E-DISCOVERY: In Ohio and Federal Courts Understanding and Controlling Cost & Risk Katie Giumenti,...

E-DISCOVERY: In Ohio and Federal Courts

Understanding and Controlling Cost & Risk

Katie Giumenti, Esq.Greg Krabacher, Esq.

Bricker & Eckler LLP100 South Third StreetColumbus, OH 43215

[email protected]

Roadmap for Today

I. Overview of the July 2008 Amendments to the Ohio Rules of Civil Procedure

II. Likely Impact of Ohio Rules Based On Emerging Trends in Federal Courts

Ohio Rules of Civil Procedure

• Amended to Accommodate eDiscovery

• Effective Date: July 1, 2008

• Apply to:– All new cases– Pending actions, unless not feasible

or unjust

Terms of Art

• ESI: Electronically Stored Information

• eDiscovery: Discovery of ESI

Amendments to Ohio Rules of Civ. P.

• Based on 2006 Amendments to the Federal Rules of Civil Procedure

• Very Similar – BUT Not IdenticalDifferences in the Practical Application

• Similarities Far Outweigh Differences

Scope of Discovery

Amended Ohio R. Civ. P. 26(A):

• As before, the Scope of Discovery:– Relevant, and– Not Privileged

(See Ohio R. Civ. P. 26(B)(1))

• Now, expressly refers to discovery of ESI

Discovery of ESI

Amended Ohio R. Civ. P. 34(A):• Request for production can include

ESI

Amended Ohio R. Civ. P. 34(B):• Request may specify the form in

which ESI is to be produced• But, cannot require production of ESI

in more than one form

Reasonably Useable Form

Amended Ohio R. Civ. P. 34(B)(3):

IF request for ESI does not specify form of production, responding party may produce the ESI either

• In the form in which it is ordinarily maintained if that form is reasonably useable;

or• In any form that is reasonably

useable

Exception if eDiscovery is Burdensome

Amended Ohio R. Civ. P. 26(B)(4):• Proper objection to discovery of ESI if

production imposes:– “Undue burden or expense”

• If motion to compel discovery or for protective order is filed:– Responding party must show that ESI

is “not reasonably accessible” because of undue burden or expense

No Black and White Test

Advisory Com. Notes to Federal Rule 26(b)(2):

“It is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information.”

Simply put: Accessibility of ESI is determined on a case-by-case basis.

“Good Cause” Exception

• EVEN IF eDiscovery causes undue burden or expense:

– Court may still order production of ESI IF requesting party shows “good cause”

Factors in Analysis of “Good Cause”

Amended Ohio R. Civ. P. 26(B)(4):1. Is info sought unreasonably

duplicative? 2. Can info be obtained from less

burdensome source? 3. Has requesting party had ample

opportunity to get info in discovery?4. Does the burden/expense of

production outweigh its likely benefit?

Additional Factors Considered in Federal Courts

Advisory Com. Notes to Federal Rule 26(b)(2):

Can the burdens and costs of discovery of ESI that is not reasonably accessible be justified in circumstances of the case?

Accessibility of ESI is determined on

a case-by-case basis.

Duty to Preserve ESI

• Triggered when litigation is “reasonably anticipated”

• “[G]enerally left to the discretion of the trial judge.”

(See Staff Notes to Ohio R. Civ. P. 37(F))

• Mechanisms for preservation:

1. Litigation Hold

2. Preservation Letter

Claims of Privilege

Amended Ohio R. Civ. P. 26(B)(6)(a) –

To Withhold Information:

• Make the claim of privilege expressly;

and

• Describe what is withheld in sufficient detail to enable the demanding party to contest the claim.

Oops Rule

Amended Ohio R. Civ. P. 26(B)(6)(b) – Information Produced:

• Built-in “Oops Rule” for how to handle mistakenly produced privileged material. Producing party must:

– Notify receiving party of the claim and basis for it; and

– Preserve the info until claim resolved.

Oops Rule

Amended Ohio R. Civ. P. 26(B)(6)(b) (cont’d)

Receiving party must:

– Promptly return, sequester, or destroy the info;

– Not use or disclose the info until claim resolved;

– Take reasonable steps to retrieve info if already disclosed; and

– May present info to the court under seal for determination.

Claw-Back Agreement

Amended Ohio R. Civ. P. 16(9):• Parties may proactively enter into a

“Claw Back” Agreement to address the possible future inadvertent production of privileged info.

Bricker & Eckler’s eDiscovery Blog

Bricker & Eckler’s eDiscovery Blog

www.eDiscoTech.com

Questions?

Katie Giumenti, [email protected]

614.227.8825

Columbus • Cleveland • Cincinnati-Dayton

www.bricker.com

© Bricker & Eckler LLP

Technology is Changing the Nature of Litigation

In this portion of the presentation we will:– Examine the challenges that set

eDiscovery apart from traditional paper discovery;

– Take a walk through the process of eDiscovery from end-to-end; and

– Identify minimum requirements under the Rules as well as areas of strategic advantage.


A large and rapidly expanding “Digital Universe”

SOURCE: IDC, “The Diverse and Exploding Digital Universe: An Updated Forecast of Worldwide Information Growth Through 2011” (March 2008), Figure 1 used with permission.


Greater Complexity In the Storage and Use of ESI


The Dynamic and Fragile Nature of ESI


A Walk Through of the eDiscovery Process

Used with permission of EDRM.


Your Information Management

CreateRecords

Label &OrganizeRecords

Store & BackupRecords

UseRecords

ConsiderRetention

Needs

Discard Unneeded Records Business

InformationLifecycle


Your information management…on litigation

CreateRecords

Label &OrganizeRecords

Store & BackupRecords

UseRecords

ConsiderRetention

Needs

Discard Unneeded Records Business

InformationLifecycle


“Safe Harbor” from Sanctions

Amended Ohio R. Civ. P. 37(F): “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.”


“Safe Harbor” Factors to Consider

Courts will consider the following factors:1. Whether and when the obligation to preserve

was triggered;

2. Whether info was lost due to routine alteration or deletion that attends the ordinary use of the system;

3. Whether the party intervened in a timely fashion to prevent loss of info;

4. Any steps taken to comply with court order or party agreement requiring preservation of specific info; and

5. Any other relevant facts.


No Port in the Storm

“Safe Harbor” provision only applies to the ordinary use of the system

• Case Facts:• Hard drives on computers of key

personnel wiped out; • Tampering of four PST files; • Backup process modified during litigation

• Result: Adverse inference instruction.


No Port in the Storm

Legal Holds must be timely implemented

• Case Facts: Defendant failed to suspend automatic e-mail deletion for over 2 years after lawsuit filed.

• Result: Court ordered restoration of defendant’s backup tapes at its expense.

Note: Could have been worse if relevant data not on back up tapes


Information Management Strategies Designed to Reduce Cost & Risk

• Record retention schedules and formal policy for record destruction– New IRS From 990 for 501(c)(3)s, Sarbanes-Oxley,

Enron & WorldCom• Legal hold policy and implementation strategy

that is swift, defensible, and non-disruptive• Litigation response protocol• Advanced documentation for later litigation

– System diagrams, HW/SW inventory, usernames, user rights & access, encryption, back-up procedures, web, telephony, mobile devices, etc

– Understanding of user storage habits– Costs for recovery of various data & data stores

• Well documented training program


Identification of Relevant Data in Litigation

• Perform initial evaluation of the case:

– What are the substantive issues involved?

– Who within the organization is likely to be a custodian of relevant information?

• Really understand the information management system & user habits– Where and how is date stored? Backed up?

– Are there differences between actual practice and written procedures?

– User habits of key players -- how do custodians deal with ESI on a daily basis?


Identification of Relevant Data in Litigation

• Design and apply the search strategy:– Reliance upon custodians to eye-ball relevant ESI

pursuant to your instructions– Keyword, Boolean logic, and Proximity (iteratively) – Clustering—similarity with ESI already identified – Taxonomy & Ontology—relationship searching– Bayesian classifiers—statistical probability that

ESI is relevant– Fuzzy logic—degree to which ESI may be relevant

• Document your strategy with a view that you may well need to defend it later


Scope of Discovery

• Like the Federal Rule, Ohio now expressly allows discovery of ESI

• General limits: relevant and not privileged

• Additional limits for ESI: “not reasonably accessible because of undue burden or cost”

• BUT, the court may nonetheless order discovery from such sources if the requesting party shows good cause


Preservation of ESI

• Reasonable efforts to preserve must begin as soon as litigation is reasonably anticipated – Civ. R. 37(F)(1) & (3) Safe Harbor timing

• Collection (extraction of data) may come later when you are faced with a discovery request provided it was adequately preserved

• Litigation hold

– Written instructions to possible custodians and “key players” not to delete relevant information

– Issue early on and supplement as your understanding of the case & key players evolves


Preservation of ESI

• IT staff/consultants & specialized software may be needed for:

– Imaging or ghosting entire hard drives

– Suspending back up tape recycling (not a substitute for imaging)

– Suspending automated document destruction (perhaps selectively)

• Tools:

– Ghosting Tools: E.g., “Norton Ghost”

– Imaging Tools: E.g., “DD” (Dept of Defense)


Defensible Collection of ESI

• Planning the collection strategy

– Consider terms of discovery agreements or orders

– Consider instructions of the requesting party and your arguments for deviation

• Unreasonably broad, burdensome

• Not relevant or reasonably likely to lead to admissible evidence (low threshold)

– If Metadata will be produced, take care to avoid disturbing


Defensible Collection of ESI

• Chain of custody– Document collection activities on standardized forms

– Limit & document access after collection

– Involve personnel whom you don’t mind being deposed

• Consider Hashing ESI at point of collection to create digital “fingerprints”

• Use appropriate collection tools– E.g., RoboCopy to collect ESI from Windows PCs

– E.g., Hashing with HashTab or PinpointHash

– E.g., Forensic Toolkits such as EnCase ($$$) or PenguinSleuth, Helix, Fire


A Word on Discovery Agreements / Orders

• Nearly always helpful to clarify the obligations and expectations of the parties and the court

• Remember that burdensome discovery may be ordered upon a showing of good cause

– Therefore you had better preserve it until or unless you get an agreement/order stating that you don’t have to

– Come to the negotiation table knowing what your costs are to respond

• Remember that the Safe Harbor factors include compliance with orders / agreements


A Word on Discovery Agreements / Orders

• Fed Cases – Discovery meeting, plan required• Ohio’s Rule 16 makes this discretionary:

– Part 12 catch all provision makes preservation issues potential topic

– New Part 8 “[t]he timing, methods of search and production, and the limitations, if any, to be applied to the discovery of documents and electronically stored information”

– New Part 9 “Claw Back” Agreements [26(B)(6)(b) default]

• The Last Word: Honor your agreements and don’t screw around with skirting Court Orders


Processing ESI

• Many vendors & software products available

• De-duplication– Hash (MD5 or SHA-1) each file or (better) parts of

each file

– Create an index of all unique hash values

– Compare each file’s hash value to the index

– Eliminate redundant data “chunks” & replace with pointer to the saved single instance

– Compression can be 10:1 or even 50:1

• Filtering, e.g. Date range, keyword, custodian, or other agreed parameters

• Prepare for review—triage, organize, format


Review & Analysis of ESI

• Review & analysis must be iterative process• Review plan

– For big jobs consider using support staff, temps, etc for initial review, summary, tagging, coding, indexing

– Provide very clear direction and careful oversight to support staff

– Attorney should make the call for production decisions after the prep work has been completed


Review & Analysis of ESI

• Technology to speed the process:– Hosted environments such as Applied

Discovery®, Kroll Ontrack®, FIOS®, Pitney-Bowes

• These vendor offer end-to-end support for identification, collection, processing, review, and production

– Older, less jazzy litigation support tools such as Summation® and Concordance®

• Huge install base• Far cheaper for small cases• Limited functionality

– Custom solutions by your in-house IT staff or IT consultants


Production

Fed & Ohio Rule 34(B):• Request may specify the form or forms in

which ESI is to be produced• May request different info be produced in

different formats but can’t request same info be produced in multiple formats

• If no form specified, responding party must provide in a reasonably usable form

Staff Notes to Federal Rule:• If the ESI is ordinarily kept in a searchable

form then “reasonably useable” requires that it be produced in a searchable form


Production

• Best practice: attempt to agree in advance on the production formats

• If a dispute arises the court may order that ESI be re-produced in certain formats

• E.g., court ordered the Gov’t to re-produce ESI in such a manner that each document could be traced to the source custodian


Continuing Obligation to Produce

• Duty to produce responsive ESI is a continuing one.

• Qualcomm, Inc. v. Broadcom Corp. (S. D. Cal. January 7, 2008)– 21 emails found. – Over 200,000 more pages of emails

eventually located – after trial. – Counsel failed to follow-up on indications

that additional responsive ESI existed.– Sanctions of over $8 million!


Presenting ESI at Depos, Hearings, Trial, Etc

• The majority practice today is to image the ESI, create a TIFF or PDF, and stamp a bates number on the image

• Chain of custody and proper foundation important to admissibility

• Present either a printed copy or use a program such as Trial Director® to bring up the image on the screen


Questions?

Greg Krabacher, [email protected]

614.227.2369

Columbus • Cleveland • Cincinnati-Dayton

www.bricker.com

E-DISCOVERY: In Ohio and Federal Courts Understanding and Controlling Cost & Risk Katie Giumenti,...

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