millions to our clients and to us.

_____________________________ _________________ ___________________________



Date: July 6, 2016 11:10 am


________________________________________________________

This will confirm the discussion that you had with T as she reported it to me. The hard drives are in fact full. It appears that you tried to load over 500 GB of data onto the server, which had only 300 GB of capacity. By overloading the harddrives you created a problem for the operating systems by corrupting some of the space that was supposed to be set aside for maintenance tasks.

Your server was configured with a 500 GB RAID Array, as you specified, using 4x 500 GB drives. The total capacity of the server was 500 GB. The RAID array uses the four drives to provide a fail safeenvironment where the failure of one drive does not result in the loss of data. You existing system had only about 200 GB of data. Had you told us that you were going to load an additional terabyte of data





on the server, we would have advised that your RAID Array should have been built from 4 or more 2 Terabyte Drives. Those drives are significantly more expensive than the 500 GB drives you specified.

Fixing this situation will involve ordering the drives, rebuilding the server with the new drives, and reconfiguring the server OS’s and virtual machines. That is going to take at least 2 weeks or possibly 3. The temporary fix is to remove about 200 GB of data from the servers until the new drives arrive and the server can be rebuilt.



Date: July 6, 2016 4:30 pm


________________________________________________________

There is no solution that can be implemented in 24 hours.

We installed the system exactly according to your specifications.

We expect payment in full according to the terms of the agreement including the service calls related toassessing the “problem” with the server.

We will be pleased to continue to work with you to find a suitable resolution to your current problem on a reasonable schedule and at a reasonable cost.



L. LoweTech (555-555-5555)MobileMESSAGES PHOTO/VIDEOS CONTACTS

L. go to Smaul ASAP.Some issue with server.

They are frantic

Ok. Leaving as soon as I can

I am here. They are trying toload a terabyte of data. Serverhad a max capacity of 500GB

I checked the database. Theyordered a RAID 1 with 4x500Gbdrives. Should have been a RAID

5

So, we installed the right stuff –why didn’t they order the right

size drives

Don’t know. We installed whatthey ordered. They are hoppingmad over here. They need waymore capacity for some critical

project.OK, how do we fix it

We need to put bigger drives inthe server or rebuild as a RAID 5Nothing is stock. Have to order

don’t know availability

L. LoweTech (555-555-5555)MobileMESSAGES PHOTO/VIDEOS CONTACTS

Ouch, how long is that going totake and how much is it going to

cost

Drives will be few hundred apiece. Need at least 4. Time

crunch is configuration. Ill haveto shut down theier server for a

fay or more

Isn’t there any other way

Maybe might be able to takeeverything off the server andrebuild as a RAID 5. That will

give them what they want withredundancy

How much time is that going totake

At least a whole day

We have to find a way to collectmore than a service call. Can

you break it up into pieces, makemultiple calls

10/9/2016

1

E‐Discovery in the Small Civil Case

Hon. William CohenDavid Fenster, Esq.James Knapp, Esq.

Gregory Weimer, Esq.

• Ethical obligations to client and Court

• Successful representation of clients

• Better resolution of disputes

• Improves office practice, less time spent on any one case

Why Do I Care About This

• Rule 1.1 – Competence

– Competence requires

• Knowledge, skill, thoroughness and preparation

– Not every case requires e‐discovery

• BUT Must know when to engage in e‐discovery

• Part of Competence

– know enough to comply with rules/orders

Basic Principles E‐Discovery

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• Assist Client with:

– Preservation of Evidence

• Consequence $$$$$, adverse inferences for lost or spoiled evidence

– Collection and presentation of responses to discovery requests

– Review of Materials Received

• Consequence – Miss the “smoking gun”

• Includes understanding metadata

Competence ‐More

• Rule 1.1(d) and (e)

– Lawyer shall not counsel or assist in criminal or fraudulent conduct

• Spoliation of Evidence

• Violation of Court Orders/Discovery Stipulations

• Rule 3.2 – Shall not obstruct access to evidence, conceal a document or other material having evidentiary value

More Basic Principles

Vermont Supreme Court

• Synecology Partners, L3C v Business RunTime, Inc, et al, 2016 VT 29 (2015)

– Complaint Dismissed for failure to comply with discovery orders! Ouch!

– The Request ‐ All emails … relating to allegations in Complaint‐ reserves option to request native format

– No response, motion to compel, granted, response follows 3 months LATE!

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Synecology (cont)• Response = CD with PDFs of emails • And – list format – no indication where each email ended and new one started

• Limited number of emails, claims of privilege– 1 from 2010 – remember that – One custodian has two accounts both identified

• Follow‐up request –– proposed protective order, and – requested – complete email boxes of named key custodians;

– native format

Synecology (cont)

• Response to follow‐up request

– Response promised “next week”

– Produced 4 months later

– CD with emails

• Not in native format

• No emails from one account identified as relevant

• Privilege claimed but no privilege log provided

• Numerous supplemental and follow‐up requests

And more Synecology• Now 2 years after initial request

– Next supplemental response includes• 1881 emails from 2010 • No emails from one identified account

• No privilege log

– Further response• Still no privilege log

• Admits that earlier statement that personal account did not have relevant emails not factually correct

• Synecology’s attorney granted permission to withdraw

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What is Electronically Stored Information

• emails

• documents

• spreadsheets

• databases

• pictures

• recordings• videos

• texts

• social media postings

Discoverable Information preserved in electronic form

• Contract Dispute – Total $$$ involved – less than $100,000

– 30 to 45 documents (outlines, preliminary work, correspondence, spreadsheets, drafts, revised drafts, final documents, revised final documents, exhibits)

– ~150 emails (direct communications, some duplicate copies)

– Two attorneys, CEO, CFO, and two other executive staff on one side, CEO and at least two other persons on other side.

A Simple Example

• Most of the material, excluding some attorney work product and a few privileged communications

• Sources: 7‐8 computers, 5‐7 email accounts, databases regarding invoices and customer management data, four different servers, backup systems for four different servers, smartphones, at least one tablet device

• Probably more!

Discoverable Information

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• Wrongful Termination Suit

• On the company side – employee direct supervisor, senior management person, HR Dept., counsel

• Emails, evaluations, employee data in HR dept. database,

• 4‐5 computers, server, backup tapes

One More Example

• On a USB key/thumbdrive

• On a backup system

• On a CD or DVD

• On an iPod

• Social Media Sites –Facebook, Twitter, Google, etc.

• On a desktop or laptop computer

– At the office or at home

– Removed harddrive

• In the Cloud

– Local Access

– Provider Access

• On a server

• On a smart‐phone

• In voicemail systems

Where is ESI found

• Forensics

– A combination of magic and science used to look for deleted, destroyed, hidden, obscured, encrypted ESI wherever it may be found

– Requires training and experience

– Requires special tools, hardware and software

• eDiscovery

– Locating, segregating, storing, evaluating, producing and discovering ESI in all the right places

– Can be done by technically proficient persons without significant training

– Begins with basic tools; though advanced tools help

eDiscovery vs. Forensics