E-discovery ethics CLE course taught at the Orange County, Florida Bar Association's Small Firm and Solo Practice Committee meeting on April 25, 2010.

1. Keeping Inviolate Clients’
Secrets in the Age of
Electronic Communications,
Websites, and Emails
A Game of E-Discovery Jeopardy
Suzanne D. Meehle
Innes & Meehle, P.L.
730 Maitland Avenue
Altamonte Springs, Florida 32701
Phone 407-792-6503
Fax 407-792-6504
Email suzanne@innesmeehle.com

2. WHO ARE YOU?
AND WHY SHOULD
I LISTEN TO YOU
ANYWAY?
Hi! I’m Suzanne.
I grew up in Huntsville, Alabama - home of Werner Von Braun’s rocket program - and moved to Central Florida
in 1999. I graduated magna cum laude from the University of Alabama in Huntsville with a Bachelor of Arts in
English in 1991. Despite my liberal arts background, I stumbled into a 10+ year as a systems engineer working
for a number of start-up software and heath care technology firms as well as running my own consulting
business. In plain English,I was a computer network and database “geek,” and I really understand computer
systems: networks, operating systems, databases, data warehouses, email servers, ... you get the idea.
I went on to obtain a Juris Doctor from Barry University School of Law, graduating cum laude in 2003. I
previously worked as an associate with ShuffieldLowman, where I specialized in corporate transactions and
intellectual property. Because of my background, I also became the “go to” person when e-discovery issues
reared their ugly heads in our litigation department. Most of the time, I happily worked on the side of litigation
avoidance, but I have drafted my share of litigation hold letters and given plenty of lectures to my clients about
preservation of electronic evidence. Oh, and in December 2008, I received my certification in e-discovery from
Kroll Ontrack.
And if that doesn’t convince you, there’s always the chocolate.

3. RULES
• At the top of the screen you will see the
selected topic or category. (Sorry! You don’t
get to choose the category.)
• An answer will appear on the screen before
you.
• Raise your hand quickly if you know the
response and wait to be called.
• Remember that your response must be in
the form of a question.

4. Oath Text

5. Oath Text
This duty is imposed on Florida lawyers by the
Oath of the Florida Bar regarding client
communications.

6. Oath Text
This duty is imposed on Florida lawyers by the
Oath of the Florida Bar regarding client
communications.
What is maintaining confidentiality and
preserving inviolate the secrets of client
communications?

7. Oath Text

8. Oath Text
These days, client communications include all of
these.

9. Oath Text
These days, client communications include all of
these.
What are electronic communications between
client and attorney, including text (SMS)
messages, email messages, instant messages
(IMs), fax messages, and voice mail.

10. GENERAL ETHICS

11. GENERAL ETHICS
Florida lawyers must abide by this code of
ethics and responsibility.

12. GENERAL ETHICS
Florida lawyers must abide by this code of
ethics and responsibility.
What are the Rules Regulating The Florida
Bar (or more specifically, Section 4 - The
Rules of Professional Conduct)?

13. GENERAL CONFIDENTIALITY

14. GENERAL CONFIDENTIALITY
This duty is imposed on Florida lawyers
regarding client communications.

15. GENERAL CONFIDENTIALITY
This duty is imposed on Florida lawyers
regarding client communications.
What is protecting the confidences of all clients
and abiding all statutes or rules now in effect or
hereafter to be enacted controlling privileged
communications?

16. ELECTRONIC
COMMUNICATION

17. ELECTRONIC
COMMUNICATION
The Rules regard electronically stored client
communication as this.

18. ELECTRONIC
COMMUNICATION
The Rules regard electronically stored client
communication as this.
What is privileged?
(Yeah - it’s obvious, but give it a minute to sink
in. That means that those emails and cell phone
calls have to be secure!)

19. GLOSSARY

20. GLOSSARY
“ESI”

21. GLOSSARY
“ESI”
What is the commonly-used abbreviation for
“Electronically Stored Information?”

22. GLOSSARY

23. GLOSSARY
This type of information deals with a particular
data set which describes how, when and by
whom the data was collected, created,
accessed, or modified and how it is formatted
and is fully discoverable.

24. GLOSSARY
This type of information deals with a particular
data set which describes how, when and by
whom the data was collected, created,
accessed, or modified and how it is formatted
and is fully discoverable.
What is “metadata?”
See The Sedona Guidelines: Best Practice
Guidelines & Commentar y for Managing
Information & Records in the Electronic Age.

25. GLOSSARY

26. GLOSSARY
Hash algorithms

27. GLOSSARY
Hash algorithms
What are the numerical values assigned to
individual data files that uniquely identify
each electronic file every time it is moved,
printed, altered or otherwise “handled” by
a computer user?

28. GLOSSARY

29. GLOSSARY
Native format

30. GLOSSARY
Native format
What is the original file format that an
application uses internally when creating a
document, database or other ESI?

31. GLOSSARY

32. GLOSSARY
These files have been deleted and are no
longer listed in the operating system but are
located on a hard drive or other stored
device, in whole or in part, because they have
not yet been overwritten.

33. GLOSSARY
These files have been deleted and are no
longer listed in the operating system but are
located on a hard drive or other stored
device, in whole or in part, because they have
not yet been overwritten.
What are “double deleted” files?

34. GLOSSARY

35. GLOSSARY
Keyword, Boolean, proximity and concept are
four of these.

36. GLOSSARY
Keyword, Boolean, proximity and concept are
four of these.
What are types of searches?

37. GLOSSARY

38. GLOSSARY
These are files that may NOT be “reasonably
accessible” because they require obsolete, no
longer used, or not easily available software.

39. GLOSSARY
These are files that may NOT be “reasonably
accessible” because they require obsolete, no
longer used, or not easily available software.
What are legacy files?

40. THE NEW RULES

41. THE NEW RULES
Though Florida has yet to adopt formal
statewide rules for dealing with electronic
evidence, most State judges, when confronted
with e-discovery issues, do this.

42. THE NEW RULES
Though Florida has yet to adopt formal
statewide rules for dealing with electronic
evidence, most State judges, when confronted
with e-discovery issues, do this.
What is follow the Federal Rules of Civil
Procedure and federal court decisions regarding
e-discovery?

43. THE NEW RULES

44. THE NEW RULES
How a party may be able to recover from an
inadver tent disclosure of privileged
communication.

45. THE NEW RULES
How a party may be able to recover from an
inadver tent disclosure of privileged
communication.
What is the “clawback” provision of FRCP Rule
26(b)(5)(B)?
Rule 25(b)(5)(B) states: “If information produced in discovery is subject to a
claim of privilege or of protection as trial preparation material, the party making
the claim may notify any party that received the information of the claim and the
basis for it. After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use or disclose
the information until the claim is resolved; must take reasonable steps to retrieve
the information if the party disclosed it before being notified; and may promptly
present the information to the court under seal for a determination of the
claim. The producing party must preserve the information until the claim is
resolved.”

46. THE NEW RULES

47. THE NEW RULES
The new Federal Rules of Civil Procedure
dealing with e-discovery went into effect on
this date.

48. THE NEW RULES
The new Federal Rules of Civil Procedure
dealing with e-discovery went into effect on
this date.
What is December 1, 2006? (Not so “new,” are
they?)

49. THE NEW RULES

50. THE NEW RULES
The five-part e-discovery rulings in this case,
which predates the 2006 FRCP, highly
influenced the “new” Rules as well as the
courts that have interpreted the Rules.

51. THE NEW RULES
The five-part e-discovery rulings in this case,
which predates the 2006 FRCP, highly
influenced the “new” Rules as well as the
courts that have interpreted the Rules.
What is Zubulake v. USB Warburg?

52. E-DISCO INFERNO

53. E-DISCO INFERNO

54. E-DISCO INFERNO
The so-called “Zubulake duty” refers to the
lawyer’s duty to do this under FRCP 26(f)?

55. E-DISCO INFERNO
The so-called “Zubulake duty” refers to the
lawyer’s duty to do this under FRCP 26(f)?
What is becoming fully familiar with the client’s
data retention architecture?

56. E-DISCO INFERNO
The so-called “Zubulake duty” refers to the
lawyer’s duty to do this under FRCP 26(f)?
What is becoming fully familiar with the client’s
data retention architecture?
Rule 26(f) requires that the parties to litigation
meet and confer early in the litigation to discuss
the scope of and agree on rules for discovery,
during which counsel must be prepared to provide
details regarding the location of and nature of any
relevant ESI.

57. E-DISCO INFERNO

58. E-DISCO INFERNO
These are two of the many places where
relevant data may be stored (e.g. where the
lawyer will be expected to look) .

59. E-DISCO INFERNO
These are two of the many places where
relevant data may be stored (e.g. where the
lawyer will be expected to look) .
We will accept any two of these:
What are tapes, hard drives, portable storage
devices (thumb/jump drives), networks, mobile
devices (cell phones, pager s), home
computers, PBX (voicemail) systems, RAID
arrays, or servers?

60. E-DISCO INFERNO

61. E-DISCO INFERNO
How Judge Sheindlin defines “gross negligence” in preserving
electronic evidence in Pension Comm. of the Univ. of Montreal
Pension Plan v. Banc of America Sec., LLC, 2010 WL 184312
(S.D.N.Y. Jan. 15, 2010).

62. E-DISCO INFERNO
How Judge Sheindlin defines “gross negligence” in preserving
electronic evidence in Pension Comm. of the Univ. of Montreal
Pension Plan v. Banc of America Sec., LLC, 2010 WL 184312
(S.D.N.Y. Jan. 15, 2010).
“After a discovery duty is well established, the failure to
adhere to contemporary standards can be considered
gross negligence... (T)he following failures support a finding of gross
negligence...: to issue a written litigation hold, to identify the key
players and to ensure that their electronic and paper records are
preserved, to cease the deletion of email or to preserve the
records of former employees that are in a party’s possession,
custody, or control, and to preserve backup tapes when they are
the sole source of relevant information or when they relate to key
players, if the relevant information maintained by those players is
not obtainable from readily accessible sources.

63. E-DISCO INFERNO

64. E-DISCO INFERNO
Ralph Losey, in his book Introduction to e-
Discovery, calls this “the number one trend” in
e-discovery.

65. E-DISCO INFERNO
Ralph Losey, in his book Introduction to e-
Discovery, calls this “the number one trend” in
e-discovery.
What is abuse of e-discovery?
The large volume of information that is stored
electronically by many companies has led
some lawyers to make discovery battles more
important than the actual merits of the case.

66. E-DISCO INFERNO

67. E-DISCO INFERNO
This is the estimated percentage of electronic
records that are never converted to paper in the
ordinary course of business.

68. E-DISCO INFERNO
This is the estimated percentage of electronic
records that are never converted to paper in the
ordinary course of business.
What is 80%?
That means... Most of the time you cannot
authenticate a printout of an e-mail as “kept in
the ordinary course of business.”

69. E-DISCO INFERNO

70. E-DISCO INFERNO
This is a common way that lawyers inadvertently
waive privilege.

71. E-DISCO INFERNO
This is a common way that lawyers inadvertently
waive privilege.
We will take either:
1. What is producing a privileged email or
other electronic document?
2. What is failing to follow the client’s
document retention policy?

72. E-DISCO INFERNO

73. E-DISCO INFERNO
In the context of e-discovery spoliation, courts have
sometimes allowed this erosion of attorney-client
privilege.

74. E-DISCO INFERNO
In the context of e-discovery spoliation, courts have
sometimes allowed this erosion of attorney-client
privilege.
What is the mandatory waiver of privilege during the
deposition of counsel regarding document
preservation, collection and production?

75. E-DISCO INFERNO

76. E-DISCO INFERNO
Lawyers most often make inadvertent
disclosures of privileged information by doing
this.

77. E-DISCO INFERNO
Lawyers most often make inadvertent
disclosures of privileged information by doing
this.
What is treating electronic discover y
nonchalantly?
See Gragg v. International Management Group, Inc.,
2007 WL 1074894 (N.D.N.Y April 2007) (determining
that in-house counsel, who delegated preparation and
production of ESI to non-attorney assistant, and outside
counsel, who forwarded the same to plaintiff ’s attorney
without reviewing the production, had voluntarily
waived privilege through their nonchalance).

78. E-DISCO INFERNO

79. E-DISCO INFERNO
Metadata is useful in establishing or discounting
this.

80. E-DISCO INFERNO
Metadata is useful in establishing or discounting
this.
What are the legal elements of a claim or
defense (especially when used to show
knowledge, notice or spoliation of evidence)?

81. E-DISCO INFERNO

82. E-DISCO INFERNO
Useful or not, to be admitted into evidence
metadata must also be this.

83. E-DISCO INFERNO
Useful or not, to be admitted into evidence
metadata must also be this.
Relevant and properly authenticated.

84. E-DISCO INFERNO

85. E-DISCO INFERNO
This court specifically ordered metadata
production by enumerating relevant metadata
fields, thereby creating a blueprint for metadata
production for other courts.

86. E-DISCO INFERNO
This court specifically ordered metadata
production by enumerating relevant metadata
fields, thereby creating a blueprint for metadata
production for other courts.
What is the Middle District of Florida?
See In re Seroquel Prods. Liab. Litig., 2007 WL
219989 (M.D. Fla., Jan. 26, 2007) (U.S. Magistrate
Judge David A. Barker found that sanctions were
warranted for the defendant's "purposefully sluggish"
ESI production and failure to produce "usable" or
"reasonably accessible" documents).

87. E-DISCO INFERNO

88. E-DISCO INFERNO
Issued in August 2009, the first set of e-discovery
rules, following in large part the Federal Rules, sets
the standard for e-discovery in Florida State courts.

89. E-DISCO INFERNO
Issued in August 2009, the first set of e-discovery
rules, following in large part the Federal Rules, sets
the standard for e-discovery in Florida State courts.
What are the Complex Business Litigation Division
Amended Procedures for the Thirteenth Judicial
Circuit Court in and for Hillsborough County,
Florida?
Orange County may be next if the judges have their
way. Bottom line - Florida judges “get” e-discovery!

90. FINAL JEOPARDY:
“NOT MY JOB”

91. FINAL JEOPARDY:
“NOT MY JOB”
In In re A & M Florida Properties II, LLC, 2010 WL
1418861 (Bankr. S.D.N.Y. Apr. 7, 2010), Plaintiff ’s
lawyers were found to be this when they over-
delegated to their client the lawyers’ duty to find
and collect digital evidence.

92. FINAL JEOPARDY:
“NOT MY JOB”
In In re A & M Florida Properties II, LLC, 2010 WL
1418861 (Bankr. S.D.N.Y. Apr. 7, 2010), Plaintiff ’s
lawyers were found to be this when they over-
delegated to their client the lawyers’ duty to find
and collect digital evidence.
What is negligent?
While the Bankruptcy Court found no bad faith on
the part of the lawyers or their clients, the Court
determined that the lawyers’ failure to adequately
educate their clients regarding the need to preserve
and search email archives was negligent.

93. Suzanne D. Meehle
Email: suzanne@innesmeehle.com
Web: http://www.innesmeehle.com