MOVING INTO THE ELECTRONIC DISCOVERY AGE by byk79441

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									    MOVING INTO THE
ELECTRONIC DISCOVERY AGE
             Matthew Boyle, Esq.
   Imai, Tadlock, Keeney and Cordery, LLP
          100 Bush Street, Suite 1300
           San Francisco, California


            Imai, Tadlock, Keeney & Cordery,   1
                           LLP
            Filing of a Lawsuit
•  “Discovery” begins after the filing of a lawsuit
•  Allows parties to “discover” what facts and
   documents the other side has
•  Discovery can be Interrogatories, Requests for
   Admission or a Request for Production of Documents
•  “Reasonably calculated to lead to the discovery of
   admissible evidence”
•  Subpoenas can request documents from non-parties


                  Imai, Tadlock, Keeney & Cordery,   2
                                 LLP
     “Documents” as Defined in the
           Evidence Code
•  Handwriting, typewriting, printing,
   photographs, photostats, photocopies,
   transmissions by fax and e-mail “and every
   other means of recording upon any tangible
   thing, any form of communication or
   representation, including letters, words,
   pictures, sounds or symbols, or combinations
   thereof, and any records thereby created,
   regardless of the manner in which the record
   has been stored.”
                 Imai, Tadlock, Keeney & Cordery,   3
                                LLP
Different Concerns - Paper Documents
        Versus Electronic Data
•  Electronic data can be sent to many recipients
   almost instantaneously
•  The recipients can save the electronic data
   either locally or on a server
•  Electronic data can be altered easily
•  A recipient can “delete” electronic data, but it
   will continue to exist until it is overwritten
•  Paper documents can be simply shredded

                  Imai, Tadlock, Keeney & Cordery,    4
                                 LLP
  Electronic Data Contains Metadata
•  “Data about data”
•  Metadata is embedded in the file itself and is
   not viewable
•  Metadata contains information about the file
   (when the file was opened, when it was
   altered, etc.)
•  MP3 have metadata
•  Metadata might be useful to establish issues of
   timing
                 Imai, Tadlock, Keeney & Cordery,    5
                                LLP
 When Does a Duty Arise to Preserve
        Electronic Data?
•  An entity has a duty to preserve electronic data
   when it has notice that a lawsuit has been or
   might be filed.
•  Counsel and client can be sanctioned for the
   destruction of data
•  Notice to one employee of the client provides
   institutional notice to all members of that client


                  Imai, Tadlock, Keeney & Cordery,   6
                                 LLP
      Electronic Data Is Becoming
         Increasingly Prevalent
•  Paper constituted only .01% of the total of new
   data generated in 2002
•  Electronic data will only continue to increase
   in the future
•  1 GB of data is equal to between 70,000 and
   80,000 pages



                 Imai, Tadlock, Keeney & Cordery,   7
                                LLP
Recent Example of Sanctions Imposed
      - Spoliation of Evidence
•  San Francisco Chronicle-September 4, 2008
•  Involved CEO of Oracle
•  US District Judge rules that Larry Ellison deliberately
   destroyed or withheld e-mails and failed to preserve
   tape recordings
•  A duty was found to preserve e-mails after the
   lawsuit was filed and many e-mails were missing
   after that date
•  The sanction is to instruct the jury that Ellison knew
   of facts that are harmful to Oracle’s case
                    Imai, Tadlock, Keeney & Cordery,     8
                                   LLP
  Good-Faith Policies of Deletion
•  Entities are allowed to have policies for
   deletion with respect to their electronic data
•  Critical for companies to have a policy!
•  Sanctions might be avoided if the destruction
   of data took place pursuant to a good faith
   policy of deletion
•  Halt the destruction of any data or documents
   until it can be determined that relevant data
   either exists or does not exist
                 Imai, Tadlock, Keeney & Cordery,   9
                                LLP
  How Does One Go about Compiling
         Electronic Data?
•  Teams should be formed: (1) knowledge about the
   case and (2) knowledge about the client’s information
   technology applications (i.e., what programs does the
   client use?)
•  Parties should attempt to define the scope of
   electronic discovery early in the litigation
•  Client should know where the data is stored:
   desktops, laptops, USB drives, CDs, voicemails, etc.
•  There might be a duty to preserve more electronic
   data than is required to be produced


                   Imai, Tadlock, Keeney & Cordery,    10
                                  LLP
       Collection of Electronic Data
•    What is the subject matter of the data?
•    Who are the custodians?
•    What are the dates involved?
•    Where is the data located?
•    What types of data are involved?




                    Imai, Tadlock, Keeney & Cordery,   11
                                   LLP
 The Federal Rules of Civil Procedure
•  “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…
   The court may nonetheless order discovery
   from such sources if the requesting party
   shows good cause.”


                 Imai, Tadlock, Keeney & Cordery,   12
                                LLP
SPECIALISTS IN THE GATHERING
   AND PRODUCING OF DATA
•  It might be appropriate to retain a specialist
•  Specialists - more costly upfront, but save the client’s
   IT department valuable time and effort. Also,
   specialists know the legal obligations.
•  Client’s IT department can be used for electronic
   discovery, but might be ultimately more costly if the
   department is not familiar with electronic discovery



                    Imai, Tadlock, Keeney & Cordery,      13
                                   LLP
       Processing Electronic Data
•  (1) Search terms can be used to narrow the scope and
   time for the search
•  (2) Attorneys with knowledge of the case need to go
   over the result to determine what documents are
   responsive
•  Search alone – not sufficient! Attorneys alone -
   costly
•  Once the data has been gathered, it should be
   produced (if possible) in its original form
•  Privacy concerns with personal emails (redact – black
                                     attorneys
   out) – Decision made by LLP & Cordery,
                      Imai, Tadlock, Keeney            14
      Over Saving Versus Under Saving
•    Over Saving
•    Impede day to day business operations
•    Slow response time in responding to a lawsuit
•    Under Saving
•    Retention requirements imposed by law
•    Keep business needs


                   Imai, Tadlock, Keeney & Cordery,   15
                                  LLP
                 Conclusion
•  Once a lawsuit has been filed, don’t destroy
   anything that’s possibly relevant
•  Get advice of counsel as early as possible




                 Imai, Tadlock, Keeney & Cordery,   16
                                LLP

								
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