Giuliana Foti

“E-DISCOVERY TEAM TRAININIG”

SECTION ONE

 Module D
Transparency in a cooperative model of discovery requires the producing attorney to disclose
the steps they used, or plan to use, to find and produce the information requested. This new
attitude towards discovery is particularly helpful to all parties involved in litigation where
technical issues of e-discovery are concerned.

Cooperation as taught in this course means to avoid unnecessary fights based on a position of
strength, namely knowledge of the e-discovery process. It is based on a clear understanding of
what is fair and reasonable under the particular circumstances of the cases, and what is not.

My view of cooperation requires a judiciary willing to step in when necessary and make some
tough calls.

Finally, cooperation does not mean to forgive and forget the spoliation of evidence or other bad
faith conduct of opposing parties in litigation.

Under the cooperative approach to discovery the parties work together to find the evidence, then
argue over its importance or admissibility. The traditional models of adversarial conduct and
work product secrecy remain intact for all non-discovery related issues.

Even as to discovery, cooperation does not mean capitulation, but rather discussion and
focusing of issues, along with good faith efforts to reach agreement. Failing that, when the
parties agree to disagree, the cooperative approach advocates early resolution from the court on
any such issues.

The Case For Cooperation is a well researched article with 159 footnotes. It provides an
important reference of the laws and policies behind the Cooperation Proclamation.

 Module E
We have moved from a society that stores and retrieves information locally in paper files, filing
cabinets, books and libraries, to one that stores information globally in electronic devices and
the Internet.

The information explosion is profoundly impacting the law because information is the
foundation of our justice system. We determine what is just and right based on the evidence.
For lawyers to adapt to this new world we need to rethink what we mean by documents, to
understand and revisualize them as electronically store information.

They do not suggest that the adversarial system of dispute resolution be abandoned entirely, just
that the discovery model be changed.

The authors predict the legal profession will necessarily have to change and adapt new
strategies of practice to cope with this information inflation

What they call the current “game theory” behind litigation must end, and be replaced by
strategic cooperation and transparency in ESI discovery and production. Lawyers will be
forced to collaborate because that will be the only way to discover enough ESI related to a
dispute to adequately evaluate the client’s position. As I understand it, that means the
parties will agree to a preliminary search method, which today is likely to be an agreed set
of search terms. The parties will then try out the agreed search on a limited data set,
evaluate and share the results, and then meet again to try to refine the terms for the next
search. The next iteration of the search will incorporate the lessons learned from the last
search, and so on, until the parties (or barring agreement, the court) are satisfied they
have enough information to resolve the dispute (or the funds budgeted for the discovery
process have been exhausted).

 Module F

(some judge opinion)

 Module G

very attorney has a license to cull irrelevant data before beginning expensive linear
review. It is part of their duty to protect their clients and country from waste and abuse.
This article describes the two-filter culling method I’ve devised over the years to identify and
bulk-code irrelevant documents. The method is designed for use before commencing a detailed
attorney review. The efficacy of any large-scale document review project can be enhanced by
this double-cull method.

The two-filter culling method includes the well-known technology processes of deduplication
and deNisting in the first filter. (Note: I always do full horizontal deduplication across all
custodians.) Deduplication and deNisting are, however, just technical engineering filters, not
based on legal analysis or judgment. The other methods described here all require legal
judgment.

you find the truth, the whole truth, and nothing but the truth, when you find the key
documents needed to complete the picture of what happened and keep witnesses honest. In
today’s information flooded world, that can only happen if we use technology in a strategic
manner to find relevant evidence quickly and inexpensively.

First filter: key word collection, date range, custodian selection, and other filters.

Think of the First Filter as a rough, coarse filter, and the Second Filter as fine-grained. The
Second Filter requires a much deeper dive into file contents to cull out irrelevance. The most
effective way to do that is to use predictive coding, by which I mean active machine learning,
supplemented somewhat by using a variety of methods to find good training documents.

As mentioned, active machine learning trains on both relevance and irrelevance. Although, in
my opinion, the documents found that are Highly Relevant, the hot documents, are the most
important of all for training purposes. The idea is to use predictive coding to segregate your data
into two separate camps, relevant and irrelevant. You not only separate them, but you also rank
them according to probable relevance.

 Module H

what is metadata? Literally it means “data about data”. . . information about a particular
data set or document which describes how, when and by whom it was collected, created,
accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Can
be extracted when native files are converted to image. Some metadata, such as file dates and
sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to
computer users who are not technically adept. Metadata is generally not reproduced in full form
when a document is printed.
Some programs include information within the contents of files that is hidden until you instruct
the software to reveal the information. This is called “embedded” information, technically, it is
not true “metadata” because it is not “data about data.” It is not information about the file itself.
Instead, it is information within a file, but hidden for some reason.

(different cases)

It is, however, clear from Kentucky Speedway that whenever a metadata production will create
a substantial burden on the producing party then the requesting party will have to provide good
cause. The plaintiff’s reliance on Williams I to support the production of metadata in all
circumstances, and without a good cause showing, was misplaced and distorts its actual
holding of Williams I (as shown for instance by Williams II). Instead Williams stands for the
proposition that the producing party must object and show undue burden, and then the burden
shifts to the requesting party to prove good cause. The argument on metadata production is
essentially the same as the inaccessibility argument under Rule 26(b)(2)(B). If you can show a
real need to see the metadata, as the plaintiffs did in Williams I (but not Williams II), it may be
possible to compel the production in spite of burden on the producing party. It will be a
balancing test dependent upon the circumstances, and following something like the seven
factors recommended by the Rules Committee for 26(b)(2)(B) analysis, and earlier in Zubulake
I for cost shifting, but with the added dimension of the debatable feasibility at this time of
redacting privileged materials from native files.

 Module I

We are still in the dark as to what we can and cannot do in this area. So too are the judges who
must decide electronic privacy disputes.

Frankly, it seems like any technology originating after 1950 is beyond the comprehension of
certain justices of the Supreme Court, including especially its fearless leader, Chief Justice
John G. Roberts. Our top judge is said to write his opinions in long hand on pen and paper.

 Module J

What do we mean by that? “Protodigital?” This senior generation of litigators (and I’m at the
tail end of it myself) is fully cognizant that we live in a digital world and are themselves likely
to use computers to some extent – for word processing, for email, to read a court decision
online, perhaps even to generate a spreadsheet.

But they are still thinking of the digital information system as a set of tools for producing
information (the document, the email communication, the legal opinion or spreadsheet) that
they will manage as though that information were paper-based. They think that it is somehow
appropriate to manage digital information, and discovery, by analogy to the paper world.

The inability of American lawyers to do e-discovery at a reasonable cost is becoming a world-

wide embarrassment. Even the intellectual press in the U.K. is starting to pick up on it. For
instance, an article in the Economist entitled The Big Data Dump, opined that because of
expensive e-discovery, the U.S. “civil-justice system as a whole threatens to get bogged down.”
The article then quotes Supreme Court Justice Stephen Breyer, expressing concern that, with
ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the
litigation system a lot of people who ought to be there” so that “justice is determined by wealth,
not by the merits of the case.”

Electronic discovery can be brought under control by competent, informed management of the
process. This requires experts who are fully competent in all aspects of e-discovery.

Reasonable, affordable e-discovery requires three steps:

1. Establish and operate an interdisciplinary tech/law e-discovery team, a step which

many in-house counsel have already begun.
2. Strategic cooperation with opposing counsel in technical areas of discovery to
avoid unnecessary disputes, instead focusing adversarial arguments on case merits
and 26(b)(2)(C) evaluation.
3. Case metrics.

As a client, you have a right to know in advance what an e-discovery production will cost
and how long it will take, or at least a range. You also have a right under all state and
federal rules to limit the discovery costs proportionally to the value of the case.

Most attorneys today agree to search terms for the production of their client’s information
without first knowing what the likely cost will be to review and produce this information.
Further, keywords are agreed to and used without first testing them on smaller data
samples to evaluate their efficacy. What percentage of the documents they produce will
actually be relevant? Since even small clients now have incredibly large amounts of data in
their computer systems, the net result of this haphazard approach is that far too much data is
collected and far too much time and fees are wasted on review of irrelevant information. This
over review and production is the cause of run-away e-discovery costs, not the new rules or bad
judges. This can be stopped by metrics and more scientifically based cost estimation.

The new metric techniques allow for an informed evaluation of proposed key words
wherein you can limit the number of electronic files to be reviewed and produced.
Cooperation and a proper and timely use of metrics would have led to a far different result.
  Module K

The Sedona Conference in 2017 published the third edition of The Sedona Principles, Third
Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document
Production. Many district court judges across the country cite to The Sedona Principles and
consider it to be authoritative.

The Sedona Principles, Third Edition

(edits displayed version)
1. Electronically stored information is potentially discoverable under Fed. R, Civ. P. 34
or its state equivalents. Organizations must properly preserve electronically stored
information that can reasonably be anticipated to be relevant to litigation. generally
subject to the same preservation and discovery requirements as other relevant
information.
2. When balancing the cost, burden, and need for electronically stored information,
courts and parties should apply the proportionality standard embodied in Fed. R.
Civ. P. 26(b)(1) and its state equivalents, which requires consideration of
the technological feasibility and realistic costs of preserving, retrieving, reviewing, and
producing electronically stored information, as well as the nature of the
litigation importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
3. As soon as practicable, parties should confer early in discovery and seek to reach
agreement regarding the preservation and production of electronically stored
information. when these matters are at issue in the litigation and seek to agree on the
scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be
as clear  specific as possible; while responses and objections to discovery should
disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable
and good faith efforts to retain information that may  is expected to be relevant
to claims or defenses in reasonably anticipated or pending or threatened litigation.
However, it is unreasonable to expect parties to take every conceivable step or
disproportionate steps to preserve each instance of relevant electronically stored
information.
6. Responding parties are best situated to evaluate the procedures, methodologies,
and technologies appropriate for preserving and producing their own electronically
stored information.
7. The requesting party has the burden on a motion to compel to show that the
responding party’s steps to preserve and produce relevant electronically stored
information were inadequate.
8. The primary sources of electronically stored information for production should be
active data and information. Resort to disaster recovery backup tapes and other sources of
electronically stored information that are not reasonably accessible requires the requesting
party to demonstrate need and relevance that outweigh the costs and burdens of retrieving
and processing the electronically stored information from such sources, including the
disruption of business and information management activities. to be preserved and
produced should be those readily accessible in the ordinary course. Only when
electronically stored information is not available through such primary sources
should parties move down a continuum of less accessible sources until the
information requested to be preserved or produced is no longer proportional.
 9. Absent a showing of special need and relevance, a responding party should not be
required to preserve, review, or produce deleted, shadowed, fragmented, or residual
electronically stored information.
10. Parties A responding party should follow reasonable procedures to protect privileges
and objections in connection with the production of electronically stored information take
reasonable steps to safeguard electronically stored information, the disclosure or
dissemination of which is subject to privileges, work product protections, privacy
obligations, or other legally enforceable restrictions.
11. A responding party may satisfy its good faith obligations to preserve and produce
relevant electronically stored information by using electronic tools technology and
processes, such as sampling, searching, or the use of selection criteria. to identify data
reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, The
production of electronically stored information should be made in the form or forms
in which the information it is ordinarily maintained or in a that is reasonably
usable form, taking into account the need to produce reasonably accessible metadata that
will enable the receiving party to have the same ability to access, search, and display the
information as the producing party where appropriate or necessary in light of the nature of
the information and the needs of the case given the nature of the electronically stored
information and the proportional needs of the case.
13. Absent a specific objection, party agreement or court order, The reasonable costs
of retrieving and reviewing preserving and producing relevant and
proportionate electronically stored information ordinarily should be borne by the
responding party. unless the information sought is not reasonably available to the
responding party in the ordinary course of business. If the information sought is not
reasonably available to the responding party in the ordinary course of business, then,
absent special circumstances, the costs of retrieving and reviewing such electronic
information may be shared by or shifted to the requesting party.
14. The breach of a duty to preserve electronically stored information may be
addressed by remedial measures, sanctions, or both: remedial measures are
appropriate to cure prejudice; sanctions are appropriate only if a party acted with
intent to deprive another party of the use of relevant electronically stored
information. Sanctions, including spoliation findings, should be considered by the court
only if it finds that there was a clear duty to preserve, a culpable failure to preserve and
produce relevant electronically stored information, and a reasonable probability that the
loss of the evidence has materially prejudiced the adverse party.

We do not think that Principle Six should apply to choice of document review method,
especially when the cost of that review is an important factor in determining scope of relevance.
What really matters is not ownership of ESI and IT systems, but competence in ESI search and
review. It is a matter of knowing how to use the best tools to search for and find the electronic
evidence needed to try a case. What does that have to do with who owns the data or where it
once lived?

 Module L

“26”: Signing Disclosures and Discovery Requests, Responses, and Objections.

1. Signature Required; Effect of Signature.

Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or
objection must be signed by at least one attorney of record in the attorney’s own name – or by
the party personally, if unrepresented – and must state the signer’s address, e-mail address, and
telephone number. By signing, an attorney or party certifies that to the best of the person’s
knowledge, information, and belief formed after a reasonable inquiry:

A. with respect to a disclosure, it is complete and correct as of the time it is made; and
B. with respect to a discovery request, response, or objection, it is:

i . consistent with these rules and warranted by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing law, or for establishing new law;

ii. not interposed for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation; and

iii. neither unreasonable nor unduly burdensome or expensive, considering the needs of the
case, prior discovery in the case, the amount in controversy, and the importance of the
issues at stake in the action.

2. Failure to Sign.

Other parties have no duty to act on an unsigned disclosure, request, response, or objection until
it is signed, and the court must strike it unless a signature is promptly supplied after the
omission is called to the attorney’s or party’s attention.

3. Sanction for Improper Certification.

If a certification violates this rule without substantial justification, the court, on motion or on its
own, must impose an appropriate sanction on the signer, the party on whose behalf the signer
was acting, or both. The sanction may include an order to pay the reasonable expenses,
including attorney’s fees, caused by the violation.

As you can see, the rule not only requires the attorney of record to certify after a reasonable
inquiry that the disclosure is complete and correct, but also that the discovery is not made for an
improper purpose such as to needlessly increase the cost of litigation and is not unduly
burdensome or expensive considering the value of the case. The last requirement of
proportionality mirrors the requirements of Rule 26(b)(2)(C) and is a key provision to e-
discovery.

Cooperative discovery as Judge Grimm and The Sedona Conference propose will not work
unless the litigants, the lawyers, and the judges all play their part. If the judiciary does not
enforce Rule 26(g) with the routine imposition of sanctions for its violation as the rule
contemplated, including especially monetary sanctions, then cooperative discovery will be slow
to be adopted.

Judges need to get with the program too. They not only need to encourage cooperation, but
punish violation of the rules. For a start, they should routinely impose sanctions for violations of
Rule 26(g) as the rule intended.

 Module M

The use of metrics to document and guide efforts, and for quality control, allows an attorney to
later prove that reasonable efforts were made. This allows an attorney to show the court that the
mistake occurred in spite of these efforts.

The amount and quality of efforts required for reasonability under the law is a rapidly evolving
standard. Metrics and quality control are important elements in that evolving standard.

 Module N

California Formal Opinion on Ethics No. 2015-193 (final version August 2016).

The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know
about. Attorneys handling e-discovery should be able to perform (either by themselves or in
association with competent co-counsel or expert consultants) the following:

1. Initially assess e-discovery needs and issues, if any

2. Implement/cause to implement appropriate ESI preservation procedures;
3. Analyze and understand a client’s ESI systems and storage;
4. Advise the client on available options for collection and preservation of ESI;
5. Identify custodians of potentially relevant ESI;
6. Engage in competent and meaningful meet and confer with opposing counsel
concerning an e-discovery plan;
7. Perform data searches;
8. Collect responsive ESI in a manner that preserves the integrity of that ESI; and
9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

 Module O

Many of the problems of e-discovery derive from issues of language. As we have seen, the
peculiarities of language make simple keyword search ineffective. That is why more
sophisticated multi-modal approaches are needed. But there is more to language issues than that.
There is also the inability of the cultures of law and IT to communicate well that hinders the
development of effective teamwork. The different disciplines sometimes think they understand
each other when they do not. The first essay after the list of vocabulary words explores this
issue. The second goes to the more fundamental issue as to why the discovery of electronic
communications often turns up such critical information, namely the fact that people often say
very frank and honest things in emails. They seem to forget that these emails might someday be
discovered and used against them in a court of law or public opinion. This is unlikely to change
and people become more and more reliant on electronic communications.

 Module P

Information management is a key part of the e-discovery world. In fact, it is the first step in
the nine-fold Electronic Discovery Reference Model. We all know that ESI should be better
managed, but it seems nigh impossible to do right. How can you manage something that
multiplies faster that you can count? How do you find something that moves and morphs into
something new when you are not looking? One day its a word doc, the next a wiki, the next a
twitter.

 Module Q

The Justice Formula

Justice is derived by the application of Law to Fact. The true Facts (“F”) of a case are parsed or
divided by the Law (“L”).

The true Facts of a law suit are determined by three types of evidence: Testimony (“T”),
Physical Objects (“PO”), and Records (“R”). This means that F=T+PO+R. The expanded
Justice Formula thus becomes: J=(T+PO+R)/L.

Testimony is based on human memory and is notoriously unreliable. Even when witnesses are
all in good faith and trying to testify honestly, which some experienced trial attorneys says is the
exception, not the rule, their recollections of the same event can vary dramatically. This
variance, which is often conveniently slanted to fit a person’s interests, increases over time.
That is why the second and third variables in the Justice Formula, Physical Objects, “PO,” and
Records “R,” have always been more reliable than Testimony, “T.” For that reason, they – “PO”
and “R” – are the key to determining the Truth, and thus key to the rendition of Justice, and so
should be more heavily weighted than Testimony.

Physical Objects, “PO,” are typically called “tangible evidence” in the law, PO includes
such things as a gun or DNA in a criminal trial, or a tire or drug in a products liability
case. Tangible evidence is very important in criminal law, but in civil litigation is of little or no
consequence outside of products liability and negligence cases.
In my experience, in a scale of 1 to 10, in civli litigation “PO” is a 1, “T” is a 5, and “R” a
9. So if we take the formula J=(T+PO+R)/L and adjust the font size to reflect the relative weight
of the symbols, it would look something like this:

Records include what you typically think of as documentary evidence, namely writings of
all kinds and forms, including paper and electronic writings, but also information that
most lawyers would not think of as a document at all, including ever-changing-databases,
videos, metadata, etc. There are then fundamentally two kinds of Records: Paper (“P”)
and electronically stored information (“ESI”).

Since 98% of all records are ESI, and only 2% are pure paper, you could argue that ESI should
be given 49 times as much weight as Paper. Indeed, I see a future where this becomes true. But
for now, that would be a gross exaggeration (besides the font size differences would not show
well). Many of the paper printouts of ESI originals are handwritten upon, highlighted, or clipped
and marked in various ways, and so they become new evidence in their own right.

In today’s world of Records, I suggest that ESI is only four times as important, not forty-nine
times. Thus going back to our weighted font size rubic and one to ten scale, you have Paper as
a 2 and ESI as an 8. Now the whole Justice Formula would look something like this, with P in
12 point font and ESI in 48 point font:

America Needs Technologically Sophisticated Attorneys Who are Comfortable with ESI, Math,
and Spreadsheets

The Green opinion, and countless others like it, show that the paper based litigation practices of
most attorneys are out of sync with the actual electronic information systems of their clients.
This is true for all sizes of clients, from the neighborhood pet store that runs on a computer, to
the largest, most sophisticated global corporations.

We must become proficient in all forms of software and technology used by our clients. If we
do not, others most assuredly will. Law is not immune to the competitive pressures of the global
economy. American lawyers must keep up, or we are likely to get pushed out of the way by
others who do, perhaps even by lawyers in India who, let’s face it, can afford to work for a lot
less.

SECTION TWO

 Module a
Finding the ball, or Identification, is far easier said then done. For most companies, the problem
derives from storing terabytes of data. You probably have only a vague idea where this one
basketball might be located. It might be somewhere in a centralized bin, or in any one of dozens
of other locations. To make matters worse, you are never sure exactly what balls you are
looking for, especially when the game first begins. You may have to guess, from a vague
complaint, what balls are relevant.

The way most Teams do this is to analyze the dispute to try to determine what the issues
will be in the case. This gives you a general idea of the types of balls that may come into play.
Then you start to determine a general time line; hopefully the potentially relevant balls will
be constrained by time. You may be able to know, with some certainty, that balls made before
or after a certain time are not relevant and need not be searched. An e-Discovery Team will
also try to limit the search to balls made or stored by certain key players. These are the
people in your company that are likely to be involved as witnesses in the lawsuit. The Team’s
search should be focused on the storage bins of these key players. represents the first of
three steps considered critical to risk management. The other two components are
Preservation (saving the ball) and Collection (picking up the balls). If the Team does these
three steps correctly, it will protect the company or client from costly sanctions so
common in e-discovery work.

After playing find the ball, the next game is save the ball. Here the Team devises ways to
preserve most of the balls identified as potential evidence in the last game. Again, this can
be a very challenging game, especially when your company has many different auto-destruct
routines in place (and most companies do).

So make no mistake about it, save the ball is one of the most important games an e-Discovery
Team plays. That is why most e-Discovery Teams focus on this game as soon as the Team is
formed, and look for ways to improve their company’s litigation hold procedures.

you just collect the relevant ESI from the data you have identified and preserved. Seems
easy, but it is not. If you are not careful, you could collect too much or too little. Generally,
you do not want to simply pick up all of the balls you have saved. That will make the next
games too expensive. You also do not want to pick up too few balls, and leave behind many that
are directly relevant and should later be thrown to the other side. That kind of careless collection
can also be expensive. It can force you into an expensive do-over, and open you to charges of
hiding the ball and the imposition of sanctions.

The Team may already have hashed files as part of the preservation game; but if not, it is
essential that they now be hashed at the collection stage. Hashing provides a unique identifying
alphanumeric value for each computer file collected. This hash value can be later checked to
prove that the file has not been altered since it was collected. This is a key step in ESI
authentication to allow for admission into evidence at a hearing or trial. In most cases, hashing
should be a normal part of ball pickup.

Collection is the last of the three steps that are critical to Risk Management
(Identification-Preservation-Collection). It is also the first step of the final Expense
Management section of the e-Discovery Team playbook as shown below. These last five steps
are by far the most costly games the Team must play to respond to e-discovery requests. For
that reason, these are the tasks where excellent play by the Team can save the company money,
lots of money.

Shrink the ball, or Processing, is the game where the Team can save the company the most
money. Thus, from a financial perspective, it is the most important game of all. In this culling
step, you process the ESI to eliminate as much duplicate and irrelevant information as
possible. Here good software and automated process are critical; so too is careful strategic
thinking.

The goal is to significantly reduce the amount of ESI that must be reviewed and cleaned in the
next steps. it is critical to aggressively eliminate the redundant and immaterial ESI in this
processing stage.

Here is where some of the big money come in, the cost to review the data for privileged,
confidential, and irrelevant material. Still, most internal corporate e-Discovery Teams will
not clean their own ball, they will hand it off to their caddy to do it for them, typically their
outside legal counsel. That is why lawfirm e-Discovery Teams need to be especially adept and
efficient at this game.

This is a very important and risky step in the EDRM process and companies want to be sure it is
done right. You review the truckloads of email and documents that have not already been
culled out in the prior games so that you can remove the files that do not have to be
produced. The last thing you want to do is produce privileged materials to your adversary.
You need to clean your production of these secret files and produce a log of them instead.
Even with a clawback agreement, an accidental disclosure can still result in waiver of your
privilege to third parties. You also want to be sure the ESI review catches all confidential
materials, and that they are produced with appropriate markings and confidentiality agreements.
Trade secrets can be lost forever if they become a public record by filing with a court.

Now we come to the lawyerly game of aim the ball where the ESI is analyzed to see how it fits
into the case at hand. Here lawyers and paralegals tag each file to an issue, typically using
review software. They also make final decisions as to whether and how information is
responsive to discovery requests, or otherwise must be produced (or not). The files are
categorized and rated for importance.

The last game is the culmination of all the rest. The analysis game resulted in final decisions
on what files to be produced. Now you actually make the production. Throwing the ball is
not really all that hard, so long as you enlist the aid of WORMs.

Another tricky aspect of production is deciding the form of production. Do you produce in
native format with full internal metadata retained, or do you produce in a TIFF or JPEG format
with a load file ready for import into review software? This should have already been worked
out with opposing counsel as part of the Rule 26(f) conference, or the original production
request; but if not, you have to make these decisions now.

 Module B

Zubulake Duty

Counsel must become fully familiar with her client’s document retention policies, as well
as the client’s data retention architecture. This will invariably involve speaking with
information technology personnel, who can explain system-wide backup procedures in the
actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also
involve communicating with the “key players” in the litigation, in order to understand
how they stored information.

We refer to this obligation as the “Zubulake duty” because it first became widely known in
this decision. But the truth is, it could probably also be called the “New Jersey duty”

he New Jersey rule also requires counsel to locate an “IT witness”:

Counsel shall also identify a person or persons with knowledge about the client’s information
management systems, including computer-based and other digital systems, with the ability to
facilitate, through counsel, reasonably anticipated discovery.

1. Trial lawyers ignore the Zubulake duty, putting themselves or their clients at risk when e-
discovery problems develop, and it is revealed that they have not done their job.
2. They go through the motions of trying to fulfill that duty, and do a poor job, usually by
assigning the tasks to the youngest associates in the blind hope that kids who grew up with
computers might innately know how to do this (they don’t).

3. They delegate the duty to others who claim expertise in this area and hope for the best.
Typically this means they either bring in specialized co-counsel to handle the e-discovery
aspects of a case (although very few such attorneys exist today, and so this “gold-standard”
option is now limited), or they hire consultants or e-discovery vendors to help them with the
technical facts, and sometimes also the strategies

the situation of marginal competence and over-delegation leads to two things. First, an
unnecessarily adversarial approach to e-discovery; and second, excessive vendor input and
control over the amount of Electronically Stored Information (“ESI”) that needs to be reviewed
in any one case. These two factors, in turn, significantly increase the costs of e-discovery to the
point that the costs are turning parties away from the courts.

The situation described has to change. We can no longer afford to continue with the same
paradigm. We must begin to envision and implement a different model. The only viable
solution is the team approach where technology savvy lawyers, e-discovery technicians,
trial lawyers, clients, records managers, and vendors all work together to fulfill the
Zubulake duty.

The Team Solution to the Zubulake Duty

By now the old solo trial lawyer or one-dimensional small team model is obsolete in most cases
of any significant size. The only viable model to meet the Zubulake duty is through larger scale
teams that incorporate computer and other technical specialists as key members of the team.

 Module C

Victor Stanley, Inc. v. Creative Pipe, Inc. and Reasonable Search

Judge Grimm’s forty-three page opinion is, on one level, a detailed ruling on waiver of attorney-
client privilege. On another level, it is a treatise on e-discovery search and a guide to proving
reasonable efforts. As Jason R. Baron said: “what Judge Grimm has done is give a road-map to
lawyers in the United States on how to present to a court how they went about searching for
relevant documents.”

Such proof may be required when a search fails and you are faced with sanctions as a result, or,
as in this case, loss of privilege. In these circumstances, you may be required to prove that your
search was reasonable, albeit, imperfect. As everyone in the industry knows, e-discovery is like
golf, there is no such thing as perfect, and everybody, even a PGA tour professional, makes a
few mistakes.

Search is the key

Proper search is the cornerstone of e-discovery, and key to controlling costs. Since most of
the cost of e-discovery lies in review expenses, estimates range from 50% to 80%, our
efforts should be focused on searches that reduce the amount of ESI to be reviewed.
Obviously, the better the search, the more chaff is separated from the wheat. We do not want
our reviewers reading chaff – every minute a reviewer spends reading an irrelevant email is a
minute wasted.

Selection of the appropriate search and information retrieval technique requires careful
advance planning by persons qualified to design effective search methodology. The
implementation of the methodology selected should be tested for quality assurance; and the
party selecting the methodology must be prepared to explain the rationale for the method chosen
to the court, demonstrate that it is appropriate for the task, and show that it was properly
implemented.

Concept Search v. Keyword Search

Keyword searches have been around for decades and are familiar to any lawyer who has
ever done computer research. You can, for instance, run a computer search of hundreds of
thousands of emails to find all emails that include one or more of a list of names, as plaintiff
here proposed. This takes just seconds, but can produce a high percentage of irrelevant
emails; ones that include the names but have nothing to do with the case. It can also omit
many relevant emails that just do not happen to include the keywords you guessed a
relevant email would have (or perhaps included them, but misspelled them, a problem not
often found with computerized legal research).

A search that creates a lot of noise, that is, one that produces too many irrelevant emails, can
create very significant time and expense burdens on all the parties, but especially on the
producing party. If for instance the search creates a list of 100,000 emails, the producing party
will have to review all of these emails for possibly privileged communication before production.
This is a very expensive undertaking, and although clawback agreements provide some comfort,
they cannot obviate the need for, and expense of, the privilege review. It is also expensive for
the receiving party who also has to spend time and money to review the irrelevant emails.

Therefore, if there is a better search method than keyword that can produce a high
percentage of relevant hits, and thus less noise and less wasted time for privilege review, it
is to the advantage of all parties to use it. Moreover, it is a potentially very valuable product.
There are several software vendors who have created alternative search algorithms to
keyword searches. All are sometimes lumped together as “concept searches.” They use a
variety of methods, involving such things as contextual usages, algebraic modeling and
probabilistic categories. The exact formulas are usually kept secret by the software vendors for
obvious reasons, but most are prepared to provide expert testimony in court if necessary to
justify the legitimacy of their search methods.

 Module D

(videos)

 Module E

Case Showing What Can Happen When Search is Conducted Without Due Diligence. The
following facts in Gragg were found to constitute a failure to take reasonable precautions to
prevent inadvertent disclosure of privileged materials, justifying a waiver as to those
documents. Gragg v. International Management Group (UK) Inc., 2007 WL 1074894 (N.D.
N.Y. April 2007). Defendant’s outside counsel asked in-house counsel “to prepare and produce
to him all documents relative to the proposed project.” In-house counsel in turn delegated the
task to a “non-attorney assistant.” The assistant “then prepared and compiled in electronic
format a disk containing those materials and forwarded them directly to defendant’s outside
counsel who in turn, without first reviewing the documents, sent the disk to plaintiff’s attorney.”
Court: me to conclude that reasonable precautions were not taken to prevent the disclosure of
privileged materials.

A decision in Texas suggests that inadequate keyword searches could lay a predicate for
spoliation sanctions when the defective searches cause evidence to be lost. The plaintiff relied
upon an untrained associate attorney to do keyword searches, apparently to decide which emails
of a key witness to preserve and produce. The associate’s sleuthing skills were poor and she
botched the job. As a result, numerous relevant emails were lost; emails that defendants claimed
would have helped their defense. Court: sanctions may be appropriate in other cases where
evidence is lost.

You may not need to hire the e-discovery search equivalent of Sherlock Holmes for every case,
but for some cases, it may be a good idea. This is especially true when large amounts of ESI are
involved. Then, more sophisticated concept-type search alternatives to keyword search should
be considered because keyword searches alone may not work.

 Module F
The preservation of discoverable ESI in litigation is a core activity of any e-discovery team. It is
also a key component of risk management. Obviously, if you do not preserve electronically
stored information, and it is deleted, then you will never be able to find it or collect it,
much less review and produce it. Risk control in e-discovery begins with the routine
employment of effective litigation hold procedures. This is the best way to minimize the chance
of inadvertent or intentional destruction of relevant electronic records.

Even when no human errors are made, and the system design is near perfect, spoliation
can still occur for a variety of reasons. For one thing, even though a suit may already have
been filed, you still may not be able to determine what ESI is relevant and should be preserved,
and what isn’t. Under today’s liberal notice pleading rules in federal court, it can be difficult,
some might say impossible, to know exactly what ESI should be preserved and who should be
notified of the preservation obligation. Pleadings can be so vague that the scope of a litigation
hold is frequently a guessing game, especially at the beginning of a case when the duty to
preserve is triggered.

The typical analysis to determine preservation scope is threefold: (1) what is the subject
matter of the discoverable ESI that should be preserved; (2) who are the witnesses and
custodians who may possess or control the discoverable ESI; and (3) what is the time
frame of the discoverable ESI.

This kind of subject matter and issue determination must be performed right after a suit has
been filed. At this point, the defense lawyers may know little or nothing about the case beyond
what is stated in a complaint. Even worse, the preservation duty may be triggered even before a
complaint has been filed, when it is reasonably certain that litigation is likely. At that point, it
frequently requires a crystal ball to try to guess all of the issues in a case. It is often just as
speculative and risk filled to try to determine who the witnesses may be in the case, and what
additional employees or third parties may be custodians of discoverable information, even
though not direct witness. Even the time component may be vague, and you may not be sure
how far back in time you should go, or how far forward.

Internal corporate teams must try to set up systems that will mitigate against these inherent
uncertainties and risks. the first task of a team must be to self-organize. Team staffing requires
careful selection of compatible people from three different sectors: law, IT, and management.

After a team is fully formed and operational, and everyone is fully briefed and understands its
missions and upcoming activities, one of its first tasks is to address litigation hold and collection
procedures. Still, at this point, you are not yet ready to design final preservation and collection
procedures. For most teams, that is still a year or so away. Instead you create interim protocols.
The procedures, even the interim procedures, must comply with the current laws. For instance,
it is probably not legally sufficient to simply send employees an email telling them not to alter
or destroy relevant files, and then hope for the best. Much more follow-up is required.
Otherwise, if a mistake is made, and ESI is destroyed or altered, the company could face
severe sanctions. For this reason, as a best practice, many companies are now moving to
automated systems that supplement employee compliance.

 Module G

(video)

 Module H

A survey of records managers by Cohasset reveals continued neglect in the management of

electronic records. The survey shows 40% of organizations do not include electronic records in
their retention schedules and 55% do not include emails; only 14% always follow their records
retention policy; 44% do not include electronic records in their litigation hold procedures; and,
46% do not think their electronic records are accurate, reliable or trustworthy. This modules
analyzes the study and what it means. It also examines the Quon decisions by the Ninth Circuit
and Supreme Court as an example of the trouble that can be caused by poorly enforced
computer use policies.

Another interesting finding is that most IT departments administer electronic documents, but
they have no understanding of the basic premise of records management, that all records should
have a “life cycle.” That is, they are born, have a useful life of some duration appropriate for
the type of record involved, and then die. In other words, records are only supposed to be
retained for as long as they are needed to meet the organization’s legal and business
requirements. After that, they are supposed to be destroyed, or in some rare instances,
like with historical documents, archived for preservation.

The “stunning business risks” created by the negligent management of electronic records
is a high priority problem. It is too big and too complicated a problem for any one branch of a
large organization to solve on its own. It is time for the legal departments, IT, records
management and operations management to stop working in isolation. They have to work
together on this common task.

 Module I

The FTC e-discovery chair stated that, in his view, parties have three general options for
responding to discovery:

1. Hardball – prolongs investigation and is costly.

 2. Let’s-see-if-they-can-find-it – again, prolongs investigation and is costly.
3. Co-operation – fastest, surest results and is the least costly.

Most of the time all of the relevant data needed for a case will be stored on the key players’
Enterprise, Local and Individual systems. Sometimes you may also need to look at Archives
too, depending on what you find in the more easily accessible stores, and how difficult it is to
get at the ESI on Archives. Back-up tapes and Legacy Data are not usually needed. David
explained that the FTC typically only requires two daily backup tapes be preserved, just in case
they want to look at them later, which they usually don’t. He noted with a chuckle that the FTC
picks which two tapes to preserve, not the respondent, and they usually just pick two at random.

David’s presentation also included the fundamental message of my writings, that building an
interdisciplinary Team is key to e-discovery compliance. He recommended, as do I, that the
Team include IT, in-house and outside counsel, and vendors. He also advised that you “get
everybody in the same room.” Otherwise, you will inevitably play the old child’s game of
telephone, where a simple message is whispered for one person to the next, and by the time it
reaches the last person, it is totally screwed up. He said it may seem expensive to some
companies to assemble such a multidisciplinary Team, and have them meet regularly and in-
person, but he is convinced you save money in the long run.

Oliver Gierke has found that vendors can offer both expertise and cost control. Their expertise
includes: 1) data forensics, which he has never seen done in-house because you may need an
independent expert to testify on authenticity and chain of custody; 2) collection; 3) processing;
4) hosting data for review because most companies and firms do not have the capacity to store
large amounts of ESI; 5) production; and 6) consulting. Vendors can provide cost control by: 1)
exclusive or long term contracts at discounted rates; 2) retention of data only when needed; and
3) hiring contract lawyers for review. He thinks that a good vendor can save you a lot of money,
although the expenses are front-loaded at the beginning of the case. Oliver also noted a few
pitfalls of reliance on outside vendors. Their services are expensive, there is less control than
doing things in-house, and more room for miscommunications.

 Module J

This was a mammoth e-discovery project. There were 1,726 Requests to Produce propounded
by tobacco companies against 30 federal agencies for tobacco related records. The hardest part
of the project was the search of 32 million Clinton era email records.

The parties in the tobacco litigation were, under Jason’s leadership, able to cooperate and agree
upon boolean search parameters that reduced the total universe to be reviewed for production by
99%. That is, in my experience, a very high cull rate. The use of keyword based culling alone
can rarely, if ever, go beyond the one percent barrier.

Jason then explained that the core problem is that the one percent solution does not scale. The
government could afford to review and produce one percent of the Clinton era email, but cannot
afford to review and produce one percent of Bush’s email, which equals 2 million emails (1% of
200,000,000 = 2,000,000), much less the expected email of Obama (1% of 1,000,000,000 =
10,000,000). What would it cost and how long would it take to review ten million emails (1% of
1 billion)? Jason estimates it would cost at least $20 Million and take a team of 100 lawyers
working 10-hour days, seven days a week, over 28 weeks.

Most litigation lawyers today do not understand just how hard it is to search large data-sets.
They think that when they request production of “all” relevant documents (and now ESI), that
“all or substantially all” will in fact be retrieved by existing manual or automated search
methods. This is a myth.

When a large collection of heterogeneous, disorganized, computer files are searched, which is
the typical scenario in e-discovery, the search results are divided into four different categories as
shown in the search quadrant below.

The old days of simple keyword search for relevant documents are coming to an end. We can no
longer afford its gross inefficiencies and its outrageous expense. There is simply too much data
in law suits today to continue using this method of search from the 1980s. It was only able to
recall 20% of the relevant information when it first started in the 1980s, and still does little
better than that today, even in the hands of experts. My guess is that average lawyers with no
special expertise in keyword search are only achieving Recall of from 10% to 15%, but like the
attorneys in the Blair and Maron study, think they are getting most of it. The power of myth is
strong.

There has got to be a better way than negotiated keyword search. Many people are working on
this problem right now, myself included, and breakthroughs are imminent. As Jason Baron put it
at the end of his session at U.F.:
We are just at the beginning, sort of the dawn of some new paradigm in the law. There is
something happening out there, something different – and you can feel it.

 Module K

I submit that the negotiated key word search model prevalent in e-discovery today uses the same
guessing game model as Go Fish. The party requesting ESI guesses what key words might
produce evidence to support their case. Do you have any emails that use the keyword “King.” It
is necessarily a guess as to what keywords to use because the requesting party cannot see the
responding party’s cards. Only the responding party sees all of their own cards, and that is as it
should be.

The responding party has a right to privacy. They should not be required to give the requesting
party the keys to the server room, the whole deck of cards. The requesting party is either suing
the responding party, or being sued by the responding party. Either way, the requesting party
should not be permitted to enter and search every nook and cranny of their adversary’s inner
sanctum.

The way the game is now often played, the requesting party also keeps their secrets. They do
not want to reveal exactly what it is that they are looking for. But this is, I contend, not as it
should be.

Regardless of the reason for the requesting party’s non-disclosure, this system of discovery
by guesses on effective keywords is a model of inefficiency. It may be fun to the players
involved, some of whom may reap huge fees in the process, such as the responding party’s
lawyers and vendors. It is not, however, designed to get the right cards on the table in the
quickest and cheapest way possible. Quite the contrary – it is designed to stretch out the process
in an iterative series of negotiated key words and searches. This process involves as much
chance as skill. This kind of approach to the pursuit of truth to attain justice is unreliable and
inefficient. The process not only takes too long, the many bad guesses on keywords create a vast
quantity of false hits. In the world of information science, that is called poor precision.

We must redesign the game of e-discovery search as it is now commonly played. We should
design a new game where the responding party picks the search methods, not the requesting
party. In this new game the goal is speedy, just and inexpensive discovery. Get the right cards
on the table in a quick, fair and efficient manner. With this goal in mind, it is obvious that the
cards should be picked by the person holding them, the responding party. The responding party
should design the search strategy, not the requesting party. It is, after all, their hand, and so they
can see for themselves what search procedures and terms will work or not.
In order for this new game to work, the responding party needs to know what the requesting
party is really looking for. What cards do they want? They might be able to find them, but not if
they do not know what they are looking for.

This new game can only work if the search is controlled by the responding party. It is, after all,
their data, their IT systems, their data custodians, their employees, their agents, their attorneys,
their language, their retention policies, their retention practices, etc.

Bottom line – we need to stop fooling around with search in e-discovery. That means taking the
blindfolds off, but more fundamentally, it means redefining the goals of the game of discovery
itself. All too often the goal of discovery today is to try to take your adversaries secrets, but
keep your own. Lawyers try to win a case by discovery. Perhaps because they have so few
trials, they lose track of the fact that discovery is not supposed to be an end in itself. It is just
supposed to be a preparation for trial.

This perverse game of selective disclosure might have worked in the paper world
(although that is debatable), but it no longer works now. We now have a Saganesque
number of cards – billions and billions. No one can afford to play this game any more. It
should be obvious by now that if you play this game, you will quickly run out of time and
money for the real game – the true purpose of litigation – a trial on the merits. How else do you
explain a 98% settlement rate in federal court? Yes, trials are expensive. But if discovery were
to cost less than it does now, perhaps far less, then there would be adequate resources remaining
after discovery to conduct a trial.

Under the new cooperative based, producer-search-driven discovery here proposed, the trials
themselves would also become simpler and more streamlined. If lawyers did not play the old
games of truth manipulation, and just let the chips fall where they may, many unnecessary side
issues would fade away before trial. When bad facts come out early, pseudo-issues go away
early too. This inevitably results in fewer issues remaining for trial. Thus, if discovery was
changed as here recommended, the cost of trials could also be reduced.

This new game also requires cooperation and transparency by the responding party,
moreover it requires their initiative and leadership. The responding party can no longer
just sit back and watch poor guesses being made. They must take the lead in getting the
truth out. This is a burden, but the responding party is more than compensated for this
burden by the protection this provides from over-broad, expensive, inefficient search. It
also protects the responding party from having to show their whole deck of cards, their
entire ESI collection. The protection of privacy rights is an important factor to many.
  Module L

My idea of multi-modal is to create a recipe of search methods appropriate for the

particular project. One project may rely heavily on keyword boolean search, with just a few
alternatives, or maybe none at all. Another may rely heavily on linguistic analysis, or on new
types of software, or other creative approaches. I had the pleasure of citing TREC Legal Track
research against Jason to support my argument that a multi-modal approach would be much
more effective than simple keyword search alone.

New search methods and cooperative attitudes are the best way out of the e-discovery morass
we are now in, not rewriting the rules once again. The rules are pretty much fine as they are
(although I would make a Rule 16(b) hearing mandatory). We do not need to abandon discovery
or dramatically change the rules of the game. We need to improve our game skills and attitude.
We need to think different and to cooperate. We need to channel our adversarial skills and
arguments to the meaning of the law and the facts, not the hiding of facts. The desire of many
trial lawyers today to control the facts, and rewrite history, so that they can win a case is
misguided. This is what is ruining litigation today, not discovery or e-discovery per se.

Electronic discovery is over expensive today because it is driven by this type of misplaced
adversarial attitude, compounded by a lack of competence and over-reliance on vendors.
Vendors have their place, and are often a key part of a good e-discovery team, but they are
not lawyers and should never be in charge of e-discovery. Most of them profit from
keyword search models of over retrieval and review. So too do many law firms with their
armies of reviewers.

The over-review models that dominate e-discovery today are doomed. The future belongs
instead to a cooperative, ambidextrous, concept laden fellow named Waldo. The problem is, at
this still early stage of the game, he can be awfully hard to find.

 Module M

(video)

 Module N

Judge Facciola begins his analysis by noting that there is no rule governing criminal procedure
as to appropriate format for production of documents. He finds it reasonable in this
circumstance to apply Rule 34 of the Federal Rules of Civil Procedure. In his words: “it is far
better to use these rules than to reinvent the wheel when the production of documents in
criminal and civil cases raises the same problems.”
Defendants argued that this ESI search was deficient, and did not comply with Judge
Friedman’s order, for three reasons. First, the government did not interview the employees
whose computers were searched. In other words, defendants accuse the AUSAs (Assistant
United States Attorneys) who represent the government in this case of not discharging a key
responsibility of the Zubulake duty, the duty to interview key players. These widely accepted
duties include the directive of Judge Scheindlin in Zubulake V to communicate with the “key
players” in the litigation, in order to understand how they stored information. Zubulake v. UBS,
229 F.R.D. 422 (S.D.N.Y. 2004). I would add that such direct talks also allow you to understand
the language the key players used so that you can more intelligently pick the words to use in a
search.

The second deficiency alleged was the government’s alleged failure to have any of the
government employees search their own computers. Instead, the only search performed was a
keyword search by the government’s search team. The employees know their own data the best.
Why not ask them to search for it? You could also do a keyword search. How can a search be
“thorough” and “complete” unless the custodians are involved in the search? Is that a “good
faith effort to uncover all responsive information” as Judge Friedman ordered? Judge Facciola’s
order does not discuss this issue, and I suspect that if the defendants renew their motion to
compel, and this time support it with expert testimony, that the experts’ opinions will focus on
this point.

 Module O

what can happen when lawyers over-delegate to their client the lawyers’ duty to find and collect
digital evidence.

The legal profession has an ethical duty of competence and diligence. It has been embodied into
our Code of Professional Conduct for years. See Rule 1 and 1.3 ABA Model Rules of
Professional Conduct. For litigation attorneys handling discovery these basic duties prevent
them from over-delegating e-discovery to non-lawyers. They cannot just tell the client George
to do it and let it go at that. That may have been ok in the old days when documents were all
paper and did not throw themselves away. But in today’s world where data retention
architecture has replaced simple filing cabinets, an attorney has to personally supervise these
efforts.

The attorney cannot simply tell the client to make a complete search and then walk away. The
lawyers have to get their hands dirty. They have to dip into the digital mud and make minimum
good faith efforts. They have to look at the client’s ESI world, touch it, open a few computer
files and most importantly, talk about it. This is not a standard of perfection. Far from it.
Mistakes will still happen, even with expert Georges. But hopefully fewer mistakes will happen
and less colossal ones, like not finding any internal emails at all.

Litigation lawyers have no problem understanding and following that dictate when it comes to
other remote areas of the law, like immigration, tax, probate or real estate. But they do have a
problem when it comes to applying that rule to discovery. They assume that discovery of
documents still means paper records and they know how to do that. Everyone does. It’s simple.
They refuse to accept that there are no more paper records, just print-outs of electronic originals.
They refuse to accept that any kind of discovery could be so difficult that they could not easily
learn it with a CLE or two. They assume that e-discovery is just like regular paper discovery,
but with a lot of hype. They could not be more wrong as the plaintiff lawyers in this case found
out.

 Module P

The Sedona Conference has done it again and group-written two more excellent guides:
one on Legal Holds, and the other on Email Management.

when and how to preserve ESI for purposes of litigation. In their words: The basic
principle that an organization has a duty to preserve relevant information in anticipation
of litigation is easy to articulate. However, the precise application of that duty can be elusive.
Everyday, organizations apply the basic principle to real-world circumstances, confronting the
issue of when the obligation is triggered and, once triggered, what is the scope of the obligation.
This Article, intended to provide guidance on those issues, is divided into two parts: The
“trigger” and the “legal hold.”

We all agree that it depends on the circumstances. In some circumstances, the inaccessibility of
ESI will take it outside of the scope of preservation, but in some circumstances it will not

The scope of a party’s preservation obligation can be described as follows: Once a party
reasonably anticipates litigation, it must suspend its routine document
retention/destruction policy and put in place a litigation hold to ensure the preservation of
relevant documents. As a general rule, that litigation hold does not apply to inaccessible
backup tapes, for example, typically maintained solely for the purpose of disaster recovery,
which may continue to be recycled on the schedule set forth in the company’s policy. (emphasis
added).-

The second commentary on email is a short gem edited by Thomas Y. Allman

 1. Guideline 1: Email retention policies should reflect the input of functional and business
units through a team approach and should include the entire organization including any
operations outside the United States.
2. Guideline 2: The team should develop a current understanding of email retention
polices and practices actually in use within the entity.
3. Guideline 3: An entity should select features for updates or revisions of email retention
policy with the understanding that a variety of possible approaches reflecting size,
complexity and policy priorities are possible.
4. Guideline 4: Any technical solutions should meet the functional requirements identified
as part of policy development and should be carefully integrated into existing systems.

The Sedona Conference has another very helpful guide on preservation and inaccessible
data. Decision Tree for Determining ESI Preservation Obligations. It is designed to help you
decide what types of ESI you need to preserve upon notice of litigation or likely litigation.

1. Guideline 1. Where litigation is anticipated but no plaintiff has emerged or other

considerations make it impossible to initiate a dialogue, the producing party should
make preservation decisions by a process conforming to that set forth in the Decision
Tree in Figure 1.
2. Guideline 2. As soon as feasible, preservation issues should be openly and
cooperatively discussed in sufficient detail so the parties can reach mutually satisfactory
accommodation and also evaluate the need, if any, to seek court intervention or
assistance.
 3. Guideline 3. In conjunction with the initial discussions or where appropriate in the
response to discovery requests, parties should clearly identify the inaccessible sources
reasonably related to the discovery or claims which are not being searched or preserved.
4. Guideline 4. A party should exercise caution when it decides for business reasons to
move potentially discoverable information subject to a preservation duty from
accessible to less accessible data stores.
5. Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty,
for entities to manage their information in a way that minimizes accumulations of
inaccessible data, provided that adequate provisions are made to accommodate
preservation imperatives.
6. Guideline 6. An entity should encourage appropriate cooperation among legal and other
functions and business units within the organization to help ensure that preservation
obligations are met and that resources are effectively utilized.

SECTION THREE

 Module A
(video)

 Module B
Judge Scheindlin’s speech is on the 2006 rules amendments. She begins with the standard
explanation from the commentary on why the new rules were needed:

1. volume of e-records, much more than paper records;

2. e-storage systems are dynamic; created and destroyed automatically;
3. ESI is difficult, but not impossible to delete (you only transfer information from an
accessible location to inaccessible location);
4. ESI has to be retrieved, restored and translated before it can even be reviewed.

The routine good faith operation of an electronic records storage system mentioned in the rule
can be proven by reference to a company’s written records retention policy. That is the
document, usually very long and complicated, that tells you when to save records, and for how
long, and when to delete them. If the deletion of ESI was in accordance with the company’s
written manual on the subject, then you may be able to prove the loss of evidence was the result
of routine and good faith operations. This assumes, however, that: a) the company has such a
manual; and, b) the book is routinely followed. In reality, a company’s records retention
policies are often ignored, and seldom enforced. That makes the routine needed for Rule 37(e)
safe harbor protection a difficult element for most companies to prove.
Even in the case of automatic ESI destruction, the defense will only work if the electronic
janitor did its job before the human in IT was, or should have been, told by legal that there was
a lawsuit brewing, and the auto-destruction routines should be placed on hold. If a litigation
hold was not implemented when it should have been, then the practice lacks the good faith
needed for the safe harbor, even if it has the routine.

 Module C

The last step, the Tenth Step, is governed by the rules of evidence, not procedure. The essence
of Paul’s book is that the old paper-based rules of evidence are inadequate to deal with
today’s world of digital information. Just like we now have new rules of civil procedure to
govern the discovery of electronic information, we also need new rules of evidence to govern
the admissibility of electronic information at trial.

The Tenth and last step of the EDBP is Evidence. It comes after the discovery process is
completed. In spite of this fact, I strongly agree that Evidence should be included in the e-
discovery work-flow model. If you discover information, and it is not admissible as
evidence, or is discounted as untrustworthy and given little weight, then the whole exercise
of discovery has been pointless.

Our system of justice is based on the adversarial model where two or more sides present
their opposing views of the truth, and the judge and jury sort it out to do justice. The
cooperative e-discovery movement stands by the adversary system, but demands that the
contests take place in the right arena, in the court rooms where there is a judge and jury
to monitor and declare winners, not in the backrooms of ESI production.

It is our hope that as discovery becomes more cooperative, the contests concerning electronic
information will shift from discovery of ESI, to the admissibility and weight of ESI at trial. The
adversarial process will shift from the first nine steps in the e-discovery model, to the Tenth
Evidence Step. George Paul’s book will arm the lawyers and judges of the future with the
background needed to carry out the battles on the admissibility and probative value of ESI.
Foundations of Digital Evidence makes the strong argument that our current jurisprudence,
based as it is on paper, not ESI, fails in two fundamental areas: authenticity and hearsay. The
fundamental reason for this, which Paul’s book makes very clear, is the change in our system
of recording information, the change from tangible paper to intangible electrons. When
our current rules of evidence were conceived and last revised there was no expectation that
people would stop writing on paper and instead write with zeros and ones. In fact, it has taken
several years after this transformation for thinkers like Paul to begin to understand the
significance of this shift upon the Law.

Our authenticity rules were all designed and perfected for authenticating paper
documents. No consideration was provided for purely ephemeral information such as
computer files. Paul shows that under our current rules of evidence, very little is required to
establish the authenticity of a computer file. In fact, the paper-based rules inadvertently
allow almost all ESI to be admitted into evidence with few if any safeguards as to
authenticity. This leaves our legal system open to abuses and uncertainty that the rules of
evidence are supposed to prevent.

 Module D and E

(video)

 Module F and G

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties;
relative access to relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of
depositions and interrogatories or on the length of depositions under Rule 30. By order or local
rule, the court may also limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored Information. A party need not provide
discovery of electronically stored information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On motion to compel discovery or
for a protective order, the party from whom discovery is sought must show that the
information is not reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the requesting party
shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify
conditions for the discovery.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by
discovery in the action; or

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions * * * * * (e)

Electronically Stored Information. Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an electronic
information system.

 Module H

Every judge who has ever struggled with discovery issues wishes that the lawyers involved had
a better understanding of proportionality, that they had spent more time really thinking about
how it applies to the requisites of their case.

The primary rule to understand is how proportionality effects the scope of relevance as set forth
in Rule 26(b)(1), FRCP: Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit.
But you also need to understand how it impacts a lawyer’s overall duty to supervise a discovery
request and response as set forth in Rule 26(g). See Rule 26(g)(1)(B)(iii), FRCP: neither
unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior
discovery in the case, the amount in controversy, and the importance of the issues at stake in the
action.

 Module I

Regarding Electronically Stored Information (“ESI”)

Preservation

1. The ranges of creation or receipt dates for any ESI to be preserved. (In almost
every case there is a date before which the ESI is not relevant. In many there is also an
after date. Disagreement between parties on date range should be resolved by phased
discovery and reservation of rights to object after first phase is completed.)
2. The description of ESI from sources that are not reasonably accessible
because of undue burden or cost and that will not be reviewed for
responsiveness or produced, but that will be preserved in accordance with
Federal Rule of Civil Procedure 26(b)(2)(B). (Backup ESI is  almost always so
protected, unless it has the only copy of important information.)
3. The description of ESI from sources that: (a) the party believes could contain
relevant information; but (b) has determined, under the proportionality factors, is
not discoverable and should not be preserved. (The keyword here is “could.”
Maybe it has relevant information, maybe it does not. Also important in determining
discoverability under governing proportionaity rules is the “importance” of the
information to material issues of fact in dispute. You must consider probative value. In
my experience with big data most “merely relevant” information is a waste of time.
There is too little probative value to most of it to even try to capture it all.)
4. Whether to continue any interdiction of any document-destruction program,
such as ongoing erasures of e-mails, voicemails, and other electronically
recorded material. (Typically the key custodians identified should have their email
auto-delete functions turned off, and voice mail, but as to them only, not the whole
enterprise. Plus, I cannot recall voice mail ever making a difference in a case. It
typically has low probative value.)
5. The number and names or general job titles or descriptions of custodians for
whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing
manager”). (This is the broad list of key custodians. They are often divided in classes
by probable importance of their ESI to the outcome of the case. Although all classes
may be preserved, only the most important are actually reviewed, at least at first.)
6. The list of systems, if any, that contain ESI not associated with individual
custodians and that will be preserved, such as enterprise databases. (A list not
associated with custodians usually refers to department type servers where a number of
people in the department could store documents, to document management systems, or
to general databases, such as payroll.)
7. Any disputes related to scope or manner of preservation. (You should get these
issues resolved asap. Typically you would want to preserve until the issue is resolved,
unless the expense is too great or the other side’s position is too unreasonable. But
even then you run some risk, and so quick adjudication on issues like this are
important.)
Liaison

8. The identity of each party’s e-discovery liaison, who will be knowledgeable

about and responsible for each party’s ESI. (Losey always like to see the role and
name that he invented back in 2006 – “e-discovery liaison” – used by a court. One of
his first e-Discovery “Liaisons” is now a U.S. Magistrate Judge in the Southern
District, and a very good one at that, especially in e-discovery.)

Informal Discovery About Location and Types of Systems

9. Identification of systems from which discovery will be prioritized (e.g., e-mail,

finance, HR systems). (Typically the communications between people, the
contemporaneous writings, are the ESI with the highest probative value.)
10. Descriptions and location of systems in which potentially discoverable
information is stored. (Typically this means a description of all IT systems where
relevant ESI might be stored, and not just the high value targets like communications.
Document management systems and network drives might also be listed here.)
11. How potentially discoverable information is stored. (This is a follow-up on the
prior checklist item that describes how the ESI is stored. Usually it is stored manually
at the discretion of listed custodians. They either save the documents or email or not.
Where they save it may also be within their control. They may save it on personal
thumb drives, or they may print it out to store. You have to interview the custodians to
find out how they stored it. Sometimes the potentially discoverable information is stored
automatically by other software systems, such as payroll systems, and sometimes the
location is predetermined.)
12. How discoverable information can be collected from systems and media in
which it is stored. (Usually it is collected by copying. That needs to be done carefully
so that metadata is not changed. Not hard to do, but IT expertise is usually required to
do it correctly. Forensic collection is usually not necessary, especially collection of
double-deleted files and unallocated space, as such ESI is usually protected under
26(b)(2)(B).)

Proportionality and Costs

13. The amount and nature of the claims being made by either party. (The monetary
value should not be exaggerated by plaintiffs, but usually they feel the need to do so for
posturing purposes and other reasons. Suggest this impediment be avoided by
disclaimers and reservation of rights. Beyond amount issues, the “nature” of the claims
should be carefully understood and discussed with an aim to identifying the actual
disputed facts. Discovery should always be focused and have evidentiary value. It is
never an end in itself, or at least should not be. Also, do not forget that subject matter
discovery is no longer permitted under revised Rule 26(b)(1). It is now limited to claims
and defenses that have actually been raised in the case.)
14. The nature and scope of burdens associated with the proposed preservation
and discovery of ESI. (Try to include actual monetary burden expected, usually with
a range, but restrain the urge to exaggerate. Spend time to do this right and get into
some detailed metrics. Consult an expert where necessary, but never b.s. the judge.
They do not like that and will remember you.)
15. The likely benefit of the proposed discovery. (The requesting party should spell it
out. Fishing expeditions are not permitted. The old “reasonably calculated” jargon is
gone from new Rule 26(b)(1), at least as a definition of scope, and that change voids a
lot of case-law on the subject.)
16. Costs that the parties will share to reduce overall discovery expenses, such as
the use of a common electronic-discovery vendor or a shared document
repository, or other cost saving measures. (In my experience this is very rare,
 Typically it only makes sense in very big cases and or between co-defendants or co-
plaintiffs. There are usually too many confidentiality issues to share a vendor with
opposing parties.)
17.   Limits on the scope of preservation or other cost-saving measures. (Cost
savings should always be considered. This is required of all parties, attorneys and
judges under the 2015 revision to Rule 1, FRCP. So too is “speedy” and “just.”)
18. Whether there is relevant ESI that will not be preserved in accordance with
Federal Rule of Civil Procedure 26(b)(1), requiring discovery to be proportionate
to the needs of the case. (Typically the answer here is yes, or should be, and some
discussion may be required. Preservation is required by law to be reasonable, not
exhaustive or perfect. Reasonable means proportionate. Moreover, if ESI is not
relevant under the proportionate definitions of revised Rule 26(b)(1) then it does not
have to be preserved because only relevant ESI need be preserved.)

Search

19. The search method(s), including specific words or phrases or other

methodology, that will be used to identify discoverable ESI and filter out ESI
that is not subject to discovery. (Please students, exchanging keywords should be
just the beginning, not the whole process. It is only one of many possible search
methods. Use the Hybrid Multimodal method, which all readers of my blog and books
should know pretty well by now.)
20. The quality-control method(s) the producing party will use to evaluate whether
a production is missing relevant ESI or contains substantial amounts of
irrelevant ESI. (The problem of missing relevant ESI is the problem of Recall, whereas
the problem of too much irrelevant ESI is the problem of Precision, but also, to some
extent, to the problem of duplication. All good electronic document review experts have
a number of different quality control techniques to improve recall and precision. Not an
expert? Then perhaps you should consult with one in your firm, or if you have none
(pity), then ask your e-discovery vendor.)

Phasing

21. Whether it is appropriate to conduct discovery of ESI in phases. (Yes. It is a great

way to resolve disagreements by postponing excessive demands for second or third
phases. Chances are these other phases will not be necessary because all that is needed
is produced in the first phase. Alternatively, the producing party might agree to them if
the first production makes their necessity obvious.)
22. Sources of ESI most likely to contain discoverable information and that will be
included in the first phases of Federal Rule of Civil Procedure 34 document
discovery. (Here is where the producing party lists what sources they will search, most
often communication ESI such as Outlook Exchange email servers.)
23. Sources of ESI less likely to contain discoverable information from which
discovery will be postponed or not reviewed. (These are sources that are unlikely
to have ESI with strong probative value, if any, but might. There may never be a need to
review these sources. As a compromise where there is disagreement put these sources
in a later phase. After the first phase is completed  it may not be necessary to look for
more evidence in these secondary sources.)
24. Custodians (by name or role) most likely to have discoverable information and
whose ESI will be included in the first phases of document discovery. (Here is
where you list the key custodians. In most lawsuits all you will ever need to search is
the contents of the mailboxes of these key witnesses, the emails, attachments, calendar
items, etc in their email system.)
25.   Custodians (by name or role) less likely to have discoverable information from
whom discovery of ESI will be postponed or avoided. (These are secondary
 custodians that might possibly have important information, but it is less likely.
Typically, if you cannot revolve disagreements on importance, you agree to postpone
the disputed custodians to second phases.)
26. The time period during which discoverable information was most likely to have
been created or received. (Again, limit the review by timing and if you cannot agree,
then postpone disputed additional times for second phases.)

Production

27. The formats in which structured ESI (database, collaboration sites, etc.) will be
produced. (Typically database production is done by spreadsheet reports, or
sometimes native. The person in charge of the structured ESI should know.)
28. The formats in which unstructured ESI (e-mail, presentations, word processing,
etc.) will be produced. (Producing parties should follow the requesting parties format
request most of the time, except if they ask for paper production. Paper production is
ridiculous and expensive for ESI. Otherwise format should not matter. It is, or should
be, a non-issue.)
29. The extent, if any, to which metadata will be produced and the fields of
metadata to be produced. (A non-issue too. If metadata is part of the document, then
produce it. Your vendor can give you a standard list.)
30. The production format(s) that ensure(s) that any inherent searchability of ESI is
not degraded when produced. (This is a must. In my court it can be sanctionable to
change an electronic document so that it is no longer searchable.)

Privilege

31. How any production of privileged or work-product protected information will be

handled. (Of course you do not produce it, but you log it.)
32. Whether the parties can agree on alternative ways to identify documents
withheld on the grounds of privilege or work product to reduce the burdens of
such identification. (Look for ways to streamline your privilege log. For instance,
under other Southern District local rule you never have to log communications made
after suit was filed.)
33. Whether the parties will enter into a Federal Rule of Evidence 502(d) stipulation
and order that addresses inadvertent or agreed production. (You should always
have a 502(d) Order whenever you are making an electronic production. Mistakes
happen and this is the closest thing we have in the law to a fail-safe. There is no valid
reason to oppose this order. Clear enough for you?)

 Module k

Rule 34 of the Federal Rules of Civil Procedure states that: (1) the requesting party may
designate the form in which the ESI should be produced; and, (2) if the request does not so
specify, then it should be produced in a form in which it is ordinarily maintained, or in a
reasonably usable form. The form in which ESI is “ordinarily maintained” is its native
format. So when an RFP does not specify a form of production, you must produce in
native or in a “reasonably usable form.” This typically means an electronic form that is
indexed and so can be searched by computer.
The plaintiff thus argued that the new rules require electronic production of email, either in
native format or searchable image format, such as the TIFF offered by defendant. The defendant
argued that the RFP asked for paper, and that is what they got. I assume they also argued that
Rule 34 states that “a party need not produce the same electronically stored information in more
than one form.”

 Module L
More on the Key Problem of “Not Reasonable Accessible” Data. Should a Litigation Hold
Include Backup Tapes?

The scope of a party’s preservation obligation can be described as follows: Once a party
reasonably anticipates litigation, it must suspend its routine document
retention/destruction policy and put in place a litigation hold to ensure the preservation of
relevant documents. As a general rule, that litigation hold does not apply to inaccessible
backup tapes, for example, typically maintained solely for the purpose of disaster recovery,
which may continue to be recycled on the schedule set forth in the company’s policy. (emphasis
added)

Admittedly in some rare cases, backup tapes may be the only place relevant ESI is still located
by the time an organization receives notice of a suit. In these circumstances, the imposition of a
hold at that time would be the only way to preserve relevant evidence. If an organization has
notice of these unusual facts, then the general rule should probably not apply, and the hold
notice should cover backup tapes. But such circumstances are highly unusual. Most of the time
a defendant at the time of hold does not know whether the tapes will be needed. In a few
unusual cases, it is later discovered that the tapes were needed, and should have been preserved.
These few exceptional cases do not justify the disruption caused in the vast majority of cases
where the tapes are never needed.

The general rule of exclusion of backup tapes from a hold is tested in the rare case; the case
where it turns out the tapes should have been preserved. A company should not have to stop its
normal, good faith operation of recycling disaster recovery tapes every time litigation is
threatened or materializes.

Should You Save Internet Cache?

Does the duty to preserve potential evidence require you to save your Internet cache? A district
court in Pennsylvania addressed this issue, and, indirectly at least, said NO. Healthcare
Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 2007 WL 2085358 (E.D. Pa. June 20,
2007). The court held that the defendant’s automatic and unwitting deletion of cache files did
not constitute spoliation, and did not warrant any kind of sanctions, even though potential
evidence had been destroyed. The court did not squarely hold there was no duty to preserve
Internet cache per se; instead, it held that, in this case, the destruction of evidence contained in
the temporary cache files was accidental, and was not prejudicial, so no sanctions were
appropriate.

 Module M
First of all, what is metadata? Literally it means “data about data”. Many courts define the term
by referring to the Sedona Glossary of Commonly Used Terms for E-Discovery and Digital
Information Management, which defines “metadata” as: . . . information about a particular
data set or document which describes how, when and by whom it was collected, created,
accessed, modified and how it is formatted. Can be altered intentionally or inadvertently. Can
be extracted when native files are converted to image. Some metadata, such as file dates and
sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to
computer users who are not technically adept. Metadata is generally not reproduced in full form
when a document is printed.
All computer files have metadata associated or within them that provides information
about the files.
…When a party is ordered to produce electronic documents as they are maintained in the
ordinary course of business, the producing party should produce the electronic documents
with their metadata intact, unless that party timely objects to production of metadata, the
parties agree that the metadata should not be produced, or the producing party requests a
protective order. The initial burden with regard to the disclosure of the metadata would
therefore be placed on the party to whom the request or order to produce is directed. The burden
to object to the disclosure of metadata is appropriately placed on the party ordered to produce its
electronic documents as they are ordinarily maintained because that party already has access to
the metadata and is in the best position to determine whether producing it is objectionable.
Placing the burden on the producing party is further supported by the fact that metadata is an
inherent part of an electronic document, and its removal ordinarily requires an affirmative act by
the producing party that alters the electronic document.
Note that whenever a metadata production will create a substantial burden on the producing
party, then the requesting party will have to provide good cause for its production.

Objections to Native Production

Here are the four basic objections to native format production.
1. Native production destroys metadata. When you access native files you change their
metadata. (This is true, it is also true that there are usually ways to guard against that.)
 2. Native production can reveal privileges hidden in metadata, both attorney-client and
work product. Metadata can for instance show such work product as when files were
gathered, last opened, printed, etc., as opposed to the metadata existent pre-litigation
during the relevant time period of the dispute. (This could be true if counsel was not
careful to preserve the original files, and again, there are usually ways to protect against
this.) As another example, metadata in the form of hidden comments to a word
document could reveal privileged attorney communications. (Again true, but a privilege
review of the metadata would show these comments, and so allow them to be withheld.)
3. The metadata in the native files is not relevant to plaintiff’s claims. (This is the
strongest argument for objection to production of metadata and is in accord with Sedona
Principle 12 commentary, which states that most metadata is useless and a waste of time
to review. So, if the requesting party argues for native file format on the basis that it
needs the metadata, challenge the relevance of the metadata. Unlike the plaintiffs in
Williams I who made a strong showing that they needed the native spreadsheets, the
requesting party may be unable to show any particular need for native file production.
See Williams II supra, and Wyeth v. Impax Laboratories, Inc., 2006 WL 391331 (D.
Del. 2006)).
4. It is difficult to ensure that native files have not been changed after production. (Judge
Waxse destroyed that argument in Williams I when he pointed out that hash values
guarantee authenticity. Williams I, Supra at 655. Still, if hash I variations of this
argument may still be persuasive.)

 Module N
The reason is simple: native is usually the most efficient and costs effective manner for ESI
review and production. Usually the best, but not always. The colonialists are right, there
are still many obstacles to full native review of all types of ESI in all circumstances, but
these obstacles can be overcome with better technology and collaboration.
GeoStar has not necessarily erred by producing the documents in .pdf and .tif formats. Indeed,
GeoStar apparently produced the documents in a format which was most likely to be usable-to
some extent-by any of the parties to this lawsuit, none of whom had the necessary software for
the native format data at the time of the production. In other words, the West Hills Plaintiffs
have received, to the best of the Court’s knowledge, the production that their Request sought.
The obvious moral to this case is that if you are a requesting party, and you want native files,
then you should specifically request the native files at the get-go.

 Module O
Local practice should also require magistrates to carefully review the CMRs for adequacy at
Rule 16(b) hearings. The program will not work, especially at first, without an active, involved
judiciary. Most judges today do not require an e-discovery plan or an alternative stipulation of
no e-discovery. The parties can and do often leave it vague and no judge calls them on it. Often
attorneys leave it vague on purpose, and do not forego e-discovery entirely, just in case they do
not settle and have to hire an e-discovery vendor near the end of the case to do e-discovery for
them. If lawyers in a case want to ignore e-discovery today, most judges are still ok with that.
This also complies with the letter of Rule 16(b) as written, which merely says: The scheduling
order may also include: … (5) provisions for disclosure or discovery of electronically stored
information;

A case out of Atlanta covers a new twist to the paper or plastic issue. In re Netbank, Inc.
Securities Litigation, 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009). District Court Judge Beverly
B. Martin considered a motion by the plaintiff to compel the defendants to produce all ESI is
native format. The defendants basically responded by saying that even though the plaintiff
asked for plastic, they did not want to do what he asked, and the judge should not make them
because the rules did not require it. Instead, the defendants refused to produce ESI in anything
other than TIFF format. That is quite retro of them in my opinion; apparently Judge Martin
agrees, because she granted plaintiff’s motion and compelled native production.
*22 Federal Rule of Civil Procedure 34 states that a party requesting production of
electronically stored information “may specify the form or forms in which electronically stored
information is to be produced.” Fed.R.Civ.P. 34(b)(1)(C). The Advisory Committee Notes to
Rule 34 contemplate that “[t]he responding party also is involved in determining the form of
production.” Fed.R.Civ.P. 34 advisory committee’s note, 2006 Amendment, subdivision (b). In
the instance that the two sides are in disagreement about the form, and they have met to confer
pursuant to Rule 37(a)(2)(B), the requesting party may file a motion to compel, in which case
“the court resolves the dispute[.] [T]he court is not limited to the forms initially chosen by the
requesting party, stated by the respond-ing party, or specified in this rule for situations in which
there is no court order or party agreement.” Id.
We should raise the level of understanding and educate the silent majority of litigators on why
and how to talk. We should also ask our judges to promulgate local rules that encourage, even
force compliance. Right now it is way too easy to avoid e-discovery discussions and get away
with it. Although a few judges complain, like Judge Facciola, most do not; they just wink at the
non-compliance.

 Module Q
Proportionality is the essence of this entire order. Proportionality is in turn a key component of
another theme in Judge Grimm’s Order, Cooperation, which is the fifth and perhaps most
important step in the EDBP. The Order does not just invoke vague concepts. It specifies that
any discovery is disproportional that exceeds certain specified limits, at least to phase one
discovery. These phases are also defined in the Order. Any discovery beyond the permitted
scope is forbidden absent a motion establishing good cause and an order from the court.
Moreover, the standard Discovery Order goes on to state that if the court determines that
additional discovery is appropriate, the Requesting Party will be required to show cause why it
should not be ordered to pay all or a part of the cost of the additional discovery sought.

The specified limits of proportionality for phase one discovery are:

 RFPs shall have no more than 15 categories of documents.

 Only 10 custodians shall be searched.
 ESI more than 5 years old shall not be included.
 Only reasonably accessible sources shall be searched.
 No more than 160 hours shall be expended for search and review services, which are in
turn specifically identified to include:
 identifying potentially responsive ESI,
 collecting that ESI,
 searching that ESI (whether using properly validated keywords, Boolean searches,
computer-assisted or other search methodologies), and
 reviewing that ESI for responsiveness, confidentiality, and for privilege or work product
protection.
  Judge Grimm’s Order goes on to specify that:
 The producing party must be able to demonstrate that the search was effectively
designed and efficiently conducted. A party from whom ESI has been requested must
maintain detailed time

records to demonstrate what was done and the time spent doing it, for review by an adversary
and the Court, if requested.

 Parties requesting ESI discovery and parties responding to such requests are expected to
cooperate in the development of search methodology and criteria to achieve
proportionality in ESI discovery, including appropriate use of computer-assisted search
methodology.
 These are meaningful requirements, especially since they are embodied in a court
order. This kind of detail provides a good opportunity for a judge to sniff out who the
true cooperators in a case are. It allows them to see through the facade of lies they are
often presented with, where both sides accuse the other of being uncooperative.

To make sure the Cooperation requirement is clear Judge Grimm specifies in his Order that:
[T]he parties and counsel are expected to work cooperatively during all aspects of
discovery to ensure that the costs of discovery are proportional to what is at issue in the
case, as more fully explained in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354,
357–58 (D. Md. 2009). The failure of a party or counsel to cooperate will be relevant in
resolving any discovery disputes, including whether the Court will permit discovery beyond
Phase 1 Discovery and, if so, who shall bear the cost of that discovery. Whether a party or
counsel has cooperated during discovery also will be relevant in determining whether the Court
should impose sanctions in resolving discovery motions.

 Module R

Rule 45 governs the issuance of subpoenas, and provides that on timely motion, the issuing
court must quash or modify a subpoena if it requires disclosure of privileged or other protected
matter, or otherwise subjects the subpoenaed person to undue burden. FED.R.CIV.P. 45(c)(3).
Under Rule 45(c)(1), “[a] party or attorney responsible for issuing and serving a subpoena must
take reasonable steps to avoid imposing undue burden or expense on a person subject to the
subpoena.” FED.R.CIV.P. 45(c)(1). Furthermore, Rule 45(c)(3) further provides that “[o]n
timely motion, the issuing court must quash or modify a subpoena that … fails to allow a
reasonable time to comply.” FED.R.CIV.P. 45(c)(3).

One clear lesson to learn from this decision is to have your third-party witness file their own
timely objection upon being served with a subpoena. That was a significant factor here. By all
appearances the mother did not really care if her laptop was inspected or not. Only the son
seemed to care and it was not his laptop. If the mother and son really did not want to have the
laptop and other ESI storage devices subject to forensic inspection, they should have both
objected loud and clear from the start. They should have stated in substantial detail the many
reasons they had for the highly intrusive inspection. They should also have advised the judge on
the case law requiring a showing of good cause before such inspection is allowed. The rules
only intend for parties, or third-parties, to make production of the ESI stored on electronic
devices, not the devices themselves. The actual devices should only be subject to inspection in
unusual cases where you can prove that the parties search and production has not been
reasonably or honestly performed or other even more rare circumstances.

 Module S

Plaintiffs tried to protect their secrets by relying on Evidence Rule 502. It protects
attorney-client secrets and requires clawback of inadvertently disclosed secrets if certain
conditions are met. Defendants denied clawback and the applicability of Rule 502. Defendants
claimed that the plaintiffs’ disclosure of secrets was not inadvertent. Even if the disclosure was
inadvertent, defendants argued that Rule 502 should still not protect the secrets because it only
protects secrets where reasonable steps to prevent disclosure were taken. The claimed that the
way-too-open-door handling of plaintiffs’ alleged secrets was negligent and thus not protected
by Rule 502. Finally, they argued that even if these secrets were protected by Rule 502, they
should still be allowed to tell these secrets, and not give them back, because of the crime-fraud
exception to the attorney-client privilege. That is the rule where a client cannot keep secret any
communications he may have with his attorneys about a crime or fraud that he may commit in
the future. (Confidential communications about past crimes and fraud committed in the past can,
however, be kept secret.)

This Court therefore adopts the following test. First, a court determines whether the disclosed
material is privileged. If it is not, the inquiry ends. If the material is privileged, the court
applies FRE 502(b). If the court concludes that disclosing party satisfied all of the elements in
FRE 502(b), the privilege is not waived. If, however, the disclosing party fails to satisfy any of
the FRE 502 elements, the privilege is waived. In applying FRE 502(b), the court is free to
consider any or all of the five Judson factors, provided they are relevant, to evaluate whether
each element of FRE 502(b) has been satisfied. This Court applies and explains the details of
this test in the following sections.

Three Part Test of Rule 502(b)

Judge Ashman then moved on to consider whether the three requirements of FRE 502(b) were
met wherein disclosure of privileged information will not operate as a waiver when:
 1. the disclosure is inadvertent;
2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
3. the holder promptly took reasonable steps to rectify the error, including (if applicable)
following Federal Rule of Civil Procedure 26(b)(5)(B).”

For part one of Rule 502(b) three-part test, the party should only have to prove that the
disclosure was not done on purpose, that it was a mistake.

The next thing to be proved under the Rule is that “the holder of the privilege or protection took
reasonable steps to prevent disclosure.”

The third and final test under Rule 502(b) is whether the party that made the unintentional
disclosure “promptly took reasonable steps to rectify the error.”

 Module T

Overall the new Rules are helpful, especially to newbies, but hardly the godsend that many hope
for. Aside from questions of form and wording, the amendments had very little impact on my
legal practice. But that is only because the doctrines of proportionality and cooperation that the
Amendments incorporate were already well-established in my firm. Many experienced attorneys
say the same thing. The rule changes do, however, make it substantially easier to explain our
positions to opposing counsel, and the court.

The primary theme of all of the Amendments is clearly Proportionality. The secondary theme is
an attempt to further attorney Cooperation by communication. Two doctrines promoted by the
late, great founder of The Sedona Conference, Richard Braman.

The attention and politics of the Committee was focused on the new wording added to Rule
26(b)(1), which outlined the six criteria to consider to determine proportionality:

1. the importance of the issues at stake in the action,

2. amount in controversy,
3. the parties’ relative access to relevant information,
4. parties’ resources,
5. the importance of the discovery in resolving the issues, and
6. whether the burden or expense of the proposed discovery outweighs its likely benefit.

Rule 37(e) was completely rewritten and was the focus of most of the politics. That explains
why the wording is such a mess. The Sedona Conference recommendations on how to revise the
rules were largely ignored.
I personally do not think the difference between Bad Faith and Gross Negligence is all that
meaningful in practice. For that reason I do not think that this rule change will have a big
impact. Still, it is likely to make it somewhat easier for parties accused of spoliation to defend
themselves and avoid sanctions, especially strong sanctions. If you think this is a good thing,
then celebrate away. I don’t. The reality is this revision may well harm parties on both sides of
the v., defendants and plaintiffs alike. I know we now see many Plaintiffs destroying evidence,
especially cloud emails and Facebook posts. I expect they will rely upon this rule change to try
to get away with it.

SECTION FOUR

 Module C
Cooperation in Discovery is an Ethical Imperative

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for
their clients, they bear a professional obligation to conduct discovery in a diligent and
candid manner. Their combined duty is to strive in the best interests of their clients to achieve
the best results at a reasonable cost, with integrity and candor as officers of the court.
Cooperation does not conflict with the advancement of their clients’ interests—it enhances it.
Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or otherwise
unlawfully alter, destroy, or conceal a document or other material that the lawyer knows
or reasonably should know is relevant to a pending or a reasonably foreseeable
proceeding; nor counsel or assist another person to do any such act.

While a discovery request can be denied if the “burden or expense of the proposed discovery
outweighs its likely benefit,” a party objecting to discovery must specifically demonstrate how
the request is burdensome. This specific showing can include “an estimate of the number of
documents that it would be required to provide . . . , the number of hours of work by lawyers
and paralegals required, the expense.”
First, the approach should be started early in the case. It is difficult or impossible to unwind
procedures that have already been implemented. Second, in multiple party cases represented by
separate counsel, it may be beneficial for liaisons to be assigned to each party. Finally, to the
extent possible, discovery phases should be discussed and agreed to at the onset of discovery.

 Module G

This module explores the world of illegal e-discovery, one of Ralph Losey’s favorite topics.
EDiscoverySecurity.com. You had better not cross the line or you could end up in jail. You
need to know when your client has crossed the line too, which is what happened in the case here
under consideration. All e-discovery professions should have a working understanding of the
Stored Communications Act. It helps define that line. This is a very important federal statute,
especially in so far as cloud computing and social media are concerned.

The Fourth Circuit Court of Appeals has strengthened federal anti-hacker email privacy law by
allowing a civil suit for punitive damages alone, even when there are no actual damages. The
Court recognized that the intentional taking of email stored online was a violation of the
Stored Communications Act (“SCA”), 18 U.S.C. §2707, allowing a victim to sue for
monetary damages to punish the hacker and deter such future conduct.

Section 2701 of the SCA creates a criminal offense for whoever “intentionally accesses
without authorization a facility through which an electronic communication service is
provided” or “intentionally exceeds an authorization to access that facility,” and by doing
so “obtains, alters, or prevents authorized access to a wire or electronic communication
while it is in electronic storage in such system.” 18 U.S.C.A. §2701(a)(1-2).

The Fourth Circuit has strengthened the rights of computer users to privacy by adding punitive
damage teeth to the Stored Communications Act. Since cloud computing has now become so
pervasive, this is an important decision for everyone’s privacy rights, including corporations at
risk for having their own computers and email systems hacked. Hackers beware! You may not
only go to jail, but be sued for punitive damages and fees by everyone you hack.

Apparently this change in the law may also help plaintiffs in class-actions cases that allege SCA
violations, such as suits against service providers like AT&T for turning over private email to
the government without a valid subpoena. It will make it easier to state a cause of action under
the SCA because you will no longer have to plead damages, just an intentional violation.

Practically, this case actually makes it easier for plaintiffs to survive motions to dismiss for
failure to plead actual damages because they now can assert the conduct was “willful or
intentional” and discovery will be required to determine if punitive damages are warranted.
And, because whether conduct is willful or intentional is a question of fact, it will be difficult
for defendants to win summary judgment after discovery as well. In sum, the Fourth Circuit’s
decision may open the door to much more SCA litigation.

 Module I

Are We the Barbarians at the Gate?

It is expressly stated in the government constitutions and other fundamental laws. The United
States stands alone in considering privacy as a secondary, implied right, existing somewhere in
the penumbra of other fundamental rights. Griswold v. Connecticut 381 U.S. 479 (1965).

Further, the few privacy rights we have are almost all lost when we go to work, especially when
we use our employer’s computer systems. Even the privacy right which is arguably the strongest
in our common law system, the right to secret attorney-client communications, is often lost
when you enter the workplace.

Since we have such weak privacy rights, especially for employees, our courts routinely order
foreign parties sued here to produce information that is protected from disclosure in their own
country. From the perspective of these foreign companies, and their employees, we are the
barbarians at the gate bullying away their fundamental rights.

Privacy Laws Outside of the U.S.

Most modern democratic countries today have strong individual privacy rights, including all of
the countries of Europe. They consider personal privacy to be an inalienable human right, on the
same stature as the right to free speech and assembly. The treaties and law that underlie the
European Union embody these privacy principles. The fundamental law in this area is the
European Convention on Human Rights of 1950:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.

The European Union clarified that these privacy rights apply to computer data back in 1995 by
adoption of the European Union’s Data Protection Directive:

Article 1 – Object of the Directive

 1. In accordance with this Directive, Member States shall protect the fundamental rights
and freedoms of natural persons, and in particular their right to privacy with respect to
the processing of personal data.

laws provide relatively weak privacy protection, and this problem is compounded ten-fold by
our “let-it-all-hang-out” discovery system. There are virtually no privacy rights granted to
employees of companies, domestic or foreign, whose employers are sued in a U.S. court. Their
email and private documents will be seized and read, even email kept on their home computers
or personal email accounts. The so called limit of “reasonably calculated to lead to the
discovery of admissible evidence” is bogus and subjective.

If we are to stop being seen as “Privacy Barbarians” by the rest of the world, we need to address
these fundamental concerns. Privacy rights should not be limited to the home and a few zones of
interest. We must learn the harsh lessons of history, of Hitler, Stalin, and Mao, in order to avoid
their repetition in a high-tech world of constant surveillance. The time has come for us to realize
that privacy is an inalienable human right, not a shadowy extension of other rights. Just like the
freedom of religion or free speech, we should not allow it to be contracted away as a condition
of employment. When we finally elevate privacy to a core right, we will join the ranks of other
civilized countries and this conflict of laws will disappear.

In addition to strengthening privacy rights, a solution to the international e-discovery

conundrum requires a significant tightening of our relevancy standards. We need to move away
from our current vague standard. It is ideally calculated for intrusive, over-broad document
requests and often results in wildly inconsistent interpretations on permissible discovery. We
should, instead, only allow discovery of directly relevant information. Moreover, before we start
reading emails and other private communications, there should be some kind of good cause
showing.

Finally, I think we should start to move slightly towards the European, Civil Code system of
discovery, where the judges are far more active and tightly control discovery. I am not
suggesting we abandon discovery altogether and adopt the Civil Code system, but I am
suggesting a more active bench and better policing of over-reaching discovery abuses. Simply
asking counsel to act like professionals and work things out, which is the typical reaction of
most judges today on discovery issues, is a non-solution that has been failing for years.

 Module J

Computer hash is an encryption algorithm that forms the mathematical foundation of e-

discovery. Hashing generates a unique alphanumeric value to identify a particular computer file,
group of files, or even an entire hard drive. As an example, the hash of the animated GIFF file is
shown above. The unique alphanumeric of a computer file is called its “hash value.” Hash is
also known in mathematical parlance as the “condensed representation” or “message digest” of
the original message. It is more popularly known today as a “digital fingerprint.” Hash is the
bedrock of e-discovery because the digital fingerprint guarantees the authenticity of data, and
protects it against alteration, either negligent or intentional. Hash also allows for the
identification of particular files, and the easy filtration of duplicate documents, a process called
“deduplication” that is essential to all e-discovery document processing.

Technically, hashing is based on the substitution and transposition of data by various

mathematical formulas. Thus the process is called “hashing,” in the linguistic sense of “to chop
and mix.” The hash value is commonly represented as a short string of random-looking letters
and numbers, which are actually binary data written in hexadecimal notation. Hash is commonly
called a file’s “fingerprint” because it represents its absolute uniqueness.

If two computer files are identical, then they will have the same hash value. Even if the files
have a different name, if their contents are the same, exactly the same, they will have the same
hash. This allows for easy identification and elimination of redundant documents, the mentioned
deduplication process. But if you so much as change a single comma in a thousand page text, it
will have a completely different hash number than the original. There are no similarities in the
hash numbers based on similarities in the files. Each number is unique. That is how the math in
all hashing works.

Hashing can also be used to determine when fields or segments within files are identical, even
though the entire file might be quite different. This requires special software, but again is
commonly available from many e-discovery vendors, for a price. This software allows you to
hash only portions of a file. Thus, for instance, you can hash only the body of an email, the
actual message, to determine whether it is identical with another email, even when the
“reference” or the “to” and “from” fields are different. This allows for an important filtering
process called “near de-duplication.”

 Module K

Rule 1.6 – Confidentiality of Information

This class is based on the ABA Model Ethics Rule 1.6 – Confidentiality of Information:

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information relating to the representation of a
client.
A lawyer may transmit information relating to the representation of a client by unencrypted e-
mail… because the mode of transmission affords a reasonable expectation of privacy from a
technological and legal standpoint.

Encrypting email may be a reasonable step for an attorney to take … when the circumstance
calls for it, particularly if the information at issue is highly sensitive and the use of encryption is
not onerous.

. communicating highly sensitive or confidential information via email;

. sending an email to or from an account that the email sender or recipient shares;· sending an
email to a client when it is possible that a third person (such as a spouse in a divorce case)
knows the password to the email account, or to an individual client at that client’s work email
account, especially if the email relates to a client’s employment dispute with his employer (see
ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011));

. sending an email if the lawyer is concerned that the NSA or other law enforcement agency
may read the lawyer’s email communication, with or without a warrant.

Securing Communication of Protected Client Information

A lawyer generally may transmit information relating to the representation of a client over the
internet without violating the Model Rules of Professional Conduct where the lawyer has
undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer
may be required to take special security precautions to protect against the inadvertent or
unauthorized disclosure of client information when required by an agreement with the client or
by law, or when the nature of the information requires a higher degree of security.

alysis and Projections

Confidentiality is a critical problem facing all lawyers today. We all need to stay proficient in
this area, including especially concerning the power and importance of encryption. The smooth
operation of our system of justice depends on the confidentiality of the attorney client
relationship. Lawyers must be able to maintain the secrecy of their clients’ ESI. They must also
protect their own work-product, including investigations, strategies, mental impressions and
communications

 Module N
 Module O
 Module Q
Fundamental to professional ethics is the duty to keep the dispute resolution process fair and
honest. Controversies must be settled on their merits based on the facts and the law. Moreover,
lawyers must put the interest of their clients ahead of their own personal interests. These are the
two core truths of attorney ethics. In electronic discovery, we are failing on both fronts.

The e-Discovery Team has been interested in the ethical issues surrounding electronic discovery
since 2006. We have noticed something not seen before in any other field of law. The case law
is dominated by sanctions cases involving spoliation of evidence. Not only that, attorneys are
often directly implicated in this spoliation and accused of many other types of intentional or
negligent misconduct. We have long wondered why e-discovery seems to be a crazy zone of the
law where all attorneys acted like sharks.

1. Rule 1.1 – Competence

2. Rule 1.3 – Diligence
3. Rule 1.6 – Confidentiality
4. Rule 3.2 – Expediting Litigation
5. Rule 3.3 – Candor Toward the Tribunal
6. Rule 3.4 – Fairness to Opposing Party and Counsel

A lawyer shall provide competent representation to a client. Competent representation requires

the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation. A lawyer shall act with reasonable diligence and promptness in representing a
client.

A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).

A lawyer shall not:

a. unlawfully obstruct another party’s access to evidence or otherwise unlawfully

alter, destroy, or conceal a document or other material that the lawyer knows or
reasonably should know is relevant to a pending or a reasonably foreseeable
proceeding; nor counsel or assist another person to do any such act.
b. falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
c. knowingly disobey an obligation under the rules of a tribunal, except for an
open refusal based on an assertion that no valid obligation exists;
 d. in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by
an opposing party.

It is time to build upon modern Rules amendments, state and federal, which address e-
discovery. Using this springboard, the legal profession can engage in a comprehensive effort to
promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This
project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules
calling for a “just, speedy, and inexpensive determination of every action” and the fundamental
ethical principles governing our profession.

 Module R

The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a
means for advancing their clients’ interests and not as a retreat from their duties as loyal
advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery –
who fail even to consider whether cooperation might yield better results – are the ones who
truly fail to serve their clients’ interests.

Many attorneys in this situation attempt to meet their ethical obligation of competence by hiring
an e-discovery vendor to advise them. Unfortunately, this usually does not work, for such
experts frequently only tell the attorneys who hired them what they want to hear. The hired guns
simply supply arguments jazzed up with tech-speak to support the legal argument of the
attorneys who hired them.

Confidentiality.

The only confidential information disclosed here is some of the work-product privileged
thinking and analysis of defense counsel. Unlike the attorney-client privilege, which is held by
the client and can only be released by the client, the work-product privilege is held by the
attorney, and released by the attorney. The disclosure of the attorney’s work product was made
here to advance their client’s interests. It was made to facilitate efficient, cost-effective search
and production, and later to obtain a protective order preventing unduly burdensome,
disproportionate e-discovery. This kind of disclosure does not violate defense counsel’s duties
under Rule 1.6.

Although disclosure of documents waives attorney-client privilege with respect to all other
communications related to the same subject matter, the scope of “subject matter waiver” with
respect to work product materials is more limited. “[A] subject-matter waiver of the attorney
work product privilege should only be found when it would be inconsistent with the purposes of
the work product privilege to limit the waiver to the actual documents disclosed.” “Several
factors figure into the analysis: whether disclosure was intentional or inadvertent, the breadth of
the waiver sought, and the extent to which the requested documents would reveal litigation
strategies or trial preparations.” (emphasis added)

SECTION FIVE

 Module G

three “key considerations” for determining appropriate sanctions for spoliation of evidence:
“(1 ) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of
prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will
avoid substantial unfairness to the opposing party and, where the offending party is seriously at
fault, will serve to deter such conduct by others in the future.” A court may impose dispositive
sanctions for spoliation to remedy prejudice and deter future misconduct.

If you prove intent and bad faith, then you do not have to prove that you have been prejudiced
by the ESI deletion. Instead the defending party must try to prove no prejudice. That is hard to
do when you do not know what the deleted files were.