The identification_ collection_ preservation and production of by xiuliliaofz


									                     WASHINGTON COLLEGE OF LAW




        The identification, collection, preservation and production of ESI in response to
discovery (“eDiscovery”) is one of the most challenging problems in litigation today. The
predominance of ESI has changed the entire context of information exchanged between adverse
parties in litigation. The original Federal Rules of Civil Procedure (“FRCP”) contemplated the
exchange of documents at a time when the flow of recorded information was limited because it
depended upon visible, written documentation stored in file cabinets. It has been reported that in
2007 close to 100 billion e-mails were sent daily. Virtually all corporate documents are now
stored electronically, and the 2006 Amendments to the FRCP contemplate that information will
be exchanged in an electronic format.

        Electronic documents, especially structured databases, often have staggering amounts of
data that can only be read with sophisticated software. Moreover, electronic information can be
transferred instantly to numerous users located around the world and stored on devices ranging
from sophisticated servers with a terabyte (50,000 trees made into paper) or more of capacity, to
handheld PDAs.

        The legal issues surrounding ESI have expanded exponentially. The FRCP, the Federal
Rules of Evidence and numerous court decisions have attempted to create reasonable parameters
allowing parties to comply with the discovery rules within the bounds of financial practicality.
Courts have expended considerable effort to interpret and apply legal concepts to the technical
aspects of ESI including, “preservation,” “proportionality,” and “reasonably accessible.” The
problems with inadvertent disclosure and waiver of privilege have also received increased
judicial scrutiny and are of critical importance in the successful and ethical completion of the
discovery process.

        The complexity of ESI and its potential cost to litigants is often staggering and, unless
checked, will make it increasingly difficult for parties to use our judicial system to resolve
disputes. This cost is one of the stated reasons that the United States Supreme Court has placed
increasing factual pleading requirements on the filing of lawsuits.1 In addition, the failure to
properly comply with the rules covering the exchange of ESI and spoliation of evidence has
resulted in severe monetary sanctions.

        The impact upon practicing attorneys has been enormous. It would not be unfair to state
that prior to 2006 the legal profession was unequipped, and in many cases unwilling, to deal with
eDiscovery. However, the courts have focused responsibility for solving the problems and
complying with the requirements of eDiscovery squarely upon the shoulders of litigation counsel
and required them to obtain the technological background and training to accomplish this task.
Failure to carry out these obligations properly has led to attorney sanctions and disbarment

        Moreover, courts and commentators are looking to institute a fundamental change in the
adversary system from one of confrontation to one of cooperation. This approach recognizes that
the only way the discovery process will work given the varied technologies used to store and
retrieve data is through knowledgeable counsel and IT personnel making informed decisions on
what is practical given the stakes. Judges and magistrates believe (with some justification) that
they are ill-equipped to resolve eDiscovery disputes. This means that if counsel do not cooperate
they are simply “rolling the dice” as to how the court will rule with potentially catastrophic
consequences for their clients.

        Finally, historically, senior attorneys delegated the task of producing and reviewing
documents to junior lawyers while they devoted their efforts to depositions, witness interviews
and trial preparation. Putting aside whether this is, or was, a wise practice, it continues much to
the consternation of junior attorneys on the case. This places an increased responsibility upon
young lawyers from the time they exit law school and enter the increasingly competitive world
of law practice to have a basic understanding of the legal and practical parameters of eDiscovery.

Course Overview:
       The course will rely heavily upon the principles and commentary issued by the Sedona
Conference® and, where appropriate, related cases. Sedona has been the primary institute
concerning eDiscovery and its commentaries have been cited extensively by the courts. The
commentaries are based on current problems in the litigation process and provide excellent
background for a skills based course. A significant amount of course time will be spent by
students preparing for conferences, drafting documents and preparing and arguing motions.

           There will be three essential parts to most classes:

    See Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007).

             Student Preparation: Background reading will be assigned for each class. This
       reading will relate to the subject matter of the lecture.

              Lecture/Discussion: This will set the context, explain the history and application
       of the rules, and present for discussion key evidentiary, philosophical and fairness
       questions with respect to the topic for the day.

              Student Exercise: Students will participate in mock sessions such as interviewing
       the company IT professionals to learn how the information is stored, participate in meet
       and confer conferences and argue motions directed to specific disputes. The factual basis
       for these exercises will be based on a detailed hypothetical. The students will be divided
       into four teams for purposes of these exercises.

       The classes, which are described more fully in the syllabus, can be summarized as

             Classes 1-2 are primarily background in nature and will examine the legal
       parameters and the technological process of eDiscovery as it has been developed through
       the Federal Rules and associated judicial decisions.

              Classes 3-5 will explore the technical and practical problems presented to clients
       and counsel as they prepare for and respond to eDiscovery and negotiate a defensible
       process with opposing counsel and, if necessary, the court. These sessions will be based
       upon the detailed hypothetical. This will include mock sessions incorporating client
       interviews; identification, collection and preservation of documents; and preparation of
       protective orders.

              Classes 6-8 address specific procedures involving methods by which parties learn
       about the opposing party‟s technical infrastructure (document requests, depositions) and
       negotiations with opposing counsel on various eDiscovery issues.

              Classes 9-11 concern problems of eDiscovery following inability of counsel and
       the client to reach agreement and sanctions for failure to comply with the Rules and risk
       of spoliation as well as related ethical issues and problems relating to privilege.

             Classes 12-13 will focus on ethical issues and privilege.

   Student Evaluations:
   Students will be evaluated on several criteria and a letter grade will be assigned.

      Mid-Term Motion: 25%
      Student Exercises and Discussion: 25%
      The Final Examination: 50%

Class 1.      Introduction: ESI at the Outset
Course Outline (FEB)
Obligations of Counsel/Overview of Discovery Process (WPB)
ESI-the Basics
The EDRM Model and Process (WPB)

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 1-16
The Sedona Conference® Cooperation Proclamation (pp. 1-3)
The Sedona Conference® Case for Cooperation
Review Electronic Discovery Reference Model (“EDRM”)
Baron & Losey, ESI “Movie”:

Optional Pre-Class Reading
George L. Paul and Jason R. Baron, “Information Inflation: Can the Legal System Adapt?” 13
RICH. J. LAW & TECH. 10.

Optional Resource (For entire Course)

The Sedona Conference® Glossary: Commonly Used Terms for E-Discovery and Digital
information Management. Available at
Ralph Losey‟s Blog:
ABA resources:

Class 2.      The Rules of the Road
Sedona Principe #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 the litigation.

Review of the Federal Rules and the Litigation Process Involving ESI (FEB)
Introduction to the Class Hypothetical (FEB)

Pre-Class Reading
Class Hypothetical
The Sedona Principles after the Federal Amendments
Federal Rules of Civil Procedure 16, 26, 34, 37, 45, and 11

Class 3. Preliminary Case Assessment/Getting You and Your
Client Ready

ABA Model Rule 1.1 of Professional Conduct
A lawyer shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the

Sedona Principle # 6
The producing party should determine the best and most reasonable way to locate and produce
relevant information in discovery.

Meeting with Your Client/Understanding the Systems, Costs (FEB)
Record Retention Policies and Plans (FEB)

Student Exercise
Before Class each student will prepare three key questions, based upon the class hypothetical, to
pose and discuss with company inside counsel and the Head of the IT Department. Students will
email questions to the Professors by noon on the day of class.

Team A: Document Retention Policies
Team B: Computer Backup and Destruction Systems
Team C: Email Servers
Team D: Network Servers

Members of Teams A and B will conduct an interview in class.

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 38-42
The Sedona Conference® "Jumpstart Outline," pp. 1-8
The Sedona Conference® Commentary on E-Mail Management: Guidelines for the Selection of
Retention Policy. 1-20

Class 4.       The Case Begins: The Duty to Identify and Preserve
Sedona Principle # 5
The obligation to preserve electronically stored information requires reasonable and good
faith efforts to retain information that may be relevant to pending or threatened litigation.
However, it is unreasonable to expect parties to take every conceivable step to preserve all
potentially relevant electronically stored information.

Student Exercise (First Hour)
Each student will prepare a 1-2 page memorandum to your client, Orange, discussing the purpose
and objective for a litigation hold. A form of litigation hold letter is in the materials. A copy
should be sent to Professors Barter and Butterfield the evening before the class. Members of
Team C and D, representing Orange will meet during class with Professors Barter and
Butterfield who will play the role of Orange employees to explain and answers questions about
the litigation hold process.

Lecture/Discussion (Second Hour)
Trigger Dates (WPB)
Litigation Holds: Polices and Procedures (FEB)

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 11-16, 28-37
The Sedona Conference® Commentary on Legal Holds (1-24)
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
Litigation Hold Illustration

Class 5. Preserving and Collecting Potentially Relevant
Sedona Principle #1 (Proportionality)

The burdens and costs of preservation of potentially relevant information should be weighed
against the potential value and uniqueness of the information when determining the
appropriate scope of preservation.

The emerging concept of “Proportionality” (WPB)
Finding the ESI (Jason Baron)
       Lawyers‟ Use of Search and Retrieval Methodologies
       Key Terms, Concepts and History in Information Retrieval Technology
       Boolean and Beyond: A World of Search Methods, Tools and Techniques
       Practical Guidance in Evaluating the Use of Automated Search And Retrieval Methods
       Future Directions in Search and Retrieval Science
       Metadata: What it is and how it is used

Pre-Class Reading
The Sedona Conference®, Commentary on Proportionality in Electronic Discovery.
The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods (189-223)
The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process
Aguilar v. Immigration & Customs Enforcement Div., 2008 WL 5062700 (S.D.N.Y. Nov. 21,
2008)FRCP 34
The Sedona Conference Commentary on Preservation, Management and Identification of
Sources of Information that are not Reasonably Accessible, available at

Class 6.      Document Discovery
Sedona Principle # 4
Discovery requests for electronically stored information should be as clear as possible, while
responses and objections to discovery should disclose the scope and limits of the production.

Document production: requests, responses and objections; cost shifting (WPB)
Possession, Custody or Control (outsourced databases) (FEB)
Meet and Confer (Rule 26(f)) (WPB)

Student Exercise

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 25-27
Zubulake v. UBS Warburg, LLC, 217, F.R.D. 309 (S.D.N.Y. 2003)
D’Onofrio v. SFX Sports Group, Inc. 247 F.R.D. (D.D.C. 2008)
FRCP 34, 37 (review)

Class 7.        Pre-Trial Meetings and Negotiations
Sedona Principal # 3
Parties shall confer early in discovery 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.

Rule 26(a) Disclosure (FEB)
The Rule 26(f) Conference (WPB)

Student Exercise
All teams will prepare for a meeting with adverse counsel in a „meet and confer” session to cover
the areas specified in Rule 26(f). Teams A and C will represent the plaintiffs and Teams B and D
will represent Orange.

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 21-24
Judge Grimm: “Suggested Protocol for Discovery of Electronically Stored Information” (1-28)
Mancia v. Mayflower Textile Serv. Co., 253 F.R.D. 354 (D. Md. 2008)
FRCP 26(f)

Class 8. Pre-Trial Negotiations (cont’d) and Discovery/ Rule 30
(b)(6) Depositions

Rule 30(b)(6) Deposition Preparation (FEB)

Student Exercise
   1) All teams will conduct the Rule 26(f) conferences for which they prepared during the
      previous class. Following the sessions, in class all teams will prepare a list of agreements
      and disagreements that will have to be decided by the court.
   2) Each Student will draft a Rule 30(b) notice of deposition with attachments during class
      based upon the class hypothetical and will prepare sample questions. All of the students
      will be representing the Plaintiffs for this exercise.

Pre-Class Reading
Malone, The Effective Deposition, pp. 1-20
Heartland Surgical Specialty Hospital v. Midwest Division, Inc. 2007 WL 105427 (D. Kan.

Class 9.     Compelling the Production of
           ESI/Proportionality/Reasonably Accessible
Sedona Principles # 7-9
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
8. The primary source 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.

Lecture (1st Hour)

Proportionality (FEB)
Accessibility (WPB)

Mid-Term Examination (2nd Hour):

A list of issues derived from the class hypothetical will be provided to each student as well as
pairings for oral argument. Members of Team A and B will be assigned to draft a motion to
compel on behalf of plaintiffs, and members of Team C and D will draft a motion for a
protective order on behalf of Orange. Students will continue working on the motions after class
and send their motion papers (by email) to the Professors before Class 10.

The Professors will review the pre-hearing memoranda and hear arguments limited to 6 minutes
per student at Class 10.

Pre-Class/Class Reading
The Sedona Conference® Commentary on Proportionality
The Sedona Principles Addressing Electronic Document Production, pp. 43-50
McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); McPeek II, 212 F.R.D. 33 (D.D.C. 2003)
Victor Stanley v. Creative Pipe, Inc. 250 F.R.D. 251 (D. Md. 2008)
FRCP 26(b) and (c)

Optional Resource
The Sedona Guidelines: Best Practices Addressing Protective Orders, Confidentiality & Public
Access in Civil Cases (March 2007) available at

Class 10. Class Oral Arguments
The Professors will review the pre-hearing memoranda and hear argument limited to 6 minutes

per student. All of the students will come to the class. Each student will present their arguments
to the Professors. Students not making arguments will wait outside of the classroom.

Class 11. Spoliation and Sanctions

Sedona Principles # 14
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 evidence has
materially prejudiced the adverse party.

Structure of “Deleted” Information and Computer Forensics
Sanctioning a Party and Opposing Counsel (WPB)

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 70-73
Pension Committee of the University of Montreal v. Banc of America, 05 Civ. 9016 (S.D.N.Y.)
1/11/2010 (1-89)
Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. 2008); Order of April 2, 2010
Orbit One Communications v. Numerex, 2010 WL 4615547 (S.D.N.Y. 2010)
Optional Reading
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)
Southern New England Tel. v. Global NAPS, 2010 WL 3330329 (2d Cir., Aug. 25, 2010)
Rimkus Consulting Group, Inc. V. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)
Harkabi v. SanDisk Corp., 2010 WL 3377338 (S.D.N.Y. Aug. 23, 2010)
D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)
FRCP 37 and 11 (review)

Class 12. Ethical Issues

Inadvertent Disclosures (including metadata) (FEB)
Duty of Candor, Competence, and Fairness (WPB)

Pre-Class Reading
Williams v. Sprint/United Management Co., 2006 WL 1867478 (D. Kan. 2006).
ABA Model Rules of Professional Conduct 1.1,1.16, 3.3, 3.4(a), & 5.1

Qualcom Inc. v. Broadcom Corp., see Class 11 Reading
Jason R. Baron, “E-discovery and the Problem of Asymmetric Knowledge,” Presentation at the
Mercer Law School Ethics in the Digital Age Symposium, November 7, 2008, available at:

Class 13. Protecting or Attacking Privilege

Sedona Principal # 10
A responding party should follow reasonable procedures to protect privileges and objections in
connection with the production of electronically stored information.

Waiver (WPB)
Agreements Between Counsel (WPB)
Preparation of Privilege Log (FEB)

Class Exercise
Class will discuss the various provisions that should be part of any protective order concerning
the inadvertent disclosure of privileged documents.

Pre-Class Reading
The Sedona Principles Addressing Electronic Document Production, pp. 51-56
Sedona, The Protective Order Toolkit: Protecting Privilege with Federal Rule of Evidence 502,
   pp. 1-17
Hopson v. The Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005 )
Federal Rule of Evidence 502

Optional Reading:
Jonathan Yeh, “Clawback Agreements in the Wake of FRE 502,” available at:

Class 14.
Emerging ESI Issues and “Ask the Experts”

Pre-Class Reading
Materials to be distributed at Class 13


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