Discovery Presentation Mass Gov by dominic.cecilia

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									     Developments in E-Discovery


     Rosemary Connelly, Attorney General’s Office, Trial Division Chief
      Linda Hamel, General Counsel, Information Technology Division
 Alan Cote, First Deputy Secretary of the Commonwealth and Supervisor of
       Public Records, Office of the Secretary of the Commonwealth
Stephanie Zierten, Deputy General Counsel, Information Technology Division
   Jenny Hedderman, Deputy General Counsel, Office of the Comptroller
     Greg Massing, General Counsel, Executive Office of Public Safety
                                               Electronic Discovery Training, October 2, 2007
              Today’s Agenda
•   Welcome and Introductions: Stephanie Zierten
•   Overview of Rule Changes: Rosemary Connolly
•   Electronically Stored Information: Linda Hamel
•   Records in Common Schedule (RIC): Alan Cote
•   Guidelines for Implementation: Stephanie Zierten
•   Fiscal Impact: Jenny Hedderman
•   Mock Meeting: Greg Massing
•   Wrap up and questions: all


                                  Electronic Discovery Training, October 2, 2007
   OVERVIEW OF
E DISCOVERY IN THE
FEDERAL AND STATE
      COURTS

        VS.



              Electronic Discovery Training, October 2, 2007
                 The Lingo
•   What is ESI?
•   It is “electronically stored information”
•   What are some examples of ESI?
•   Emails, web pages, word processing files,
    flash drives or data stored on computer
    drives.




                              Electronic Discovery Training, October 2, 2007
       DISCOVERY IN 2007
• Parties have always been permitted to
  request documents stored in an electronic
  format - that’s not new.
• What is new are the 2006 Amendments to
  the Federal Rules of Civil Procedure,
  specifically the following rules:
   – 16 Pretrial and scheduling conference
   – 26 General Discovery provisions
   – 33 Interrogatories to parties
   – 34 Document Production
   – 37 Sanctions; and
   – 45 Subpoenas
                            Electronic Discovery Training, October 2, 2007
 DISCOVERY IN 2007 (continued)
• Federal Local Rule 26.5 defines
  “document” to have a meaning that is:
  – “synonymous to the usage of that word in
    Fed.R.Civ.P. 34(a)” and that states:
    “documents or electronically stored information
    including … sound recordings images and
    other data or data compilations stored in any
    medium from which information can be
    obtained – translated, if necessary, by
    respondent into reasonably usable form…”

                                Electronic Discovery Training, October 2, 2007
DISCOVERY IN 2007(continued)
• State Court – parties define the terms
  including the term “document” but most
  parties define it broadly enough to include
  ESI.
                       And
• State uniform definitions are likely to be
  implemented in the near term and those are
  likely to be modeled after the Federal
  definitions.

                            Electronic Discovery Training, October 2, 2007
What is required of parties under the
     amended Federal Rules?
1. Send a “litigation   Tip - Know where to look
  hold” letter when       for ESI and who the
  litigation is           holders of relevant ESI
  reasonably clear.       are so you can get the
                          “hold” broadcast out to
  Agency counsel must     IT and the people who
  send the litigation     need to know.
  hold letter to ensure   Document this step!
  that documents are
  preserved.
                               Electronic Discovery Training, October 2, 2007
     WHAT TO DO (continued)
2. Plan for disclosure of    • Tip – get ahead of the
   ESI as part of the          curve, take time now to
   litigation plan with your   talk with your IT and
   AAG. Discuss what           ITD so you are familiar
   format your IT can make     with what is and isn’t
   the documents accessible    desirable when your
   in and discuss what         agency is faced with an
   format you want the other ESI production – what
   parties to produce their    format can we produce
   data so it can be           ESI in? What precautions
   translated. See eg Rule     the agency take to protect
   16 Conference and Auto      the privacy of individuals
   Disclosure.                 and comply with FIPA?

                                    Electronic Discovery Training, October 2, 2007
     WHAT TO DO (Continued)
• Know that there are two      • Tip- Because state agencies
  limitations on discovery       are required to keep
  of ESI:                        documents in accordance with
                                 the state document retention
   – 1. ESI not reasonably       schedules - as a practical
     accessible because of       matter - there may be a
     undue burden or cost        presumption that the agency
     Fed. R. Civ. P.             has all required documents
     26(3)(b)(2)(B)              whether they were created or
                                 stored in an electronic format
   Or                            or not. These two “safe
   – 2. if ESI is lost as a      harbors” may not offer as
     “result of the routine,     much shelter to public
                                 agencies.
     good-faith operation
     of an ESI
                                       Electronic Discovery Training, October 2, 2007
                But what if …
1. an ESI, like a document, is lost?
   – Unless it was the result of a routine, good faith,
     operation of the computer system then there may be
     adverse consequences in your litigation.
   – Fed. R. Civ. P. 37 permits the imposition of a variety of
     sanctions for failing to comply with discovery. See
     Fed. R.37(b)(2) (A) – (E) . At the least there may be an
     adverse inference against the agency - ie that the
     evidence lost was harmful to the agency’s position – as
     a sanction for failing to produce an ESI that, according
     to the records retention schedule, it should have
     maintained.



                                       Electronic Discovery Training, October 2, 2007
                        or
2. If the ESI would be too burdensome or
  costly to produce?
  – Fed. R. Civ. P. 26(3)(b)(2)(B) states that the
    party opposing the production on the these
    grounds bears the burden of such and if that
    showing is made then only if the court finds
    “good cause” may it order the production and
    may specify the conditions (ie shifting the cost
    of production onto the party making the
    request)

                                  Electronic Discovery Training, October 2, 2007
                            or
3. If my agency isn’t a party, must it respond to a
  subpoena duces tecum seeking ESI?
   Yes, Fed. R. Civ. P. 45 operates the same whether a
    party is seeking old fashion paper documents or ESI.
   But, remember you still have 14 days after service of
    subpoena to serve written objections and then the
    burden shifts to the moving party to obtain an order to
    compel the production. Fed. R. Civ. P. 45(c)(1)(B).
   And, if the subpoena does not specify the form for
    producing the ESI then you may produce it in the form
    in which it is ordinarily maintained. Fed. R. Civ. P.
    45(d)(A) & (B).




                                       Electronic Discovery Training, October 2, 2007
By now you might be thinking you need this:




                            Electronic Discovery Training, October 2, 2007
        IT’S NOT SO BAD…
• Agency counsel in conjunction with the agency’s
  IT Department and together with counsel at the
  AG’s Office will serve their respective roles to
  ensure that the agency meets its discovery
  obligations in its litigation.


• Getting it done right is everyone’s
  responsibility!


                                 Electronic Discovery Training, October 2, 2007
            E-Discovery


What Is “Electronically Stored Information”
under the Federal Rules of Civil Procedure,
and Where Should Agency Lawyers and
CIOs Responding to Discovery Requests
Look for It?



                           Electronic Discovery Training, October 2, 2007
Electronically Stored Information
        (ESI): What is It?
FRCP Rule 34 Production of Documents, Electronically
Stored Information, and Things…Any party may serve on
any other party a request (1) to produce and permit the
party making the request, or someone acting on the
requestor’s behalf, to inspect, copy, test or sample any
designated documents or electronically stored
information-including writings, drawings, graphs,
charts, photographs, sound recordings, images, and
other data or data compilations stored in any medium
from which information can be obtained-translated, if
necessary, by the respondent into reasonably usable
form- or to inspect, copy, test or sample any designated
tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession,
custody or control of the party upon whom the request is
served . . .

                                    Electronic Discovery Training, October 2, 2007
          ESI: What is It? (cont.)
• Committee Notes on Rule 34
   – ESI may exist in dynamic databases and other forms far different
     from fixed expression on paper
   – The wide variety of computer systems currently in use, and the
     rapidity of technological change, counsel against a limiting or
     precise definition of electronically stored information
   – Rule 34(a) (1) is expansive and includes any type of information
     that is stored electronically.
   – ESI includes information “stored in any medium” to encompass
     future developments in computer technology….[]it] is intended to
     be broad enough to cover all current types of computer based
     information, and flexible enough to encompass future changes
     and developments.
   – References elsewhere in the rules to ESI should be understood to
     invoke this expansive approach.


                                            Electronic Discovery Training, October 2, 2007
        ESI: What Is It (cont.)
• Content, media, storage, special data
  considerations, location
• Reasonably Accessible




                             Electronic Discovery Training, October 2, 2007
     Examples of ESI Content
• System output
• System data (when users log on, websites
  visited, passwords used, docs printed or
  faxed)
• Office documents (ex: Word, Powerpoint,
  Excel)
• Photos
• Maps
• Movies

                           Electronic Discovery Training, October 2, 2007
           ESI Content (cont.)
• Electronic calendars and to do lists generated by
  MS Outlook and other desktop software
• IM records
• Backup and archival data
• Databases
• Text messages
• Web page content
• Email content; email attachment content
• Deleted documents and other deleted data*
• Voicemail

                                 Electronic Discovery Training, October 2, 2007
Examples of ESI Media and Storage
             Devices
•   Emails and their attachments
•   Web pages, old and new
•   Videos
•   Floppy disks
•   CDs
•   Audiotape
•   Videotape


                              Electronic Discovery Training, October 2, 2007
       ESI: Examples of Media and
             Storage Devices
•   Microfilm/Fiche
•   Data storage Tapes
•   Hard drives
•   Servers (web, application, FTP)
•   Digital film
•   Thumb drives
•   Memory cards


                              Electronic Discovery Training, October 2, 2007
ESI Special Data Considerations
• Deleted data is not necessarily deleted
• Embedded data (draft language, editorial
  comments, e.g. Track Changes data)
• Metadata (data about the history, tracking
  or management of an electronic file, e.g.
  email wrapper)
• End user search tools that create store of
  docs accessed (Google Desktop search)


                             Electronic Discovery Training, October 2, 2007
    Examples of ESI Locations
• Individual employee, contractor or agent of
  agency:
  – Hard drive of PC or laptop in central office, remote
    location, or home for telecommuters, for all kinds of
    documents
     • See especially PC hard drive or shared drive storage for
       emails offloaded from email system (.pst files)
  – Centralized email and other central system servers
  – Network servers containing shared drives
  – CDs, floppy disks in any location where
    employee/contractor works
  – USB drives—hard and thumb or flash drives
  – PDAs----anywhere


                                           Electronic Discovery Training, October 2, 2007
Examples of ESI Locations (cont.)
– Files stored on individual or network drives
– Servers of public email providers used by state
  employees at work—Google, hotmail
– Servers on site or at remote host
– Equipment in storage area awaiting disposal
– Backup tapes onsite or offsite
  • Made before upgrades
  • Made for disaster recovery
  • Made routinely


                                 Electronic Discovery Training, October 2, 2007
         ESI Locations, cont.
– Cell phones (text messages, phone numbers)
  and Personal Digital Assistants (PDAs) carried
  on the person
  •   Blackberry (can cache email)
  •   Treo (can cache email)
  •   Palm Pilot
  •   “Q”




                                     Electronic Discovery Training, October 2, 2007
        ESI Locations (cont.):
       Third Party Data Holders
• External mail services:
  – Gmail (Google)
  – Hotmail (MSN)
  – Yahoo! mail
• Long term storage
  – Iron Mountain
  – State archives
• Disaster Recovery Contractor
  – For some systems, tapes shipped out
    periodically for storage (e.g. SunGuard)

                                 Electronic Discovery Training, October 2, 2007
  ESI: “Reasonably Accessible”
• Basic rule: A party need not provide discovery of
  ESI from sources that the party identifies as not
  reasonably accessible because of undue burden
  or cost. Party from whom discovery is sought
  must show that the ESI is not reasonably
  accessible because of undue burden or cost.
  FRCP 26(b)(2)(B). Committee Note: UBC in light
  of cost of searching, retrieving and producing.
• However, even after finding that ESI is not
  reasonably accessible, court may order discovery
  from such sources upon a showing of good
  cause. FRCP 26(b)(2)(B).

                                 Electronic Discovery Training, October 2, 2007
 ESRI: “Reasonably Accessible”
• Committee Notes: Courts must apply
  following test in determining whether to
  require production of ESI:
  – Is it RA?
  – If not RA, is there good cause for requiring
    production?




                                 Electronic Discovery Training, October 2, 2007
   ESI: Reasonably Accessible
• FRCP 26(b)(2)(B) Committee Note:
  – Reasonably Accessible rule designed to address
    issues raised by difficulties in locating, retrieving, and
    providing discovery of some ESI.
  – Some sources of ESI can be accessed only with
    substantial burden and cost. In a particular case, these
    burdens and costs may make the information not
    reasonably accessible.
  – Identification of ESI does not relieve party of obligation
    to preserve evidence.
  – Requesting party may need discovery (sampling,
    inspection, taking depositions) to determine whether
    the ESI they seek is in fact not reasonably accessible.

                                       Electronic Discovery Training, October 2, 2007
   ESI: Reasonably Accessible
• Reasonably accessible data is “active”,
  purposely stored, and available for use by
  end users.




                             Electronic Discovery Training, October 2, 2007
    ESI: Reasonably Accessible
• Data that is not reasonably accessible cannot be easily
  accessed by the end user and may include
   – data stored on backup tapes or legacy systems that are not
     indexed, organized, or susceptible to electronic search
   – material that has been deleted and remains but in fragmented
     form, requiring computer forensics to restore
   – Data created, used and stored in electronic media no longer in use
     (8 track tapes, Wang)
   – Enormous volume
   – Legacy data that remains from obsolete systems and is
     unintelligible on the successor system
   – Databases designed to present certain information in certain ways
     and that cannot readily create very different kinds or forms of
     information


                                             Electronic Discovery Training, October 2, 2007
   ESI: Reasonably Accessible
• Zubalake v, UBS Warbug, 217 F.R.D. 309,
  2003 U.S. Dist. LEXIS 7939, 55 Fed. R.
  Srv. 3d 622
  – Decision is pre-FRCP amendment, but
    cornerstone e-discovery case
  – 5 point continuum for evaluating “accessible”
    vs. “inaccessible”
  – Touch point for later pre-rules change cases
  – Likely to be considered post rules change


                                Electronic Discovery Training, October 2, 2007
   ESI: Reasonably Accessible
• Accessible:
  – Active, online data. Magnetic disk. Active stage
    of records life, when records created, received,
    processed. Access frequency is high, access
    speeds fast (milliseconds)
  – Near-line data. Robotic storage device (robotic
    library) housing removable media. Access
    speeds from millisecond up to 10 to 30
    seconds, 20 to 120 seconds for sequentially
    searched media like mag tape.

                                 Electronic Discovery Training, October 2, 2007
    ESI: Reasonably Accessible
• Inaccessible:
   – Offline storage/archives. Removable optical disk or mag tape,
     labeled and stored in shelf or rack. Used for DR and archival
     records; likelihood of retrieval is minimal. Manual retrieval. Access:
     minutes, hours, days.
   – Backup tapes. Sequential access device; must read any particular
     block of data by reading all preceding blocks. Data not organized
     for retrieval of individual docs or files. Data compression makes
     restoration more time consuming and expensive
   – Erased, fragmented, or damaged data. Fragmentation: As files are
     erased, contiguous clusters of data are made available as free
     space; large, newly created files may be broken up and randomly
     placed throughout the disk. Also, damaged and erased data. In all
     3 cases, can only access after significant processing.




                                               Electronic Discovery Training, October 2, 2007
ESI: Not Reasonably Accessible but
  Must be Produced Nonetheless
• If the court orders ESI that is not
  reasonably accessible to be produced,
  agencies may have to rely on:
  – ITD to provide backup tapes for ITC-hosted
    applications or MassMail
  – Other systems administrators for backup tapes
  – Local LAN team to help sort through local
    MassMail archive
  – Computer forensics consultants


                               Electronic Discovery Training, October 2, 2007
     ESI: Computer Forensics
• Computer forensics can give agencies
  access to
  – data remanence, residual physical
    representation of data that has been in some
    way erased
    • Deletion removes only pointers to the directory
      system, not the deleted document itself
  – Data on media that is damaged, has failed, or
    become corrupted


                                    Electronic Discovery Training, October 2, 2007
     ESI: Computer Forensics
• Tools available for taking snapshot of data
  on particular day:
  – Imaging hard drives of desktop, server, laptop
    or media storage devices
  – Data analysis




                                Electronic Discovery Training, October 2, 2007
      ESI: Computer Forensics
• Tools available for data recovery
  – Physical damage:
     • Hardware repair
     • Disk imaging (extracting the raw image on a disk and
       reconstructing usable data after repair of logical damage)
  – Logical damage (damage to file system that prevents it
    from being mounted by the host operating system)
     • Consistency checking
     • Rebuilding the file system from scratch, after studying
       organization of original files
  – Deleted data
     • Specialized software

                                            Electronic Discovery Training, October 2, 2007
     ESI: Computer Forensics
• For prospective document freeze,
  “journaling” incoming and outgoing emails.




                             Electronic Discovery Training, October 2, 2007
ESI: Computer Forensics



$$$$$$$$$$$$$$$$$$$$$$$$$$$$$




                   Electronic Discovery Training, October 2, 2007
     ESI: Who Knows Where it is
              Stored?
• The agency employees, contractors or agents
  whose documents are subject to discovery
  – Agencies have certain contractual rights under the
    Commonwealth’s T’s and C’s to the documents created
    by vendors in fulfilling their contractual obligations
• Your CIO or Systems Administrator
• Business owners of the data
• None of the above alone; e-records and e-
  devices are not 100% centrally controlled or
  managed in any organization

                                    Electronic Discovery Training, October 2, 2007
 ESI: Who knows where? (cont.)
• Data center host
• Webmaster
  – Current web pages
  – Archived pages




                        Electronic Discovery Training, October 2, 2007
 ESI: Who knows where? (cont.)
• Administrator of agency system
• Administrators of ANF centrically
  administered systems
  – HRCMS
  – NewMMARS
  – NewMMIS
  – MassMail



                             Electronic Discovery Training, October 2, 2007
ESI: Who knows where it is stored?
• Do not limit your inquire to CIO; he or
  she may not necessarily know:
  – Whether employees are using HotMail or home
    email addresses to conduct state business
  – Whether they have copied emails to .pst files
    before deleting them
  – Whether they download Commonwealth
    documents to their home PC, handheld or
    other personal device
  – Answers to questions about systems
    administered at the enterprise level

                               Electronic Discovery Training, October 2, 2007
            ESI: Conclusion
• Move from paper to electronic discovery has
  decentralized discoverable material and the
  persons who control it. Control over access and
  knowledge often in hands of user instead of
  central agency authority
• Start by developing an ESI map taking into
  account people, data, devices, and locations.
• Do not under any circumstances rely on your CIO
  and ITD alone to determine what discoverable
  ESI your agency’s employees and contractors
  may control

                               Electronic Discovery Training, October 2, 2007
               Linda Hamel
             General Counsel
                   ITD
             (617)-626-4404
        Linda.hamel@state.ma.us
Thanks to ITD Legal Intern Sean Kass, HLS
                     ‘08


                          Electronic Discovery Training, October 2, 2007
   Supervisor of Public Records;
   Records In Common Schedule



http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm




                                Electronic Discovery Training, October 2, 2007
Guidelines for Agencies




               Electronic Discovery Training, October 2, 2007
           Actually doing it
• Preparing for E-Discovery
• Records retention program implementation
• Litigation/Claim response checklist




                           Electronic Discovery Training, October 2, 2007
        Preparing for E-Discovery
• Assemble the team
   –   Secretary or agency head
   –   CIO
   –   Key IT people (who will be Agency’s Fed. R. Civ. P. 30(b)(6) witness?)
   –   Records Managers
   –   Legal Counsel
• Inventory records
   – Identify hardware/software that contains records (version, how stored)
   – Perform an application inventory (e.g. HRCMS, office applications)
   – Storage formats for backup data
        • Where are they located?
        • How segregated (by record, individual, dept.)?
        • Frequency of tape recycle?
   – Consider off-site records (e.g. vendors, home computers)
   – Document results

                                                  Electronic Discovery Training, October 2, 2007
    Preparing for E-Discovery
• Categorize which records to keep and for
  how long
  – Legal requirements
  – Financial requirements
  – Operational requirements
  – Operational baseline: what is the longest
    record you need to keep?




                                Electronic Discovery Training, October 2, 2007
       Preparing for E-Discovery
• Consider other legal obligations (in addition to RIC)
   – Statutes relevant to the agency’s mission or roles
       • Health Insurance Portability Accountability Act of 1996 (HIPAA)
           – 42 U.S.C. § 1320d: Standards for information transactions and data
             elements
           – See e.g.
                » CFR §164.520: document and retention re: fulfillment of notice
                  obligations
                » CFR § 164.524: document record sets that may be accessed by
                  individuals
                » CFR §164.530(j)(1): document retention requirements for
                  administration
                » CFR §164.528: accounting of disclosures made
                » CFR §164.508: document and retention re: signed authorization
   – Federal or state law governing administrative functions
       • Immigration Reform and Control Act: Maintenance of I-9 forms
       • Federal Fair Labor Standards Act (FLSA)
       • Family and Medical leave Act (FMLA)
   – Pending litigation
   – Threatened claims
                                                    Electronic Discovery Training, October 2, 2007
    Preparing for E-Discovery
• Beyond compliance, think offensively
  – What documents may become relevant and
    useful (e.g. contract correspondence,
    service/call logs)
• How will you modify or suspend deletion
  when necessary?
  – How long does it take to stop recycling backup
    tapes, and who should be notified?
  – How quickly can you capture the records of key
    players (what IT resources do you need)?
                               Electronic Discovery Training, October 2, 2007
  Preparing for E-Discovery
– How quickly can you take a snapshot of email
  or other information?
  • Consider:
     – 4th Amendment implications
     – State and Federal wire tap statutes
     – Does agency have a recently signed copy of an
       Acceptable Use Policy for every IT user?
– Develop a means to notify appropriate
  personnel when a claim is raised (agency
  counsel, IT personnel)


                                     Electronic Discovery Training, October 2, 2007
      Implementation of Records
            Management
• Train staff
  – Alert staff to obligations (RIC and other
    relevant record retention obligations)
  – If possible combine document retention training
    with business writing training
     • Employees should not say in email anything they
       would not want produced as public record
  – Educate employees on general discovery
    duties in litigation
  – Identify records custodian for each unit

                                    Electronic Discovery Training, October 2, 2007
    Implementation (continued)
• Compliance review
  – Have team in place (IT, legal, senior management)
  – Test un-recycled backup tapes to ensure they are
    recoverable
  – Consider requiring managers to certify that the policy is
    being followed
  – Annual review clean up days
     • Pizza, prizes etc., casual clothing
     • Reminders to review home computers, PDAs
  – Document compliance
  – Document retention compliance discussion becomes
    part of exit interview

                                       Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
 Triggering Events:
   -   Demand form opposing party is receive
   -   Law suit served
   -   Court issues preservation order
   -   Litigation is “reasonably foreseeable”
 Triage
   – Assemble a response team with at least the following:
        • one IT person
        • one attorney; and
        • one subject matter expert (e.g. HR in employment case)
   – Review relevant rules (any special requirements depending on
     jurisdiction?)
   – Analyze claims to determine
        • Subject matter of dispute
        • Key players and departments involved
        • Relevant time period (are potential relevant documents still being
          created or likely to be created?)

                                                   Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
Scope of ESI to Preserve
  – Relevant
  – Reasonably calculated to lead to discovery of
    admissible evidence
  – Reasonably likely to be requested in discovery
Identify what systems/devices are most likely to
 contain data
  – Confirm frequency and retention of backups for
    those systems
  – Identify which are accessible to key
    players and which are not

                                Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
 Develop your litigation response plan
   – Designate those responsible for implementation and follow-up
   – Identify potential Fed. R. Civ. Proc. 30(b)(6) witness
   – Decide whether to suspend current retention policy (re: destruction
     of documents)
       • e.g. backup tapes with “key player” documents may need to be
         retained
   – Decide whether to establish separate servers to capture relevant
     data
   – Decide whether to segregate relevant electronic documents so
     that current users/custodians cannot alter or delete them
   – Record decision and rationale (this is crucial in defending your
     decisions and actions later)



                                                Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
Implement response plan
  – Orally notify affected persons (both inside and outside
    agency)
  – Issue litigation hold
     • Instructions should come from counsel
     • Identify point person to answer questions
     • Describe claims with enough specificity so that individuals will
       know how to respond
     • Describe categories of records to be preserved/nature of
       materials likely to be relevant
     • Provide dates of preservation if possible
     • You could have separate holds for IT personnel (e.g. save all
       backup tapes) versus key personnel in litigation.
  – When necessary, plan for segregation of server space
    to capture data
  – Monitor to ensure litigation hold has commenced
     • Seek certification that backups and other forms of relevant
       data are being retained              Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
Refine response plan
  – Survey key players (what hardware do they have etc.,
    anything that response team didn’t know about)
  – Through analysis of claims and in consultation with
    outside counsel first (if any) and opposing counsel
    (Rule 26(f) conference) address the following
    production issues:
     • Emails in electronic form?
     • Produce or save voicemails?
     • Mirror any hard drives?
     • Produce all versions of documents (paper and electronic, MS
       Word and Word Perfect)?
     • Extract metadata?
     • Produce calendars?
  – Estimate costs

                                          Electronic Discovery Training, October 2, 2007
Litigation/Claim Response Checklist
Follow up
  – Issue periodic reminders/refreshers to key
    players
  – Remind departing employees about any
    continuing obligations
  – Notify all persons as needed when litigation
    hold is lifted.




                                 Electronic Discovery Training, October 2, 2007
FISCAL IMPLICATIONS OF
     E-DISCOVERY
        Jenny Hedderman
     Deputy General Counsel
  OFFICE OF THE COMPTROLLER
   Are we having fun yet?
“Many respondents find that dealing with the
  IRS is the only activity more unpleasant
  than dealing with e-discovery demand, and
  more than half would rather have a cavity
  filled by a dentist than deal with an e-
  discovery request.”
           www.news.com/2102-1014_3-6193510.html?tag=st.util.print




                                       Electronic Discovery Training, October 2, 2007
     E-RECORDS REPLACING PAPER

• Technology improvements have shifted % of
  paper vs. electronic documents.
• The ease, perceived informality and speed of
  Email has substantially increased the number of
  “documents” created which are subject to
  discovery (average person receives more than 98
  emails per day)
• Employees who previously worked solely by
  telephone or paper, now work electronically
• Business processes have replaced manual
  processes with vast increases in efficiencies


                               Electronic Discovery Training, October 2, 2007
  Technology has been the Hare
 Records Management the Tortoise
• Businesses have invested in Technology to
  improve efficiency, cut costs and increase
  profits or service delivery.
• Most businesses do not yet have an
  Enterprise-wide Records Management
  Inventory or Policy (no central place that ids
  all paper and electronic records)



                              Electronic Discovery Training, October 2, 2007
  Technology has been the Hare
 Records Management the Tortoise
• Records management policies have not
  been updated to accommodate e-records
• Records management duties have
  traditionally been relegated to lower level
  staff with little to no input from legal or
  upper management
• Businesses that do have policies do not
  consistently follow the practices


                              Electronic Discovery Training, October 2, 2007
              BIGGEST RISK
      Lack of Enterprise Wide Records
           Management Practice
• Executives, managers and staff are not
  properly trained on implication of the
  records they create
• Don’t realize that these records may need
  to be retained or are discoverable in
  litigation



                            Electronic Discovery Training, October 2, 2007
               BIGGEST RISK
       Lack of Enterprise Wide Records
            Management Practice
• Many don’t know that emails can be used as
  evidence
• Staff or systems may routinely delete emails or
  other records when space becomes limited
• IT staff are not trained in records management
  requirements and may inadvertently delete
  records to free up space



                                 Electronic Discovery Training, October 2, 2007
      Who Cares?
Records Management has not
  been considered a critical
  business process priority,

         until now.



                  Electronic Discovery Training, October 2, 2007
            IT’S NOT MY JOB!
         I’ve got enough to do!
•   Executives focus on overall mandates
•   Managers focus on critical outputs
•   Lawyers focus on legal issues
•   IT staff focus on IT
•   HR focus on employment issues
•   Fiscal focuses on fiscal issues
•   Staff focus on achieving metrics


                              Electronic Discovery Training, October 2, 2007
  E-DISCOVERY
WHOSE JOB IS IT???




            Electronic Discovery Training, October 2, 2007
Electronic Discovery Training, October 2, 2007
              IGNORANCE BY ATTORNEYS
              IS NO LONGER ACCEPTABLE
• “Ignorance of IT is simply no longer an acceptable
  cover for mistakes in most federal courts.”
   www.ralphlosey.wordpress.com/zubu-duty/

• Courts reject attorney excuses of “computer
  illiteracy” as “frankly ludicrous”. Martin v. Northwester mutual Life
   Insurance Company, 2006 WL 148991 (M.D. Fla. Jan 19, 2006).

• “Attorneys can no longer blame their knowledge
  gap on lack of guidance from the courts… E-
  discovery conduct has been sanctioned in all 12
  federal jurisdictions.” www.abanet.org/lpm/lpt/articles/tch02052.html


                                                                 Electronic Discovery Training, October 2, 2007
       What’s the risk??
• Courts have low tolerance for E-Discovery
  failures
• Courts readily assess sanctions against Litigants
  AND Counsel for E-Discovery abuses
• Courts view attorneys as responsible for knowing
  their clients business and systems
• Courts are mandating that litigants recover or
  make records accessible, sometimes at costs
  greater than the value of the litigation


                                 Electronic Discovery Training, October 2, 2007
      Most Common E-Discovery
           Abuses or Errors
• Failing to place holds on destruction routines
  when litigation expected
• Failing to notify court of e-discover problems
• Failing to provide accurate records
• Failing to fully respond to discovery requests with
  all requested records
• “Purposeful sluggishness” in responding
• Fabricated evidence
                   www.abanet.org/lpm/lpt/articles/tch02052.html



                                      Electronic Discovery Training, October 2, 2007
Where’s the money?

“While the costs of complying with
 e-discovery can be expensive, the
  consequences of noncompliance
         can be far worse.”
                 www.itcinstitute.com/display.aspx?id=4057




                          Electronic Discovery Training, October 2, 2007
 Significant Costs for BOTH Client
and Counsel if E-Discovery Failure

  Clients and counsel who fail to focus
  sufficient attention on preservation and
 production of relevant ESI (electronically
  stored information) face the risk severe
      sanctions even if destruction or
     inaccessibility was unintentional.
                      www.itcinstitute.com/display.aspx?id=4057




                               Electronic Discovery Training, October 2, 2007
          Types of Sanctions
• $29M verdict – court imposed adverse jury
  instruction that juries could presume deleted
  emails were detrimental to defendant.
• $2.75M in monetary sanctions for deletion of
  relevant emails and failure to follow its own E-
  Discovery policies.
• Court imposed sanctions and attorney fees for
  failure to instruct defendant of its obligations
• Default judgment against defendant when
  shown that defendant willfully destroyed records

                                Electronic Discovery Training, October 2, 2007
WHO PAYS?




      Electronic Discovery Training, October 2, 2007
  SANCTIONS ARE NEW COSTS
• Abuse of E-Discovery rules will subject departments and
  the Commonwealth to new types of significant costs for:
   – Monetary sanctions
   – adverse claims
   – awarded attorneys fees
   – legal representation costs (Indemnification) for employees who
     have failed E-Discovery obligations, including agency counsel
   – Mandated payment of other side’s costs for obtaining or reviewing
     records
   – Mandated costs of new systems, software, forensic experts to
     locate, access or restore required records
   – Expert witnesses to testify related to systems, storage and records
     retention


                                             Electronic Discovery Training, October 2, 2007
          OTHER COSTS
• Departments who are not prepared for
  litigation holds and e-discovery:
  – are forced to scramble to meet time constraints
  – staff time reduced for programs and services and
    reallocated to locating and producing records
  – increased costs for overtime
  – disruption of department operations
  – increased staff stress and reduced morale
  – increased system costs, software and hardware to
    comply with discovery
  – Public embarrassment for publicity for failures or
    sanctions (great press item – lousy for business)


                                     Electronic Discovery Training, October 2, 2007
 FUNDING FOR SANCTIONS?
• Legislative funding is limited for Commonwealth
  claims for both torts and non-torts.
• Traditionally, non-tort claims have not been
  charged back to departments, but are allowed by
  statute
• Departments that intentionally or negligently fail to
  comply may be required to use current operating
  funds to pay for sanctions or may be subject to
  chargeback
• Departments with significant sanctions may be
  required to seek separate appropriation to cover
  costs

                                   Electronic Discovery Training, October 2, 2007
Electronic Discovery Training, October 2, 2007
    What’s in it for me?
• Compliance is mandatory. It is not a question of if your
  Department will have a litigation hold, but when
• Pre-planning now will prevent significant costs to your
  Department later
• Improved records management process results in greater
  efficiency, better business processing and internal
  communication in most other areas
• Significant effort to improve records management process
  shows good faith attempt to comply, which may lesson
  potential sanctions.




                                     Electronic Discovery Training, October 2, 2007
    ACCESS RESOURCE NEEDS
    NOW FOR FY’08 and FY’09
• Legal and IT staff are in best position to push E-
  Discovery as a priority
• Legal and IT staff have opportunity for knowledge
  transfer
   – What are the Records Management requirements?
   – Do current systems and processed meet
     requirements?
   – What is needed to align systems and process to meet
     requirements?
• Legal, IT and Fiscal and budget staff should
  identify potential fiscal resources necessary for
  compliance

                                    Electronic Discovery Training, October 2, 2007
   ACCESS RESOURCE NEEDS
   NOW FOR FY’08 and FY’09
• Identify current year funds not yet allocated that
  can be set aside for personnel, IT or other current
  fiscal year compliance costs
• Develop budget for future resources need to fully
  comply with E-discovery and solid records
  management policy and include as part of
  HOUSE 1 for FY’09 or as part of IT Bond fund
  proposal
• Notify ANF, CTR, ITD, AGO if significant E-
  Discovery compliance issues


                                  Electronic Discovery Training, October 2, 2007
         Records Management and
  E-Discovery Are Enterprise Responsibility

• Records Management MUST be
  Department priority
• Rules require coordinated effort from
  Legal, IT, Fiscal, Executive, Managers
  and staff
• Records Custodian must be high level
  role who can coordinate all internal
  efforts

                             Electronic Discovery Training, October 2, 2007
          Records Management and
  E-Discovery Are Enterprise Responsibility

• Systems, processes and day-to-day
  activity must be aligned to support
  Records Management policies
• Staff must be trained on their Records
  Management Responsibilities
  – Email use, retention and disposal are one
    of Department’s biggest risk areas


                             Electronic Discovery Training, October 2, 2007
         Records Management and
  E-Discovery Are Enterprise Responsibility

• Records Management duties should be
  added to EPRS and ACES duties and
  performance reviewed annually
• IT purchases, procurements and system
  designs must support Records
  Management retention AND accessibility
  requirements



                             Electronic Discovery Training, October 2, 2007
          Records Management
          On-Going Compliance
• Records Management Policies and
  Inventories must be updated as new IT
  systems are procured and implemented
• Staff must be retrained on updates as these
  occur, and periodically to remind of
  responsibilities
• Department MUST CONSISTENTLY
  FOLLOW Records Management Policies


                            Electronic Discovery Training, October 2, 2007
What you will look like then if you
        don’t act now!




                      Electronic Discovery Training, October 2, 2007
              Some Resources
• http://www.thesedonaconference.org/content/miscFiles/pu
  blications_html
• http://www.law.com/jsp/legaltechnology/eDiscoveryRoadm
  ap.jsp
• http://setecinvestigations.com/resources/legaltools/legalto
  ol6.php
• http://www.impactforensics.com/checklist.html
• http://www.metrocorpcounsel.com/current.php?artType=vi
  ew&artMonth=July&artYear=2007&EntryNo=6901




                                       Electronic Discovery Training, October 2, 2007
                       Contact Information
Rosemary Connolly                 Alan Cote
Chief Trial Division              First Deputy Secretary of the Commonwealth
Attorney General’s Office         Supervisor of Records
(617) 727-2200                    Office of the Secretary of the Commonwealth
Rosemary.Connolly@state.ma.us     617-727-2832
                                  Alan.Cote@state.ma.us

Linda Hamel                       Jenny Hedderman
General Counsel                   Deputy General Counsel
Information Technology Division   Office of the Comptroller
(617) 626-4404                    617-973-2656
Linda.Hamel@state.ma.us           Jenny.Hedderman@state.ma.us

Stephanie Zierten                 Greg Massing
Deputy General Counsel            General Counsel
Information Technology Division   Executive Office of Public Safety and Security
(617) 626-4698                    (617) 727-7775 ext. 25517
Stephanie.Zierten@state.ma.us     Greg.Massing@state.ma.us




                                                   Electronic Discovery Training, October 2, 2007

								
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