The Updated E‐Discovery Primer
Essential for Every Litigator’s Practice
Heidi J.K. Fessler, Innova Law Group, PLLCJohn M. Degnan, Briggs and Morgan
The Electronic Universe
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State Of E‐Discovery
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There are 2.5 quintillion bytes of data created each day and growth is accelerating due to the Internet of Things (IoT).
Over the last two years alone 90 percent of the data in the world was generated.
In 2017 46.8% of the global population accessed the internet and by 2021 this figure is projected to grow to 53.7%.
4 BILLION of the 6.8 BILLION people on the planet use a mobile phone. 3.5 BILLION of them use a toothbrush.3
https://www.forbes.com/sites/bernardmarr/2018/05/21/how‐much‐data‐do‐we‐create‐every‐day‐the‐mind‐blowing‐stats‐everyone‐should‐read/#212b292160ba
https://www.smartinsights.com/search‐engine‐marketing/search‐engine‐statistics/
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Electronic Documents Are Ubiquitous
https://web‐assets.domo.com/blog/wp‐content/uploads/2017/07/17_domo_data‐never‐sleeps‐5‐01.png
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Translating Data Units of Measure
Name Number of Bytes Amount of Text
kilobyte (kB) 210 or 1,024 1/2 page
megabyte (mB) 220 or 1,048,576 500 pages or 1 thick book
gigabyte (gB) 230 or 1,073,741,824 500,000 pages or 1,000 thick books
terabyte (tB) 240 or 1,099,511,627,776 1,000,000 thick books
petabyte 250 or 1,125,899,906,842,624 180 Libraries of Congress
exabyte 260 or 1,152,921,504,606,846,976 180 thousand Libraries of Congress
zettabyte 270 or 1,180,591,620,717,411,303,424 180 million Libraries of Congress
yottabyte 280 or 1,208,925,819,614,629,174,706,176 180 billion Libraries of Congress
The ESI Environment
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Obligation to Understand and Embrace Technology
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Less than 25 % of the judges agreed with this statement:
“The typical attorney possesses the legal and subject matter knowledge required to effectively counsel clients on eDiscovery matters.” (EDRM Duke Law)
• Biggest concern – Lack of cooperation among the parties • Good news – Judges see vast improvement compared to 5 years ago• Judges are taking a more active role in achieving just, speedy and inexpensive resolutions • Sanctions for intent to deprive, not just negligence• Proportionality gaining traction• Social media discovery is increasingly commonplace
Why Lawyers Need to Know E‐Discovery
ABA comment to Rule 1.1 of the Model Rules:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ***
eDiscovery as Specialized Area of Practice Discovery and eDiscovery involves risk. State and federal rules require competency when undertaking discovery and with electronic discovery the changing landscape increases the risk.
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Why Lawyers Need to Know E‐Discovery
Rule 1.1 of the Minnesota Rules of Professional Conduct:
Our world is digital – and virtually every document is an e‐document. The knowledge required by Rule 1.1 includes knowledge about how to handle ESI.
Attorneys must have a basic understanding of electronic discovery and engage eDiscovery experts when appropriate.
The competency requirement is held by counsel and cannot be abdicated to support staff.
Why Lawyers Need to Know E‐Discovery
“Lawyers must be aware of how [social media] websites operate and the issues they raise in
order to represent clients whose matters may be impacted by content posted on social media
websites. Lawyers should also understand the manner in which postings are either public or
private…As the use of social media expands, so does its place in legal disputes. This is based on
the fact that many clients seeking legal advice have at least one account on a social networking
site. While an attorney is not responsible for the information posted by a client on the client’s
social media profile, an attorney may and often should advise a client about the content on the
client’s profile.”
Pennsylvania Formal Ethics Opinion 2014‐300
“Ethical Obligations for Attorneys Using Social Media”
Courts are enforcing Rule 26(g)
When a lawyer signs discovery requests, responses or objections, the attorney certifies ‐ subject to mandatory sanctions ‐that the pleading is:
Consistent with the procedural rules Not interposed for an improper purpose, such as delay or to increase the cost of litigation, and Neither unreasonable nor unduly burdensome
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Why Lawyers Need to Know E‐Discovery
Recognizing Electronic Data in Cases of All Types
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Microsoft Office documents
E‐Mail (e.g. gmail, hotmail accounts)
Databases ‐ “Databases run the world” according to a leading authority (Craig Ball)
Financial/accounting software
Websites (including old versions)
CAD/CAM Drawings
Social Media
Cell Phone Functions and Geotags
Texts and Instant Messages
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Examples of ESI:
Life/Safety Systems Manufacturing Monitoring Systems
Vehicle “Black Box” Devices Emergency Dispatch System Record
Key Card Entry Systems GPS Tracking Applications
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Additional “Novel” Hardware:
Challenges in E-Discovery
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Essential Framework
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While the handling and management of evidence always contains some risk of spoliation, due to the very dynamic nature of electronic data inadvertent destruction is much more likely to occur. Destruction may result from the use or access of the data or even as a result of the computer systems’ normal operation.
E.g., auto delete settings on email deleted, sent, inbox.
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Inadvertent Destruction Much Easier
Employment
Family Criminal All Types Of Civil
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Types of Cases
Email once was king
Employers ability to gain access to employees’ personal devices
Ever‐increasing plethora of mobile devices
Transient data
The sophisticated nature of “Live” or changing databases
Non‐text based data such as video and voicemail
Geo‐location information is increasingly important to establish facts in criminal, family law, and personal injury cases
In short, the learning curve may not be steep, but it is forever in flux
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“The Music Keeps Playing”
E‐Discovery In The Cloud
Collection from Cloud based e‐mail applications is already taking place. It is important to note that metadata can be obtained but it is limited based upon the agreement with the cloud provider.
To reach the data ‐ permissions are required and the cloud provider must provide that access to the collection team.
Generally metadata which is at the file level will be obtained but system metadata will not be taken.
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Cloud Based Databases ‐Much of the information currently being held out in the cloud is contained within databases such as Salesforce.com, Oracle and SAP. There is enhanced complexity regarding collecting this type of data from the cloud.
Generally speaking databases are not collected but rather reports are defined which provide the desired information. This collection challenge is only magnified in the cloud.
E‐Discovery In The Cloud
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The World of Emoticons and Emojis
Definition of an Emoticon
Emoticon ‐ a symbol added to text to express emotional affect or reaction (ie. sadness, happiness, joking intent, sarcasm, etc.)
Emoticons are often expressed by a conventional kind of "ASCII art," using sequences of punctuation and other symbols to portray likenesses of facial expressions. In Western contexts these are often turned sideways, as :‐) to express a happy face.
Thank you so much for listening and not using your cell phone. 😊😉☹
Definition of Emojis
A small digital image or icon used to express an idea or emotion.
Originates from Japanese: “e” meaning picture + “moji” meaning letter or character.
Emoji are pictorial symbols presented in colorful, cartoonish forms. Emojis represent people, expressions, weather, vehicles and buildings, food, animals, plants and are also used to represent emotions, feelings, or activities.
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A Picture is Worth a Thousand Words
92% of the online population uses emojis. 2.3 trillion mobile messages incorporated emojis in 2016. A 2015 study conducted by Adweek, the Silent Generation, Baby Boomers and Generation X frequently employ emojis in their online conversations, as well, with Millennials and Generation Z leading by only 4‐10%.
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Emojis in Employment Lawsuits
Mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Since 2010, employees have filed at least 39 federal discrimination, harassment, or retaliation lawsuits that include emojis or emoticons in their allegations. The majority (30) were brought under workplace anti‐bias laws, but emojis also have popped up in medical leave, wage and hour, and other labor complaints.
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Emojis in Employment Lawsuits
Employment Cases Employers Rely on Employees’ Use of Emojis to Defeat Discrimination and Harassment Claims
Arnold v. Reliant Bank, 932 F.Supp.2d 840 (M.D. Tenn. 2013) Murdoch v. Medjet Assistance, LLC, 294 F.Supp.3d 1242 (N.D. Ala. 2018) Mooneyhan v. Telecommunications Mgmt., LLC, No. 16‐cv‐118, 2017 WL 5478474 (E.D. Mo. Nov. 15, 2017) Stewart v. Durham, No. 16‐cv‐744 (S.D. Miss. June 9, 2017)
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Emojis and Attorney Discipline
In re Tajudeen O. Oladiran, 2010 WL 3775074 (D. Az. Sept, 21, 2010)
“Finally, to Susan Bolton, we shall meet again you know where 😊😊” “The most menacing smiley emoticon ever.”
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A series of emojis sent by a couple to a landlord in response to an apartment listing were evidence of reliance, a general principle of contract law.
Emojis as Evidence of Acceptance Offer
Inter‐Office Communication
Example:A text message exchange between an HR Manager and an employee’s supervisor.The employee, Todd, is terminated two days after the exchange and files a suit alleging violations of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).A key piece of evidence in this lawsuit is the supervisor’s response
‐‐‐Why?31
Inter‐Office Communication
Should employees be discouraged from using emojis to communicate?
“Todd argues that this crude response proves that his supervisor harbors an unlawful animus towards those who take family and medical leave and those who are disabled. After all, instead of just responding “we should terminate Todd,” the supervisor went out of his way to creatively combine some images to make the termination decision seem humorous. “Game over” is clearly unprofessional and not very sympathetic. It is a piece of “evidence” the company’s lawyers will now have to try to explain away.”
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Proportionality – Technology
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Minnesota Rule on Proportionality
Proportionality cannot be used as a shield
Trust but Verify
Validation of the Cost of eDiscovery
It can be easy for counsel or its client to misstate the cost of retrieving electronic data –intentionally or not.
Sometimes an expert is needed in order to help unravel the real costs and technological issues posed by an e‐discovery dispute.
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Proportionality Assessment
Frequently used by courts to address proportionality issues
Extraordinary measures = candidate for cost shifting or cost sharing
Overbroad or “all documents referring or reflecting” = candidate for cost shifting
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Cost Shifting
Minn.R.Civ.P. 26.06 and Minn.R.Civ.P. 34.02 allows Judge to allocate costs of e‐discovery in order to help manage discovery costs (e.g. Requestor pays or shares in cost for retrieval of data that is of questionable value).
Minn.R.Civ.P. 26.02(b)(2) – Party need not provide data from sources that are “not reasonably accessible” because of “undue burden or cost.”
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Cost Sharing
Minn.R.Civ.P. 26.06 and Minn.R.Civ.P. 34.02 allows Judge to allocate costs of e‐discovery in order to help manage discovery costs (e.g. Requestor pays or shares in cost for retrieval of data that is of questionable value).
Minn.R.Civ.P. 26.02(b)(2) – Party need not provide data from sources that are “not reasonably accessible” because of “undue burden or cost.”
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Cost Sharing
Sanctions
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Sanctions
Kowalewski v. BNSF Case
Plaintiff moved for sanctions, alleging discovery violations, spoliation, and misconduct. The district court
(1) granted Plaintiff’s motion for sanctions, struck BNSF’s defenses on liability and causation, and entered judgment for Kowalewski on those issues, plus costs and attorney fees;
(2) limited the upcoming trial to damages only; (3) denied BNSF’s motion to exclude expert testimony; and (4) scheduled a hearing on contempt and monetary sanctions against BNSF and its counsel.
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Sanctions
“Sanctions for failing to comply with a discovery order may include dismissal of all or part of a claim. Minn. R. Civ. P. 37.02(b)(3); see also Minn. R. Civ. P. 16.06 (“If a party or party’s attorney fails to obey a scheduling or pretrial order, . . . the court, upon motion or upon its own initiative, may make such orders with regard thereto as are just, including any of the orders provided in Rule 37.02(b)(2), (3), (4).”).
When a party has willfully and persistently failed to comply with a discovery order without justification or excuse, that party has forfeited the right to a trial on the merits. Frontier, 788 N.W.2d at 922”.
Kowalewski v. BNSF, A18‐0559, A18‐1214, A18‐1406, (Minn. App. Apr. 22, 2019)
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Paisley Park Enterprises, et. al. v. Boxill et. al.
“The Court directed the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.”Then…. The defendants failed to remove the auto‐delete function on their phones and wiped the data from their phones.
They inferred that the spoliation of data was the result of the plaintiffs’ failure to send a preservation notice.
Their counsel failed to instruct them to preserve the text messages on their phones; The discovery requests did not specifically identify text messages as a form of document sought.The Court held that parties are responsible for the conduct of their attorneys; an adverse party is not required to bear the burden of misconduct committed by the opposing side’s counsel. P. 11
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Sanctions
Sanctions
Paisley Park Enterprises, et. al. v. Boxill et. al.
Defendants Wilson and Staley claimed they should not be sanctioned as they were not personally named as parties until June 2018.
The court held that the duty to preserve still attached in February 2017, when they recognized litigation was a possibility. Nothing in the intervening months relieved either individual of this duty. P. 13
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Sanctions
Paisley Park Enterprises, et. al. v. Boxill et. al. The court further held that a party is responsible for the conduct of their counsel. an adverse party is not required to bear the burden of misconduct committed by the opposing side’s counsel Rule 34 requires the production of any document, including, “data or data compilations—stored in any medium from which information can be obtained . . . directly. It is well established that text messages “fit comfortably within the scope of materials that a party may request under Rule 34.
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Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004)
Court has never approved the giving of an adverse inference instruction on the basis of negligence alone – requires a finding of bad faith based on evidence of intent to destroy documents for the purpose of suppressing evidence.
Also cites to court’s inherent power under Rule 37 of the Federal Rules of Civil Procedure.
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Sanctions
Escamilla v. SMS Holdings Corp., 2011 WL 5025254 (D. Minn., October 21, 2011)
Court ordered additional discovery and cost shifting as an interim sanction; prejudice was presumed because evidence was irretrievably destroyed.
Note that court ordered sanction for spoliation citing to the court’s inherent disciplinary powers and bad faith finding not required.
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Sanctions
Sanctions
Multifeeder Technologies, Inc. v. British Confectionary Co. Ltd., CASE 0:09‐cv‐01090‐JRT‐TNL (D.C.Minn. 9/18/12)
Judge Tunheim issued an order granting:
Modification of the earlier order awarding incurred fees to CFS of $475,000.00 to reflect the current amount due of $490,524.53;
$176,607.21 in costs and fees associated with the proceedings; and
$25,000.00 to the court.
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Malpractice in E‐Discovery
"Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information." Zubulake V, 229 F.R.D. 422, at 440 (2004).
J‐M Manufacturing Company v. McDermott, Will & Emory (filed in California Superior Court, June 1, 2011) – Law firm sued for producing privileged electronic documents.
*In the end, if spoliation or deficiencies in the discovery process result in sanctions or adverse outcomes, arising from anything other than the deliberate actions of the client, the client will hold counsel responsible.
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Sanctions
If attorneys are technically competent,
and engage in proportional discovery practices in a fully cooperative manner,
it is very unlikely that they will be sanctioned for discovery practices within their control.
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Questions
Heidi J.K. FesslerInnova Law Group, [email protected]‐278‐3895
John DegnanBriggs and [email protected]‐977‐8660
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