So what has been happening in the world of electronic discovery in the litigation context? A lot. From spoliation wars and tragic misfiling of confidential information, to ethics issues involving cloud computing, this presentation is chock full of do’s and don’ts for lawyers dealing with electronic information. For additional information on this presentation, please contact Antigone Peyton (antigone.peyton@cloudigylaw.com).

1. Spoliation Wars
and other ESI highlights
Antigone Peyton & Steve Morrissett
A Presentation by the Electronic Litigation Group
August 9, 2010

2. The Fundamentals
n Litigationholds (preservation)
n Safe harbor - routine operation – 37(f)
n Identifying ESI custodians
n Inventory of ESI sites
n Rule 26(f) meeting ESI requirements
n Protective order provisions
n Searches – context, filters, key words
n Metadata – searching, production
n “Not reasonably accessible” – 26(b)(2)(b)

3. More Fundamentals
n E-discovery team
n Specify “form” of production – 34(b)
n Failure to specify “form” – 34(b)(ii)
n Rule 33(d) complications for ESI
n Redactions of electronic files
n Protecting confidentiality
n Privilege “claw-back” and diligence
n Service of process & subpoenas
n ESI sampling – 34(a)(1)

4. Yet More Fundamentals
n Evidentiary issues – authentication
n Social media issues
n Transient (ephemeral) data
n Foreign privacy laws
n Foreign blocking statutes
n Foreign languages – search, review
n Service of process & subpoenas
n Cost-shifting
n Proportionality: benefit v. burden

5. The Wrong Attitude

6. The Right Attitude

7. Themes in 2010 decisions
n Sanctions and cooperation duties
n Motions to compel and privilege
disputes
n Fewer decisions regarding
preservation, form of production, and
accessibility of data
n Privacy of information
n Social media discovery

8. Preservation
n Synventive Molding Solns. v. Hysky
Injection Molding Sys. (patent case)
n Though not formally part of the FRCP’s, legal holds
are mandatory
n Court can implement holds, including directions for
implementation, if existing hold is deemed
inadequate
n Ordered P to file sworn decl. describing hold and
provide a list of affected custodians

9. Preservation
n Not just e-mail
n Ephermeral data (e.g., instant
messages, data logs)
n Skype messages
n USB flash drive

10. Pension Committee
n Issue written litigation holds early
n Future plaintiffs-no later than retention of outside
counsel
n Should instruct custodians not to destroy records
n Stop auto-destruction programs, especially for unique
data
n Search broadly
n Preservation/collection from key custodians is required
n Failures relating to minor custodians, or redundant
docs can be negligent
n Follow up on former employees or those who may have
changed jobs within company

11. Pension Committee
n Provide adequate discovery
supervision
n Need to be experienced and well-versed in duties
n Do not delegate to an unsupervised/inexperienced
person
n Do not allow employees to determine what is relevant
without guidance
n Memorialize discovery efforts during
process
n Describe rationale behind decisions and information
relied on

12. Pension Committee
n Monitorand manage discovery and
compliance (even if case is stayed)
n Sweep all forms of ESI
n Include PDAs, home computers
n All known media the business uses
n Assume that oversights will be
noticed
n Don’t oversell reliability of process
(“all documents”)
n Defensive affidavits should come from people with
personal knowledge of the efforts

13. Pension Committee
n Gross negligence v. negligence line
n “Contemporary standards” of
discovery practice rendered failures
re: key custodians grossly negligent
n Worthy of adverse inference
n No proof of intentional misconduct

14. Rimkus
n Judge Lee Rosenthal, Chair of Judicial
Conference Committee on Rules and
Practice and Proceedure
n 5th, 7th, 8th, 10th, 11th, and D.C. Circuits
require bad faith to impose adverse
inference
n Gross negligence not enough
n 2nd-negligence sufficient, each party bears
the risk of its actions
n 3rd-balancing test (degree of fault vs.
prejudice)

15. Rimkus
n 5th-Adverse inference when there is
bad faith, mere negligence not
enough
n Dismissal appropriate when “conduct
was so egregious as to amount to a
forfeiture of his claim”
n Uses Sedona concept of
proportionality-burdens and costs
weighed against potential value and
uniqueness of data

16. Sanctions
n Failure to adequately supervise
preservation/collection/production
n Cherrington Asia Ltd. v. A&L
Underground Inc.-inadequate
preparation of 30(b)(6) witness on
party’s e-discovery collection efforts
n Bray & Gillespie Mgmt. LLC v.
Lexington Ins. Co.-failure to produce
native files and misinformation

17. Sanctions
n In re A&M Florida Properties
n Client and outside counsel sanctioned
because outside counsel “simply did not
understand the technical depths to which
[e-discovery] can sometimes go”
n No bad faith finding
n Court required facts relating to appropriate
allocation of sanctions

18. Redacted E-Filings
n Increasing use of electronic filing
systems
n Doc Type: searchable PDFs
n Issue: improper redactions of PDF
n Conversion of redacted word doc to
PDF doesn’t properly redact the text

19. Redacted E-Filings
n Tribune Co. bankruptcy
n Issue: Failure to properly redact complaint filed by
trustee for creditors
n Redacted in Microsoft Word and converted to PDF
for e-filing
n Firm had redaction issue in another creditor case
n Sanction request: limit firm’s access to confidential
docs
n Examiner finding: no intentional or reckless
violation of confidentiality order (report published
Aug. 3, 2010)

20. Social Media
n Stats: Facebook
n Over 500 million active facebook
users (50% daily users)
n Over 100 million w/public information
n Complete facebook profile contains
over 40 pieces of information (+wall
posts & status updates)
n 2/3 of comScore’s Top U.S. websites
integrated

21. Social Media

22. Social Media
n Internet forums
n Weblogs
n Social blogs
n Microblogging
n Wikis
n Podcasts
n Pictures
n Video
n Ratings
n Social Bookmarking

23. Social Media in Court
n Criminal
proceedings-
sentencing
n Evidence to discredit
witness/
impeachment
n Investigation tool-
authorities, lawyers,
and jury consultants

24. Social Media
n Privacy preferences give way to
liberal discovery rules in litigation
n Many rights are waived upon joining,
or by default settings
n Information may be subject to
subpoena
n Little to no expectation of privacy
n Leduc v. Roman (Quebec)-private
Facebook page still discoverable

25. Social Media
n Phila. Bar Op. 2009-02 (3/2009)
n Lawyer had 3rd party send friend request to
adverse witness
n Lawyer cannot do that for purposes of
searching for otherwise private information
on Facebook page
n Rules regarding non-lawyer assistants
apply to third-party actions
n Concerns re: dishonesty, fraud, deceipt or
misrepresentation

26. Social Media
Guidance for lawyers and future lawyers
n Florida Supreme Court upholds
sanction against trial lawyer who called
the judge a “Witch” on a blog
n $1,200 + 5 misconduct charges
n First Amendment defense defeated

27. Social Media
Guidance for lawyers and future lawyers
n Illinois public defender looses job over blog
n posted confidential information relating to representation
n When is the LinkedIn profile an advertisement for
business?
n Bar groups considering formal searches and
requesting access to social media sites
n Florida ethics opinion-unethical for judge to friend
lawyers who practice before him
n Careerbuilder.com 2009 survey-45% of employers
used social media sites to investigate job candidates

28. Social Media
n ThePresident’s Advice:
“Well, let me give you some very
practical tips. First of all, I want
everybody here to be careful about
what you post on Facebook, because
in the YouTube age, whatever you
do, it will be pulled up again later
somewhere in your life.”
“Obama warns U.S. teens of perils of Facebook,” Sept. 8,
2009 (Reuters).

29. Service of Process
n London High Court allowed service of
a court order to an anonymous
blogger over Twitter
n Australian court allowed service of a
default judgment through Facebook
n 9th Circuit-e-mail service ordered

30. Searching Metadata
n Data about data (D.C. Opinion 341)
n Avoid disclosure of confidential or
privileged information
n Employ reasonable means to remove
metadata that might disclose this type of
information
n Lawyers have a duty to acquire sufficient
understanding of technologies to know how
to protect information

31. Searching Metadata
n What do you do if you uncover
confidential or protected metadata?
n If actual knowledge that it was sent
inadvertently, should not review
before checking with other side
n If not clear, always safer to check
with other side
n Comply with instructions of sender if
told to delete or return

32. Client Information
In the Cloud

33. Protecting Client Information
n NY Bar Ethics Op. 820-2/8/2008 (Gmail/Yahoo, etc.)
n Lawyer may use e-mail service that conducts a computer
scan of e-mails to generate targeted ads (no human review)
n Provider stores e-mails
n Privacy policy-no one outside of sender or recipients read
messages or receive targeted ads
n Does not violate prohibition on lawyer or third party using
client confidences for their advantage
n Must stay abreast of evolving technologies to assess risk of
interception and potential alternative technologies that may
reduce risks at reasonable costs

34. Protecting Client Information
n NC Proposed Ethics Op. NC-FEO-2010-7 (Clio-
cloud computing practice-management program)
n Attorney can use third-party SaaS in law practice
n Duty does not compel a particular method of
handling data
n Firm not required to guarantee invulnerable
security procedures
n Ethical obligation is the same: ensure provider
employs security measures that effectively
minimize the risk confidential information will be
lost or disclosed

35. Protecting Client Information
n NJ, Arizona, Vermont, Mass., and Nevada ethics
opinions
n Third-party storage and processing of data/outside
IT support
n Same confidentiality standards apply to physical
client files and e-files/stored client data
n Attorneys must exercise reasonable care when
choosing storage provider
n Must be must be knowledgeable about how it will
handle data entrusted to it
n Ensure agreements with provider include terms
requiring the preservation of the confidentiality
and security of data

36. Evidentiary Issues
n St. Clair v. Johnny’s Oyster & Shrimp,
Inc.
n Any evidence procured of the internet
is good for almost nothing
n Lorraine v. Markel American
Insurance Co.
n counsel must be prepared to deal
with the evidentiary issues associated
with admissibility

37. Evidentiary Issues
n Authentication-FRE 901(a)
n Must have evidence that doc is what
the proponent claims it is
n Internet Specialties West, Inc. v.
ISPWest-3rd party websites not
authenticated by testimony of site
visitor
n Need witness with some access or
first-hand knowledge

38. Evidentiary Issues
n FRE 901
n 901(b)(1). Testimony of witness with knowledge.
n 901(b)(3). Comparison by the trier of fact or by
expert witnesses with a specimen.
n 901(b)(4). Distinctive characteristics and the like.
n 901(b)(7). Public records.
n 901(b)(9). Evidence produced as a result of an
accurate process or system.

39. Evidentiary Issues
n FRE 902: “SELF AUTHENTICATION”
n Three of the rules have been used in
the courts to authenticate ESI:
n 902(5). Official publications.
n 902(7). Self-authentication by
inscriptions, signs, tags or labels.
n 902(11). Authentication of regularly
conducted business.

40. Evidentiary Issues
n The Internet Archive
n Snapshots of web pages over time
n Backups of sites is irregular
n Telewizja Polska USA, Inc. v.
EchoStar Satellite Corp.-authenticated
n St. Luke’s Cataract & Laser Inst. v.
Sanderson-not authenticated, need
statement from IA representative w/
personal knowledge

41. Questions?
“Three things in life are certain: death, taxes,
and computer failures.”
-Erik Heels