EDiscovery Outline Discovery Interrogatories Document Requests Depositions Subpoenas Court Orders Letter Requests Emal(active) storage- where

where could it be Server(most common is Microsoft exchange server) Locally on a hard drive(.msg, .pst, .ost-local copy of your email address)could be on your laptop desktop pda The Clous-archives Archives on site- Baracuda-Vault Paper Chrono Personal email(gmail) Backups(not active) External media Journaling- stored in archive (not at store on server managed by google)- if user deletes it in exchange there will be no change in original Rule 26f Conference- meet and confer-scope of preservation At conference attnys are to address Preservation of evidence(ESI) The discovery or disclosure ofESI The form that the production will take A procedure for retrieving inadvertently produced privileged information Attnys have the duty to cooperate in order to achieve the just and speedy resolution of the case EDRM- electronic reference model

Information Management

Identification

Preservation and Collection

Processing Review Analysis

Production

Presentation

PROCESSING- after you collect data and before review 1. De-Nisting- removing application/operating system data- anything not user docs 2. De-Duplication- Globally or by custodian-get rid of duplicate docs-exact duplicates 3. Culling- Search terms-dates 4. Native form- .Tift form 5. Review Natively 6. Convert Files Global de-dupe is best- better for cost and less docs to review Custodian dedupes only custodian files Databases 1. How do I extract data-what form will it be in 2. How do I ensure that it is being preserved Sharepoint-knowledge sharing-wikis-twikis How is library set up for sharepoint Most importantly ask for direct access Ask which key custodians use which Review directly in platform itself

Data Sources

Recurring terms ESI-electronically stored information Spoliation/sanctions (Rule 37)-motion for sanctions-Green v McClendonspoliation is the destruction or significant alteration of evidence, or the failure to preserve property for anothers use as evidence in a pending or reasonably forseeable litigation Rule 37 B- says there can be a range of sanctions, including dismissal or judgement by default, preclusion of evidence, imposistion of adverse inference, or assessment of attny fees and costs. Court has authority to sanction based on inherent authority or violation of a court order, Sanctions may be imposed on an attny party or both. Metadata-data about data PSTs- containers of email. Store emails on computer Back up tapes-used to store copies of ESI for use when restoration or recovery is required. ESI on back up tape is generally recorded and stored sequentially rather than randomly meaning in order to locate and access a specific file or data set all esi on the tape preceding the target must first be read-a time consuming and inefficient process. Backup tapes typically use data compression which increases restoration time and expense, given the lack of uniform standards governing data compression o In order to read these files they must first be uncompressed and restored to the operating system o Back up tape restoration- to restore is to transfer data from a back uo medium (such as tapes) to an online system often for the purpose of recovery from a problem, failure or disaster. Restoration of archival media is the transfer of data from an archival store to an online system for purposes of processing(such as query analysis extraction or disposition of that data) o Archival restoration systems may require not only data restoration but also replication of the original hardare and software operating environmeny. Restoration of systems is often called recovery Back up tape schedule overwrite rotation schedule recycle- describes the process whereby an organizations backup tapes are over written with new data usually on fixed scheduled jointly by records management, legal, and IT sources. For example, the use of nightly backup tapes for each day of the week with the daily backuo for a particular day being overwritten on the same day of the following week weekly and monthly backups store offsite for a specific period of time before being placed back in rotation. o What is your overwrite policy? o Is it full or incremental? o Physical tapes vs tape library vs virtual backups

What is in storage Where are the back up tapes Are they labeled Can you restore just one backup tape- depends if they are labeled, what was the back up policy and what was the format Archive data-is info an organization maintains for long term storage and record keeping purposes but which is not immediately accessible to the user of the computer system. Archival data may be written to removable media, electronic storage(the Cloud) or may be maintained on system harddrives. Some systems allow users to retrieve archival data directly while other systems require the intervention of IT o PST- personal folder files is the format used by Microsoft outlook to store data locally. You can use multiple pst files with one copy of outlook simultaneously-holds emails contacts notes to do list calendars and other outlook data. Basically its a container of email stored on a hard drive or server other than the exchange server o Ost is an offline folder in Microsoft outlook. Offline folders make it possible for the user to work offline and the to synchronize changes with the exchange server the next time they connect. The ability to work offline is useful in environment Compression- ZIP and RLE reduce th size of files saving both storage space and reducing bandwith requires for access and transmission. Data compression is widely ised in backup utilities spreadsheet applications and database management systems. Compression generally eliminates redundant information and or predicts where changes will occur Federal rules of civil procedure Journaling: A function of electronic communication systems (such as Microsoft Exchange and Lotus Notes) that copies sent and received items into a second information store for retention or preservation. Because Journaling takes place at the information store (server) level when the items are sent or received, rather than at the mailbox (client) level, some messagerelated metadata, such as user foldering (what folder the item is stored in within the recipients mailbox) and the status of the read flag, is not retained in the journaled copy. The Journaling function stores items in the systems native format, unlike email archiving solutions, that use proprietary storage formats designed to reduce the amount of storage space required. Journaling systems may also lack the sophisticated search and retrieval capabilities available with many email archiving solutions. See Email Archiving. o o o o o RULE 34. PRODUCING DOCUMENTS, ELECTRONICALLY STORED INFORMATION, AND TANGIBLE THINGS, OR ENTERING ONTO LAND, FOR INSPECTION AND OTHER PURPOSES

o (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): o (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: o (A) any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilationsstored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or o (B) any designated tangible things; or o (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. o (b) Procedure. o (1) Contents of the Request. The request: o (A) must describe with reasonable particularity each item or category of items to be inspected; o (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and o (C) may specify the form or forms in which electronically stored information is to be produced. o (2) Responses and Objections. o (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. o (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. o (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. o (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested formor if no form was specified in the requestthe party must state the form or forms it intends to use. o (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: o (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

o (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and o (iii) A party need not produce the same electronically stored information in more than one form. o (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. o (Rule 37)-motion for sanctions o Rule 26- motion to compel certify completeness-(1) Initial Disclosure. o (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: o (i) the name and, if known, the address and telephone number of each individual likely to have discoverable informationalong with the subjects of that informationthat the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; o (ii) a copyor a description by category and locationof all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; o (iii) a computation of each category of damages claimed by the disclosing partywho must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and o (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. o (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure: o (i) an action for review on an administrative record; o (ii) a forfeiture action in rem arising from a federal statute; o (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; o (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; o (v) an action to enforce or quash an administrative summons or subpoena; o (vi) an action by the United States to recover benefit payments; o (vii) an action by the United States to collect on a student loan guaranteed by the United States;

o (viii) a proceeding ancillary to a proceeding in another court; and o (ix) an action to enforce an arbitration award. o (C) Time for Initial DisclosuresIn General. A party must make the initial disclosures at or within 14 days after the parties Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. o (D) Time for Initial DisclosuresFor Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. o (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. o (2) Disclosure of Expert Testimony. o (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. o (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written reportprepared and signed by the witnessif the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: o (i) a complete statement of all opinions the witness will express and the basis and reasons for them; o (ii) the facts or data considered by the witness in forming them; o (iii) any exhibits that will be used to summarize or support them; o (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; o (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and o (vi) a statement of the compensation to be paid for the study and testimony in the case. o (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:

o (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and o (ii) a summary of the facts and opinions to which the witness is expected to testify. o (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: o (i) at least 90 days before the date set for trial or for the case to be ready for trial; or o (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. o (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e). o (3) Pretrial Disclosures. o (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment: o (i) the name and, if not previously provided, the address and telephone number of each witnessseparately identifying those the party expects to present and those it may call if the need arises; o (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and o (iii) an identification of each document or other exhibit, including summaries of other evidenceseparately identifying those items the party expects to offer and those it may offer if the need arises. o (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so madeexcept for one under Federal Rule of Evidence 402 or 403is waived unless excused by the court for good cause. o (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served. o (b) Discovery Scope and Limits. o (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defenseincluding the existence, description, nature,

o o

o o o

o o

custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (2) Limitations on Frequency and Extent. (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically Stored Information. 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. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and

o (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. o (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. o (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: o (i) a written statement that the person has signed or otherwise adopted or approved; or o (ii) a contemporaneous stenographic, mechanical, electrical, or other recordingor a transcription of itthat recites substantially verbatim the person's oral statement. o (4) Trial Preparation: Experts. o (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. o (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. o (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: o (i) relate to compensation for the expert's study or testimony; o (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or o (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. o (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only: o (i) as provided in Rule 35(b); or

o (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. o (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: o (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and o (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions. o (5) Claiming Privilege or Protecting Trial-Preparation Materials. o (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: o (i) expressly make the claim; and o (ii) describe the nature of the documents, communications, or tangible things not produced or disclosedand do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. o (B) Information Produced. 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. o (c) Protective Orders. o (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pendingor as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: o (A) forbidding the disclosure or discovery; o (B) specifying terms, including time and place, for the disclosure or discovery; o (C) prescribing a discovery method other than the one selected by the party seeking discovery;

o (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; o (E) designating the persons who may be present while the discovery is conducted; o (F) requiring that a deposition be sealed and opened only on court order; o (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and o (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. o (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. o (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. o (d) Timing and Sequence of Discovery. o (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. o (2) Sequence. Unless, on motion, the court orders otherwise for the parties and witnesses convenience and in the interests of justice: o (A) methods of discovery may be used in any sequence; and o (B) discovery by one party does not require any other party to delay its discovery. o (e) Supplementing Disclosures and Responses. o (1) In General. A party who has made a disclosure under Rule 26(a) or who has responded to an interrogatory, request for production, or request for admissionmust supplement or correct its disclosure or response: o (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or o (f) Conference of the Parties; Planning for Discovery. o (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicableand in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). o (2) Conference Content; Parties Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1);

o o

o o o

o o o o

o o

discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties views and proposals on: (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (D) any issues about claims of privilege or of protection as trialpreparation materials, includingif the parties agree on a procedure to assert these claims after productionwhether to ask the court to include their agreement in an order; (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: (A) require the parties conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own nameor by the party personally, if unrepresented and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of

o o o o o

the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.

Zubalake Sedona Hold Order/Litigation Hold Motion to Compel/Motion for sanctions Forensic examination-The scientific analysis of computer media for legal reasons. Typically forensic analysis is intended to discover whether responsive documents or other data have been deleted from a machine. Special software, equipment, and techniques are used to detect hidden information. Such investigations have been more common in criminal proceedings than in litigation. Strict protocols must be employed to avoid evidence spoliation. Green v McClendon

I.

Facts- K dispute. Green the plaintiff has an art gallery. Defendant couple go to art show and agree to pay 4.2million for a apainting. Defendants give deposit and never pay. Plaintiff assets breach of K. Plaintiff says no K-500k was a refundable deposit.

Procedural hx- Plaintiff served first document request on dec 23 2008. Among other things the plaintiff requested all documents concerning the work and concerning Green or transactions with green from jan 2007 onward. The reguest- explicitly incorporated local civil rule 26.3 which defines document to include electronic or computerized data compilations. FRCP 34- fed rule civil procedure producing esi The production-defendatn made representation that they conducted thorough searches for responsive documents and produced everything. But after first motion to compel judge ordered 26 certification completeness. After order defendant produced two page updated excel sheet. Plaintiff requested addl info on spreadsheet- date creation dates modified and name who created or modified Wanted METADATA. Got couple versions. Plaintiff filed motion to compel order authorizing forensic examination and sanctions. Defendant then said son of friend reinstalled OS. Plaintiff withdrew forensic. Went forward with sanction-adverse inference. Adverse inference- Unfavorable deduction that may be drawn by the fact-finder from the failure of a party to produce a normally expected witness or other evidence. It may be presumed that the failure to produce was because the testimony or other evidence would have been harmful to that party. Elements for adverse inference 1. The party having control over the evidence had an obligation to preserve it at the time it was destroyed a. The obligation to preserve evidence arises when a party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation b. Normally arises when a complaint is filed usually the trigger date2. The records were destroyed with a culpable state of mind a. NY- ordinary negligence b. Failure to implement litigation hold is gross negligence 3. That the destroyed evidence was relevant to the partys claim or defense such that a trier of fact could find that it would support that claim or defense(moving party must prove) a. If there is bad faith can we infer relevance? NO- when the destruction is negligent or reckless relevance must be proven by the party seekeing the sanctions-the party seeking the inference must adduce sufficicient evidence from which trier of fact could infer destroyed evidence would have been of the nature alleged by the party affected by its destruction Action to take Trigger date

Issue written litigation hold order Identify relevant data sources -Ensure compliance monitor compliance

Preservation Obligation runs first to counsel who has a duty to advise his client of the type of info potentially relevant to the lawsuit and of the necessity of preventing its destruction moreover responsibility heightened in this age of ediscovery counsel failed to inform, failed too advise, and failed to issue litigation hold in addition there is no justifying the delay in providing relevant documents to the plaintiff once counsel received the cds containing defendant computer files. In violation of the obligation to supplement discovery pursuant to 26 e counsel waited until plaintiff specifically demanded addl info about the spreadsheet and other e-stored docs before searching the files which were by then in counsels possession NO ADVERSE INFERENCE IN MCCLENDON COULDNT PROVE MISSING DOCS UNFAVORABLE II Preservation-important- sanctions for-negligent, haphazard uncoordinated purposely sluggish willful Fines Qualcomm-biggest sanction levied on counsel and corp and client-emails requested from Qualcomm who said they didnt exist 8million dollar sanction and lawyers got referred to BBO Adverse Inferences Zubulake-adevrse inference in gender discrimination led to 29.3 mill Coleman- adverse inference 1.45 bil Zubulake Facts- woman sued UBS for sex discrim. April put on notice ? on the trigger date filed Aug def should have known by then. In Aug counsel for UBS give verbal instruction to preserverelevant datarequired by common law. June Zubulake serves discovery request- #28 requested-all documents concerning any communication by or between UBS employees concerning plaintiff. Importantly she defined doc to include electronic or computerized data compilations(came before 2006 ammendment to frcp). In July UBS produces 100 emails(Zubulake said she sent or received 200 a day). In septmember parties agre UBS agreed unconditionally to produce emails from five key employees.(shouldnt have agreed to this) UBS produced no more emails and said original 10 were all. UBS didnt search back up tapes saying it was prohibitive est 300k

Zubulake preservation instruction- in house counsel advised relevant ubs employees to preserve and turn over to counsel all files records or other written memo or docs concernin allegations in claim or Zubuakes employment o Didnt mention edocs or back ups Two issues o Failure to preserve even with respect to their own backup policy o Failure of counsel to what a key custodian meant be archival-active data not back up tapes-(archive active data) Zubulake I

III.

Cost Shifting This case provides a textbook example of the difficulty of balancing the competing needs of broad discovery and manageable costs Recall UBS didnt search back up tapes despite unconditional agreement to produce email from 5 key custodians. They said it was cost prohibitive estimating cost production backups 300k Zubulake insisted on production Also SEC requires preservation so UBS backed up it two distinct ways, backup tapes and optical disks UBS made snapshots of all emails full backups They did so daily weekly and monthly UBS sought cost shifting RULE 26(c) allows a court to protect litigants from undue burden or expense Supreme court has said presumption is that the responding party must bear the expense of complying with discovery requests- only consider cost shifting if undue burden or expense In Zubulake I undue when outweighs its likely benefit, taking into account the needs of the case the amount in controvery the parties resources the importance of the issues at stake in the litigation and the importance of proposed discovery in resolving the issues Undue- turns on whether the data is accessible or inaccessible ZUBULAKE I TEST 7 FACTOR-COST SHIFTING WEIGH 1st 2 weighted more heavily MARGINAL UTILITY TEST 1. The extent to which the request is specifically tailored to discovery of relevant information 2. The availability of such information from other sources 3. The total cost of production compared to the amt in controversy 4. The total cost of production compared to te resources available to each party 5. The relative ability of each party to control costs and its incentive to do so 6. The importance of the issues at stake in the litigation

7. The relative benefits to the parties of obtaining the information DECIDING disputes regarding the scope and cost of ediscovery requires 3 step analysis 1. Understanding the producing partys IT system and what is inaccessible vs accessible 2. Understanding of what might be found on the inaccessible data. Conduct sample (cost shifting appropriate only when data is considered unaccessible 3. Seven factor test Zubulake II-In denying Zubulakes motion, the court determined that Zubulake failed to proffer any reason for disclosing the contents of Behnys deposition. The court ruled that Zubulake had no clear duty to disclose the information contained within the deposition, and it thus denied her motion. At first glance, it would seem that this case has little, if anything, to do with ediscovery. However, if one digs a little deeper, we see that there is one important e-discovery lesson to be learned. Namely, e-discovery issues often are interrelated to other areas of law. Thus, it is important to keep in mind the interplay between e-discovery and other legal theories when seeking to compel disclosure of electronic information. In this specific opinion, the ediscovery issues played out in the context of securities law. In other cases that have been discussed on this blog, e-discovery issues played out in the context of internet law, employment law, intellectual property, and construction law, to name a few. ZUBULAKE III

IV

After sampling Zubulake movd to compel UBS produce responsive email from all 94 backup tapes at its own cost, UBS says only 77 tapes in the sample with duplicates eliminated there were 6,203 emails After running search terms UBS produced 600 emails-68 were highly relevant per zubulake so she argued UBS should bear cost but none proved direct evidence of discrimination Total cost $19,003.43 further restoration would be 273,649.39 Weighing factors 1 and 2 zubulakes request narrowly tailored and relevant emails were only on backup tapes. Thus marginal utility of addl discovery may be high Factors 3,4 and 5 showed cost was very high ? was it disproportionate with value of case- Judge ruled no and therefore cost of lost evidenve weighed against cost shifting 25% cost shift to zubulake but only the restoration o does it encourage ediscovery blackmail where plaintiffs with small claims will propound ediscovery requests for relevant data that far exceeds the amt in controversy-essentially forcing defendants to settle

1. 2. 3. 4. 5. 6. 7. V.

ZUBULAKE II LED TO 2006 ammendment to FRCP 26(b)(2)(C)(iii)advisory committee notes states that with good cause a party must search sources that are not reasonably accessible considering this factored test The specificity of the discovery request The quantity of info available from other and more easily accessed sources The failure to produce relevant info that seems likely to have existed but is no longer available on a more easily accessed sources The likelihood of finding relevant responsive info that cannot be obtained from other more easily accessed sources Predictions as to the importace and usefulness of the further info The importance of the issues at stake in litigation and The parties resources Zubulake IV In restoration process parties found certain backup tapes were missing It was not until Aug 2002 UBS outside counsel orally instructed UBS IT to stop recycling backup tapes Zubulake seeks sanctions Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents. A s a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of "key players" to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes. An adverse inference instruction is an extreme sanction that should not be given lightly, and set out the three elements required for an adverse inference instruction: o (1) an obligation to preserve the evidence that was destroyed; o (2) that the evidence was destroyed with a "culpable state of mind" and

o (3) that the destroyed evidence was "relevant" - i.e., that it would have been both relevant and favorable to the injured party's claims. (including negligence) o Only where there is bad faith can relevance and prejudice be presumed o The court determined that, although Zubulake had established the first two elements, she failed to prove the third. As a general rule a party need not preserve all backuptapes even when it reasonably anticipates litigation SCOPE o Extends to key players o Not multiple identical copies o Must suspend routine document retention/destruction policy o Must put in place a litigation hold o Not necessarily backup tapes unless they are accessible Except if a company can identify where particular employee documents are stored on backup tapes then the tapes storing the documents of key players to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backuo tapes. Zubulake V What counsel and parties must do o Duty to preserve does not end at litigation hold Counsel must take affirmative steps to moitor compliance so that all sources of discoverable information are identified and searched 5 Guidelines o 1. Issue a hold order o 2. Communicate with key players o 3. Locate relevant records o 4. Ensure that electronic documents are preserved and produced o 5. Periodically reissue, and revise if necessary the litigation hold Litigation hold doe not apply to inaccessible backup tapes unless the party can identify where relevant data is located and the information is not otherwise accessible Adverse inference imposed in V Pension Committee

VI.

VII

A plaintiffs duty is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation The duty to preserve e-docs and issue a litigation hold for the plaintiffs in pension committee arose at the time the hedge funds went bankruot notwithstanding that some plaintiffs had not yet brought suit or retained counsel The fact that other plaintiffs were retaining counsel and bringing suit at the time of bankruptcy triggered the duty to preserve and issue a hold order for all potential plaintiffs Pension plaintiffs counsel instreucted begin document collection and instructed them to be over rather than under inclusive and that edocs should be included o Judge schindlin said grossly negligent- didnt direct to preserve all relevant electronic records. AND they placed total reliance on individual employees to search and select records that the employee believed were responsive w/o supervision from counsel LOOK AT TOTALITY OF CIRCUMSTANCES TO DETERMINE CULPABILITY Negligence o Failure to collect records from all players o Failure to take all appropriate measures to preserve ESI o Failure to assess the accuracy and validity of search terms Gross Negligence- has been described as a failure to exercise even that care which a careless person would use- Most courts find that gross negligence is something more than negligence-and differs from ordinary negligence only in degree and not in kind o Failure to write a written litigation hold o Failure to identify all key players and ensure that their paper and electronic records are preserved Failure to cease automatic deletion of emails from key players Failure to cease deletion of email or to preserve records of former employees in the partys possession or control o Failure to preserve backup tapes When they are the sole source of relevant info When they relate to key players if the info from the key players is not obtained from readily accessible sources o Submission of misleading or inaccurate declarations o Failure to collect records either paper or electronic from key players o Delegation of responsibilities for search and collection to unqualified employees o Lack of oversight of employee collection Willful- Intentional destruction of relevant records after the duty to preserve attaches

PENSION APPLIES ZUBULAKE TEST SEVERE SANCTION ( dismissal, preclusion, or adverse inference, the innocent party must prove) o Spoliating party had control over the evidence and an obligation to preserve it at the time of destruction o Acted with a culpable state of mind upon destroying or losing evidence and o The missing evidence was relevant to the innocent partys claim or defense and the innocent party was prejudiced by its absence Pension takes a more flexible approach to third prongwhen the spoliating party acts in bad faith or is grossly negligent, relevance and prejudice are presumed, and the burden shifts to the spoliating party to rebut this presumption to avoid a severe sanction When the spoliating party is negligent the innocent party must prove both relevance and prejudice to justify imposition of a severe sanction- in other words the innocent party must present extrinsic evidence tending to show that the destroyed emails would have been favorable to its case courts must take care not to hold the prejudiced party to too strict a standard of proof regarding the likely contens of the destroyed/unavailable evidence because doing so would allow parties who have destroyed evidence to profit from that destruction o The court should always impose the least harsh sanction that can provide an adequate remedy. The choices include-from least to most harsh Further discovery Cost shifting Fines Special jury instructions Preclusion Entry of default judgement or dismissal(terminating sanctions) o Judge Schindlin emphasizes the need for cooperation with opposing counsel and the need to be transparent with ediscovery procedures Each party should be prepared to share info regarding which files were searched, how the search was conducted, who was asked to search, what they were told and the extent of any supervision

VII Hold Orders In re Napster-Facts- hank sent this to me attny communications- please be aware of our email policy- we dont save or retain any documents

o This in essence was a destruction order = gross negligence - led to preclusion order, adverse inference instruction and attnys fees 3M innovative Properties Management- 3m sued Tomar for patent infringement. An employee of the defendant said he was sole inventor-in response to discovery requests he said he was only one with relevant docsdefendant did not issue retention policy or litigation hold because witness said it would only apply to him-he didnt inquire- court didnt like this said even if he was sole inventor addl data could be relevant Doe v Norwalk- suit sexual harassment by profo general retention policy was not followed with respect to former employees, o college registrar was unaware of the case until recently and had never been asked to search for records relevant to the case o the colleges head of human resources had never heard of a litigation hold and never received any preservation instructions regarding the case o Judge entered adverse inference instruction HOLD ORDERS_ ARE THEY PRIVILEGED? o Litigation hold orders are usually not discoverable because of the attny-client privilege and the work product doctrine (Major Tours) o However a party is entitled to discover on the catagories of data sources counsel instructed a party to preserve and collect and the mechanics to do so o Hold orders ARE discoverable when a party shows its opposing party spoliated evidence In Major Tours 30b6 wintness testified he was probably told by atty to preserve certain emails but he didnt save anything. Another witness testified no1 had ever spoken to him about a hold order- The defendants were ordered to produce different litigation hold orders and identify the recipients of those letters Guideline 1 o A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation. Guideline 2 o Adopting and consistently following a policy or practice governing an organizations preservation obligations are factors that may demonstrate reasonableness and good faith. Guideline 3 o Adopting a process for reporting information relating to a probable threat of litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.

Guideline 4 o Determining whether litigation is or should be reasonably anticipated should be based on a good faith and reasonable evaluation of relevant facts and circumstances. Guideline 5 o Evaluating an organizations preservation decisions should be based on the good faith and reasonableness of the decisions undertaken (including whether a legal hold is necessary and how it should be executed) at the time they are made. Guideline 6 o The duty to preserve involves reasonable and good faith efforts, taken as soon as is practicable and applied proportionately, to identify and, as necessary, notify persons likely to have relevant information to preserve the information. Guideline 7 o Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort. Guideline 8 o In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have relevant information, and when the notice: o (a) Communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective o (b) Isinanappropriateform,whichmaybewritten o (c) Provides information on how preservation is to be undertaken o (d) Is periodically reviewed and, when necessary, reissued in either its original or an amended form, and o (e) Addresses features of relevant information systems that may prevent retention of potentially discoverable information. Guideline 9 o An organization should consider documenting the legal hold policy, and, when appropriate, the process of implementing the hold in a specific case, considering that both the policy and the process may be subject to scrutiny by opposing parties and review by the court. Guideline 10 o Compliance with a legal hold should be regularly monitored. Guideline 11 o Any legal hold policy, procedure, or practice should include provisions for releasing the hold upon the termination of the matter at issue so that the organization can adhere to policies for managing information through its useful lifecycle in the absence of a legal hold.

VII

Federal Rules A safe harbor limit on sanctions under Rule 37 for the loss of electronically stored information as a result of the routine operation of computer systems. Electronically Stored Information. 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. Pre-Trial Conferences; Scheduling; Management 16 (b) (3) (B) Contents of the Order-Permitted Contents. The scheduling order may: o ii. Modify the extent of discovery; o iii. Provide for disclosure or discovery of electronically stored information; o iv. Include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced o 16(c)(2) Attendance and matters for Consideration at a Pretrial Conference. At any pretrial conference, the court may consider and take appropriate action on the following matters: (H) referring matters to a magistrate judge or a master o 16(f)(1)(B) Sanctions On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: Is substantially unprepared to participate-or does not participate in good faithin the conference Rule 34(a)- In General- Definition of Discoverable Material o A party may serve on any other party a request within the scope of Rule 26(b) : o (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: o (A) any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or o (B) any designated tangible things; or o (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test,

or sample the property or any designated object or operation on it. 34(b)-Contents of the Request..The Request: o (A) must describe with reasonable particularity each item or category or items to be inspected; o (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and o (C) may specify the form or forms in which electronically stored information is to be produced. 34(b)(2)(D)-If a party objects to form of esi o Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested formor if no form was specified in the requestthe party must state the form or forms it intends to use. Rule 34(b)(2)(E)-Unless parties agree otherwise court will order production in form o A party who produced documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; o If a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form in which it is ordinarily maintained, or in form or forms that are reasonably usable; and o A party need not produce the same electronically stored information in more than one form. Rule 33(d)- Option to produce Business Records. o Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records . . . Rule 26(a)(1)(B) Initial Disclosures must include:

o A copy of, or a description by category and location of, all documents, electronically stored information, data compilations, and tangible things that are in the possession, custody or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment; f) Conference of the Parties; Planning for Discovery.

(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicableand in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. (3) Discovery Plan. A discovery plan must state the parties views and proposals on: o what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made; o (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; o (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; o (D) any issues about claims of privilege or of protection as trial-preparation materials, includingif the parties agree on a procedure to assert these claims after productionwhether to ask the court to include their agreement in an order; o (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and o (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c). (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule: o (A) require the parties conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and

o (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. o (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own nameor by the party personally, if unrepresentedand must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is: o (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; o (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and o (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Rule 26(b)(2)- . Discovery of Electronically Stored Information from Sources that are not Reasonably Accessible 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. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If the showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. Rule 26(b)(5)(B)- The Procedure for Asserting Claim of Privilege or Work Product Protection After Production Information Produced. If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation

material, the party making the claim may notify any party that received 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 and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. VIII METADATA- Not required by Rule 34 production but if can show relevancy may but then weigh unduly burdensome- moving party must request it often prior to any production Metadata describes the history, tracking, or management of an electronic document. It includes hidden text, formatting codes, formulae, and other information associated with an electronic document.--Metadata in Court, by John Isaza, November 2010 There are three types of Metadata o Substantive Metadata (aka, Application metadata); Examples would include track changes, modifications to documents, and instructions to the computer how to display spacing and fonts; it is there even if not seen. o System Metadata: Examples include file names and extensions, sizes, creation dates, and latest modification dates. Ex. Rep. Chris Lee Photograph Ex. Word Document Ex. Email: o Embedded- Embedded metadata consists of text, numbers, content, data, or other information that appears in native files with spreadsheet formulas, hidden columns, hyperlinks, references and fields, and database information. Photographs- United States v. Welton, 2009 US Dist. Lexis 110657 (C.D. Cal. 2009) o Stack of child pornography found hidden in the nursery of a church. o Court looked to metadata and found that different dates were found based on the different formats of the exhibits, therefore, it found that different browsers were used to download the images. o Also found that because the documents bear different time and date metadata, they were printed out at various times. o The court distinguished between using the metadata to establish what dates and times the documents were printed out and using the metadata to prove the documents were printed out at different times.

o In Welton, defendants timing in accessing the documents supported a finding of knowing possession, an element of the crime charged. Next the court addressed interstate commerce and considered whether the images were transmitted over the internet. The court relied on the government experts testimony that metadata in the printouts constituted circumstantial evidence that the images were printed from the Internet websites Metadata is part of the public record o Lake v. City of Phoenix, 218 P.3d 1004 (AZ Sup. 2009) o Police officer filed lawsuit over his job performance. o Received his supervisors notes of his work performance and suspected they had been backdated. o He requested the metadata, was refused, and the Supreme court concluded that when a public officer uses a computer to made a public record, metadata is just as much a part of that record as are the words. RULE 34-FORM OF PRODUCTION- Doesnt mention metadata o Rule 34 outlines the following procedure in short: (1) A party may state the form or forms in which ESI is to be produced; (2) If the responding party objects to the requested form or if no form is requested, the responding party must state the form it intends to use; (3) If no form is specified in the request, the responding party must produce ESI in the form in which it is ordinarily maintained or in a reasonably usable form; (4) A party need not produce the same ESI in more than one form. o The language of Rule 34 fails to discuss any explicit requirements for the production of metadata. Further, the Rule itself and the accompanying Advisory Committee notes do not mention whether common production formats, such as PDF or TIFF, satisfy the reasonably usable form option of production. Does Rule 34 Automatically Require the Production of Metadata or Must it be Requested o Williams IThe confusion begins In 2005, the District of Kansas in Williams v. Sprint/United Management Co. (Williams I), 230 F.R.D. 640, 646-57 (D. Kan. 2005) relied on the 2005 Sedona Principles to conclude that there was a general presumption against the production of metadata, but was careful to note the exception that metadata should be produced when the producing party is aware or should be reasonably aware that it is relevant to the dispute. The Williams I court held that "when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their

metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order." Since then, several courts have cited Williams I for the proposition that emerging standards of EDD convey a general presumption against metadata production but those cases have not referenced Williams I for its more expansive holding, which has been expressly rejected by the Eastern District of Kentucky in Kentucky Speedway, LLC v. National Ass'n of Stock Car Auto Racing, Inc., No. 05-138-WOB, 2006 WL 5097354 (E.D. Ky. Dec. 18, 2006). o The Kentucky Speedway court went on to explain that "[n]either default form [of production under Rule 34] is intended to mandate production of metadata or embedded data. The court further noted: "In most cases and for most documents, metadata does not provide relevant information. "In the rapidly evolving world of electronic discovery, the holding of the Williams case is not persuasive." o Another court has held, "[a]lthough Rule 34 speaks of 'data compilations,' it does not explicitly reference or require the production of metadata." Michigan First Credit Union v. CUMIS Ins. Soc'y, Inc., No. 05-74423, 2007 WL 4098213, at *2 (E.D. Mich. Nov. 16, 2007) ("[m]ost metadata is of limited evidentiary value, and reviewing it can waste litigation resources.") (quoting Wyeth v. Impax Labs, Inc., 248 F.R.D. 169 (D. Del. 2006) (citations omitted)); o On balance, the current state of the law would answer this question. Rule 34 does not automatically require the production of metadata, unless it is obvious germane to the litigation or is specifically requested..but.note Scheindlins 2011 case Is a request for metadata required before a party can be compelled to produce it? o Amended Rule 34(b)(1)(C) states that a request for ESI "may specify the form or forms" (i.e. native format, metadata, PDF, TIFF, hard-copy, etc.) in which the sought-after ESI is to be produced. o It is clear that Rule 34(b)(1)(C) does not impose an active requirement on parties to designate a form for production, but it is uncertain whether a party must nonetheless request metadata in order to later receive it o In denying a motion to compel metadata production because the requesting party did not request metadata, the Northern District of Illinois recently held, "[t]here was no request for metadata here until recently-after production. ADC was the master of its production requests; it must be satisfied with what it asked for."

o o

Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 560 (N.D. Ill. 2008). In reaching this holding, Judge Cole relied, in part, on the 2005 Sedona Principles and stated that "[a]bsent a special request for metadata (or any reasonable basis to conclude the metadata was relevant to the claims and defenses in the litigation), and a prior order of the court based on a showing of need," a production in PDF or TIFF format complies with Rule 34. 2005 Version of Principle 12: Unless it is material to resolving the resolution of a dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court. 2007 Version of Principle 12: Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case. SEDONA PRINCIPLE 12 Production should vary according to the facts of a specific case. Specifically, parties and counsel should

consider: (a) what metadata is ordinarily maintained; (b) the potential relevance of the metadata to the dispute; and (c) the importance of reasonably accessible metadata to facilitating the parties review, production, and use of the information.

FRCP 34(b) provides that in the absence of agreement or a specific court order, a producing party should produce electronically stored information either in the form in which it is ordinarily maintained or in a reasonably usable form. to the extent Rule 34(b) seeks information in a reasonably usable form, courts have recognized this to mean that searchability of the documents should not be limited. COURT PROTOCOLS SPEAKING TO WHAT METADATA FIELDS ARE NOT PRESUMPTIVELY DISCOVABLE o The Seventh Circuits Pilot Programs report on Phase One, Principle 2.04 (Scope of Preservation), states that data in metadata fields that are frequently updated, such as last opened dates are not discoverable in most cases The committee reasons, many litigants do not have ESI collection tools that can collect data without affecting such metadata fieldsBecause the last-

opened metadata field rarely will be the key to resolving most civil cases, the increased cost generally will not be warranted. These categories are not placed beyond the scope of discovery in all cases. The purpose of this Principle is simply to require litigants to promptly notify their adversary if they believe their case necessitates preservation and production of ESI in one or more of these categories. However, in raising the preservation of these categories, the demanding party should keep in mind that vague and overly broad preservation demands and responses are discouraged in Principle 2.03. Is a request for metadata required before a party can be compelled to produce it? o Other courts have required a specific request for metadata prior to compelling its production. For example, in D'Onofrio, the District Court for the District of Columbia (Judge Facciola) held that the reproduction of ESI with accompanying metadata was not required where no appropriate request was made for metadata in the first place. D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D.D.C. 2008). Plaintiff claimed she had requested metadata when she requested, any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken. Judge Facciola disagreed, plaintiffs request was not meant to encompass electronic data. Instead it addresses a common concern of paper discovery: the identification of a documents custodian and origin. Judge Facciola pointed to a well-established principle of law in holding, "[t]he court will not compel discovery that has not been sought." o Aguilar v. Immigration & Customs Enforcement Div., 225 F.R.D. 350, 354 (S.D.N.Y. 2008) 30 Latino plaintiffs brought a civil rights class action suit against the Immigration and Customs Enforcement Division (ICE), alleging that ICE employees subjected them to unlawful searches of their homes in violation of the Fourth Amendment. The parties failed to discuss metadata before requesting production of documents. Plaintiffs failed to mention metadata until defendants had almost completed their document collection efforts. Several months after production, Plaintiffs sought emails in TIFF form with corresponding load file containing metadata fields and extracted text.

Defendants responded that they would produce in PDF and agreed to metadata if plaintiffs were able to demonstrate that the metadata associated with a particular document was relevant Court noted that other courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. Ultimately, Plaintiffs needed metadata to prove their case on who knew what and when and, therefore, wanted to know who was bccd on certain emails. They also argued that the underlying metadata would make searching easier. Defendants ultimately ordered to produce any emails.received with metadata attached in a form that contains that metadata. Plaintiffs also sought date created, date modified, and modified by metadata for all Word, Excel, and PowerPoint documents. Court denied this request because the Plaintiffs had not requested metadata before the material was produced and because the court ruled that plaintiffs failed to show why knowing the who and when [of these documents] would have any bearing on whether their constitutional rights were infringed.

o In Wyeth, the District of Delaware held likewise, finding that because the parties never agreed that electronic documents were to be produced in any particular format, the plaintiff satisfied its discovery obligations through its production of TIFF files. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006). The court noted the general presumption against the production of metadata. o BUT The Kansas District Court ordered a defendant to reproduce its ESI in native format with metadata, despite the fact that the plaintiff did not initially request metadata. White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., No. 07-2319-CM, 2008 WL 3271924, at *9-11 (D. Kan. Aug. 7, 2008). Responding to its discovery obligations, the defendant converted its ESI into PDF files and printed out hard copies for production. In its analysis, the court applied Rule

34(b)(2)(E)(ii), which provides that if a request does not specify a form for production, the responding party has the option of producing ESI either in a form in which it is "ordinarily

maintained" or a "reasonably usable" form. The court found that the PDF printouts did not meet the standard of "reasonably usable", noted the plaintiff's demonstrated need for the metadata, and ordered its production.
Are PDF and TIFF reasonably usable forms of production? o The Eastern District of New York has su The District of Columbia followed yet another approach to the "reasonably usable" issue and held that the production of ESI in TIFF or PDF format satisfied amended Rule 34, unless the defendants could demonstrate that a production in native format "[met] the criteria of 'reasonably usable', whereas the PDF or TIFF formats [did] not". United States v. O'Keefe, 537 F. Supp. 2d 14, 23 (D.D.C. 2008). o ggested a strict interpretation of "reasonably usable," finding that a production of searchable TIFF images "[ran] afoul of the Advisory Committee's proviso. . . . In re Payment Card Interchange Fee & Merch. Disc., No. MD 05-1720(JG)(JO), 2007 WL 121426, at *4 (E.D.N.Y. Jan. 12, 2007). o Judge Cole in Autotech, however, explained that producing electronic data in PDF or TIFF form complied with Rule 34's option to produce data in, "a reasonably usable form": Absent a special request for metadata (or any reasonable basis to conclude the metadata was relevant to the claims and defenses in the litigation), and a prior order of the court based on a showing of need, this production of [PDF or TIFF] documents complies with the ordinary meaning of Rule 34. o The Middle District of Florida found that meeting the standard of "reasonably usable" did not require the production of metadata. Goodbys Creek, LLC v. Arch Ins. Co., No. 3:07-cv-947-J-34HTS, 2008 WL 4279693, at *3 (M.D. Fla. Sept. 15, 2008). In that case, the plaintiff did not request a specific form of production and the defendant produced documents as TIFF images. Applying the advisory committee's notes, the court found that the defendant's conversion of ESI into TIFF images made searching much more difficult but gave the defendant the option to (1) reproduce the TIFF images in their native format, (2) provide the documents in another comparably searchable format, or (3) supply the plaintiff with software for searching the TIFF images. o The District of Columbia followed yet another approach to the "reasonably usable" issue and held that the production of ESI in TIFF or PDF format satisfied amended Rule 34, unless the

defendants could demonstrate that a production in native format "[met] the criteria of 'reasonably usable', whereas the PDF or TIFF formats [did] not". United States v. O'Keefe, 537 F. Supp. 2d 14, 23 (D.D.C. 2008). o The Eastern District of Michigan was asked to determine whether the defendant violated the court's previous discovery order granting the plaintiff's motion to compel when the defendant produced ESI on CDROMs in "readable PDF form" without metadata. Michigan First Credit Union v. CUMIS Ins. Soc'y, No. 05-74423, 2007 WL 4098213, at *2-3 (E.D. Mich. Nov. 16, 2007). In ruling that the defendant had not violated the court's order, the court observed, "[a]lthough Rule 34 speaks of 'data compilations,' it does not explicitly reference or require the production of metadata." Nonetheless, in ruling upon the motion for sanctions, the court then analyzed the "discoverability" of metadata and found that: [S]ince the PDF copies contain all the relevant information that Plaintiff would otherwise glean from the metadata, I agree with Defendant that producing the metadata for the emails would be unduly burdensome.

Three steps to metadata-more recent cases

o Zeroing in on the better more recent metadata cases, D'Onofrio, Autotech, and Michigan First provides useful and instructive insight. When read together, the cases provide a three-step method to addressing metadata in the context of Rule 34:

o First, courts should acknowledge that Rule 34 does not automatically require metadata and PDF and TIFF can be reasonably usable forms. o Second, when deciding a Motion to Compel metadata, the court should first ask, did the requesting party specifically ask for metadata? If not, then a motion to compel lacks a fundamental element and is, therefore, not ripe. o Third, if metadata was requested but the producing party objects to that request, the court should then analyze discoverability

by balancing factors such as relevance, need, and whether production of metadata would be unduly burdensome.
ALL METADATA FIELDS? o Nat. Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency (NDLON), 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011). o Scheindlin takes on ICE, Department of Homeland Security, FBI, and Office of Legal Counsel, over metadata production in response to FOIA demands. o NDLON proposed a production format based on format demands routinely made by two government entities-the Securities and Exchange Commission and the Department of Justice Criminal Division. First Judge expresses frustration that form of production was not discussed between the parties. As far as I can tell from the record submitted by the parties, the equivalent of a Rule 26(f) conference, at which the parties are required to discuss form of production, was not held and no agreement regarding form of production was ever reached. Nor was a dispute regarding form of production brought to the Court for resolution. In reviewing the controlling law, the fact that no federal court had yet recognized that metadata is part of a public record as defined in FOIA She relied on Aguilar, which noted that the Sedona Conference abandoned an earlier presumption against the production of metadata in recognition of the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party By now, it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of the electronic record. Government argued, metadata is substantive information that must be explicitly requested and then reviewed by an agency for possible exemptions.[also argued] if the requirements of FOIA and the requirements of the Rules conflict, FOIA must trump the Rules. Scheindlin disagreed. There is no need to decide this question because FOIA does not conflict with the Rules. FOIA is silent with respect to form of production, requiring only that the record be provided in any form or format requested by the person if the record is readily

o Judge Scheindlin criticizes counsel forcing her to made an e-discovery ruling on an e-discovery issue that could have been avoided had the parties had the good sense to meet and confer, cooperate and generally make every effort to communicate as to the form in which ESI would be produced.

reproducible by the agency in that form or formatDefendants productions to date have failed to comply with Rule 34 or with FOIA. Because no metadata was specifically requested in Plaintiffs July 23 e-mail, and because this is an issue of first impression, I will not require Defendants to re-produce all of the records with metadata. Future productions, however, would have to be produced in TIFF image format but with corresponding load files, Bates stamping, and the preservation of parent-child relationships (the association between an attachment and its parent record). Going forward, the metadata required would be: Identifier File name Custodian Source Device Source path Production Path Modified Date Modified Time Time offset value She continues, however, in footnote 41: I believe that these are the minimum fields of metadata that should accompany any production of a significant collection of ESI Judge Hedges later commented on this opinionAny attempt to arrive at a universal or bright line standard for production of metadata ignores the text of Rule 34(b) and the bargaining that occurs in meets-and-confers, and the unique aspects of individual civil actions.

o The quoted words are found in opinion after opinion and yet lawyers fail to take the necessary steps to fulfill their obligations to each other and to the court. While certainly not rising to the level of a breach of an ethical obligations, such conduct certainly shows that all lawyers even highly respected private lawyers, Government lawyers, and professors of lawneed to make greater efforts to comply with the

VIV

expectations that courts now demand of counsel with respect to expensive and time-consuming document production. Search Terms/Culling/Filtering Document Review Platforms- Platform where edocs are loaded and lawyers review and mark hot0privileged or response Filter ESI- culling through key items-date range-search key custodians Search terms- key word searching-criticsm lawyers are not linquists- study show ineffective-move away from search terms by lawyers to Predictive coding- new technologies-machines analyze and predictively code Iterative- when coming up with terms you need to test for o 1. false positives o 2. Missing terms o testing=iterative=sample test terms US v Okeefe o Procedural context was that Judge had ordered certain searches of consulate secretaries and non-US citizens regarding the grant of visa interviews. Defendants moved to compel the Government did not fulfill the courts order. o a declaration, the government said (through its Visa Unit Chief), the Gov searched both paper and ESI. For paper, searched archived paper documents. The gov search used early or expedite* or appointment or early & interview or expedite* & interview. She had the Information Management staff conduct the search of personal and hard drives because they have access to all drives from the network server, not just shared drives. The files werent labeled with respect to key custodians or date and they couldnt show how search terms were employed Court relied upon FRCP even though this was a criminal ,matter, especially Rule 34 concerning document production because it is foolish to disregard them merely becase this is a criminal case.. The defendants objected to how the courts employed search terms 1. Government didnt interview employees as to their use of electronic means as a form of communication regarding expedited review; 2. Government did not have employees search their own electronically stored information; 3. Government did not indicate what software it used to conduct the search or how it ascertained what search terms it would use.

Defendants caution that if forensic software for search was not used, it probably didnt search .pst files. o Court says, Whether search terms or keywords will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Citing, Paul and Baron, Information Inflation: Can the Legal System Adapt?, 13 Rich J.L. & Tech. 10 (2007). o Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. o So, Defendants must file a Motion that meets requirements of Rule 702 to argue against the governments search terms. o DEVEOPING SEARCH TERMS REQUIRES EXPERTS William A Gross o Judge Peck, This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce emails or other electronically stored information (ESI). o Facts- Multi-million dolalr dispute over alleged defects and delay in the construction of the Bronx County Hall of Justice. o Issue is the production of Hills emails, stored on its server at its New Jersey office, and how to separate project-related emails from Hills unrelated emails. Note, Hill is DASNYs construction manager and is a non-party, from whom DASNY agreed to collect and produce. o DSYN terms were a bit narrow and they objected to the opposing parties overly broad search terms. Judge orders parties to come up with search terms together o This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails. Problems dont reflect context misspelled words may be missed abbreviations code words o Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly

implemented. Citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D.Md. May 29, 2008). o Common sense dictates that sampling and other quality assurance techniques must be employed to met requirements of completeness. o o This case judge does not require an expert to create search terms but requires more than lawyers gueasses o Court says there should be cooperation. o Also, at a minimum there should be input from the ESIs custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of false positives. o Hawley v. Felman o Privilege waiver and over/under production because keywords and priv search terms, not good. o How was Rule 26(b)(5)(B) involved and what is the interplay of that with the Claw Back? Felman wants 5/14/ email back; Defendant says no. Crimefraud; disclosure to third person; and failure to take reasonable precautions to prevent disclosure. Felman says didnt mean to give email and that it is really privileged and wants it back. Had cl back agreement that stated inadvertence Felman relied on 26b5B governing inavertant procedure-must return but can still bring to court. o Court looks to how document was given to opposing under RULE 502 Rule 502(b) Inadvertent disclosure. When made in a Federal proceeding, the disclosure does not operate as a waiver in a Federalproceeding if 1) the disclosure is inadvertent; (what this factor at issue?) 2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3) the holder promptly took reasonable steps to rectify the error(was this factor at issue?)

o Five Factor Test used to determine if inadvertent production of AC privilege documents waives privilege: 1. the reasonableness of the precautions taken to prevent inadvertent disclosure; 2. the number of inadvertent disclosures; 3. the extent of the disclosures; 4. any delay in measures taken to rectify the disclosure;

 5. overriding interests in justice. o Test applied to Hawley

Factor 1 1. Precautions to prevent inadvertent disclosure were not reasonable. As warned in Victor Stanley, the failure to test the reliability of keyword searches by appropriate sampling is imprudent. Factor 2: The number of inadvertent disclosures is large, more than double the number discussed in Victor Stanley, a number which underscores the lack of care taken in the review process. The bell cant be unrung with respect to the May 14 email. What did the court mean? Factor 3. The extent of the disclosures is not known to the Court because the 377 documents have not been submitted in camera. Factor 4. there has been a delay in measures taken to rectify the disclosure of the documents. Also, it was defendants who found the inadvertent document, not Felman. Factor 5 No. Felman has pointed to no overriding interests in justice that would excuse them from the consequences of producing privileged/protected materials. th waived. o So, May 14 X. PREDICTIVE CODING-DOCUMENT REVIEW BOOLEAN SEARCH- is the traditional manner of filtering data- Boolean Searches use logical operators such as and, or, and not to include or exclude terms from a search. Yes, Predictive Coding can be more efficient and effective than human review in certain types of reviews. Used successfully in clear R/NR large document case. Using successfully in QC process to confirm NR calls. Not successful in determining privilege and work product. Not successful in very specific internal investigation. DaSilva v. Publicis Group (Judge Peck, 2-24-12 Opinion) o In my article, Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?,

o I wrote: To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding. While anecdotally it appears that some lawyers are using predictive coding technology, it also appears that many lawyers (and their clients) are waiting for a judicial decision approving of computer-assisted review. Perhaps they are looking for an opinion concluding that: "It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure, and furthermore that the software provided for this purpose by [insert name of your favorite vendor] is the software of choice in this court." If so, it will be a long wait. o Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help "secure the just, speedy, and inexpensive" (Fed. R. Civ. P. 1) determination of cases in our e-discovery world. This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases. o I'm also saying to the defendants who may, from the comment before, have read my article. If you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff's counsel so they can say, well, of course you are not getting any [relevant] documents, you're not appropriately training the computer. o In his Search Forward article and in the DaSilva Order, Judge Peck mentions that it is the senior lawyer or team that should code the seed set. o Judge Peck didnt compel Predictive Coding; the parties agreed to it. Plaintiff, however, objects to the protocol that Peck ordered. o The parties agreed to and the court endorsed a custodian-based approach. o Parties agreed to a 95% confidence level (plus/minus 2%) to create a random sample of the entire email collection to code R and NR for the seed set. Defendant further trained through judgmental sampling, using Boolean keywords (Defendants and Plaintiffs terms). o Judge Peck notes that all coding of the seed set was done by senior attorneys (not paralegals, staff attorneys or junior associates). o With respect to quality checking the rankings by the machine, several iterations of sampling would occur and , For each of the seven rounds and the final quality-check random sample, MSL agreed that it would show plaintiffs all the documents it looked at including those deemed not relevant (except for privileged documents).

o On February 22, 2012, Plaintiffs filed objections to Judge Pecks February 8, 2012 ruling. Judge Peck then added comments to those objections to his February 24, 2012 written opinion. o Plaintiffs object to this ESI Protocol in its entirety. Plaintiffs submitted their own proposed ESI Protocol to the Court, but it was largely rejected. The Court then ordered the parties to submit a joint ESI Protocol reflecting the Court's rulings. Accordingly, Plaintiffs jointly submit this ESI Protocol with MSL, but reserve the right to object to its use in this case. o Plaintiff objects that the Courts Order violates Rule 702 and the Courts gate-keeping function. Judge Peck disagrees, stating that Rule 702 is not applicable, as it is only for the admissibility of evidence. o Plaintiff objects that there is no way to know if Defendants method is reliable. Peck says that such an argument is premature, plus, Defendants are being so transparent. Judge Peck notes that perhaps not all litigants would agree to be so transparent. o In this case, the Court determined that the use of predictive coding was appropriate considering: (1) the parties' agreement, (2) the vast amount of ESI to be reviewed (over three million documents) , (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), ( 4) the need for cost effectiveness and proportionality under Rule 26(b)(2)(C), and (5) the transparent process proposed by MSL. o Protocol notes that Defendants are using Axcelerate (Recommind). Kleen Products v. Packaging Corp. (NDIL) o as Judge Nolan put it, this Evidentiary Hearing was to be investigatory and educational on the topic of the proper search methodology to be utilized in this case. Judge Nolan further stated, This is not Daubertthis is a real work in progressweve got a real practical issue here[this is not] supposed to be a treatise on what might be appropriate in other cases. o Hearing centered around Plaintiffs request that Defendants use advanced analytics. o Is it true that Plaintiffs in this multi-party, price-fixing case argue that Defendants (major corporations) should load 100% of data from identified data sources and not limit their collection or review by custodian or keywords? Answer, yes. o Even though Defendants have already completed 99% of their document review, based upon a custodian-based model and using keywords? Yes.

XI

o Do Plaintiffs also seek to have involvement in the sampling and testing of Defendants progression through a review process that Plaintiffs have designed for Defendants? Yes. o Does Plaintiffs proposed review process include Predictive Coding? Well, yes, in large part, it seems, but theres more to Plaintiffs request. What Plaintiffs seek to compel the Defendants to use is something Plaintiffs call CBAA (Content Based Advanced Analytics), which they ask be used within a fairly detailed identification, collection, and review protocol. Predictive coding is a part of CBAA. o Given the number of objections and arguments as to who is and is not qualified to testify on this topic and the objections to testimony argued to be improper legal conclusions, Kleen may be one of the better examples of that difficult intersection between law and technology. Judge Nolan put it best in describing the hearing when she said, Dont you think this whole hearing is about the interplay of law and science? o Do we have consistent terminology and an even understanding? Content Based Advanced Analytics (CBAA) Content Based Advanced Analytics Software Assisted Review (KPMG) Predictive Coding (Recommind) Intelligent Prioritization (Kroll) Intelligent Categorization (Kroll) Statistical Rank Retrieval Supervised Computer Learning Statistics terms: precision, recall, confidence interval, accuracy, F-Measure, etc. o See Federal Judges Consider Important Issues That Could Shape The Future of Predictive Coding Technology, Matthew Nelson, o (the challenge with todays predictive coding technology is that the tools are still in their infancy within the legal space, making them difficult for the average attorney operator to use and understand with a sufficient level of confidence.). o Similarly, in the 7th Federal Circuit, Judge Nan Nolan is tackling the issue of predictive coding technology in Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al. In Kleen, Plaintiffs basically ask that Judge Nolan order Defendants to redo their production even though Defendants have spent thousands of hours reviewing documents, have already produced over a million documents, and their review is over 99 percent complete. The parties have already presented witness testimony in support of their respective positions over the course of two full days and more testimony may be required before Judge Nolan issues a ruling. SOCIAL MEDIA AND STORED COMMUNICATIONS ACT

What is social media o o Communication o Blogs: Blogger, ExpressionEngine, LiveJournal, Open Diary, TypePad, Vox, WordPress, Xanga o Microblogging: FMyLife, Foursquare, Jaiku, Plurk, Posterous, Tumblr, Twitter, Qaiku, Yammer, Google Buzz, Identi.ca o Location based social networks: Foursquare, Geoloqi, Gowalla, Facebook places, The Hotlist o Social networking: ASmallWorld, Cyworld, Diaspora, Facebook, Hi5, Hyves, LinkedIn, MySpace, Ning, Orkut, Plaxo, Tagged o Events: Eventful, The Hotlist, Meetup.com, Upcoming o Information Aggregators: Netvibes, Twine (website) o Online Advocacy and Fundraising: Causes, Kickstarter o Collaboration/authority building o Wikis: PBworks, Wetpaint, Wikia, Wikimedia, Wikispaces o Social bookmarking (or social tagging): CiteULike, Delicious, Diigo, Google Reader, StumbleUpon, folkd o Social news: Digg, Mixx, NowPublic, Reddit, Newsvine o Social navigation: Trapster, Waze o Content Management Systems: Wordpress, Drupal, Plone o Document Managing and Editing Tools: Google Docs, Syncplicity, Docs.com, Dropbox.com o Collaboration: Central Desktop o Multimedia o Photography and art sharing: deviantArt, Flickr, Photobucket, Picasa, SmugMug, Zooomr o Video sharing: sevenload, Viddler, Vimeo, YouTube, Dailymotion, Metacafe, Nico Nico Douga, Openfilm o Livecasting: Justin.tv, Livestream, OpenCU, Skype, Stickam, Ustream, blip.tv o Music and audio sharing: ccMixter, Pandora Radio, Last.fm, MySpace Music, ReverbNation.com, ShareTheMusic, The Hype Machine, Groove Shark, SoundCloud o Presentation sharing: scribd, SlideShare o Reviews and opinions o Product reviews: epinions.com, MouthShut.com o Business reviews: Customer Lobby, Yelp, Inc. o Community Q&A: Askville, EHow, Stack Exchange, WikiAnswers, Yahoo! Answers, Quora o Entertainment o Media and entertainment platforms: Cisco Eos o Virtual worlds: Active Worlds, Forterra Systems, Second Life, The Sims Online o Game sharing: Kongregate, Miniclip

o Brand monitoring o Social media measurement: Attensity, Statsit, Sysomos, Vocus X1 DISCOVERYS STUDY OF SOCIAL MEDIA CASES 1/1/10-11/1/11: 674 STATE AND FEDERAL WRITTEN OPINIONS THAT INVOLVED SOCIAL MEDIA IN SOME CAPACITY (AND DID NOT INCLUDE SOCIAL MEDIA AS A PARTY). STUDY LIMITED TO FOUR BIG PLAYERS: o MySPACE (326) o FACEBOOK (262) o TWITTER (49) o LINKEDIN (37) Regulatory o Example, Financial Industry o FINRA Notice 10-6 and Notice 11-39 (SEA Rule 17a4; NASD Rule 3110; FINRA is the largest independent securities regulator in the U.S. Our chief role is to protect investors by maintaining the fairness of the U.S. capital markets. o Heres some main points discussed in Notice 11-39: o You must preserve any business related web content, be it on websites, blogs, Twitter, Facebook, YouTube, Orkut, LinkedIn or any other social network. o In accordance with SEA Rule 17a-4, records must be preserved for three years the first two years of content must be easily accessible. o Record keeping requirements do not differ for static and interactive content both must be preserved in accordance with SEA Rule 17a4. o Dont use technology that automatically erases or deletes the content of an electronic communication as this would preclude the ability of the firm to retain the communications in compliance with their obligations under SEA Rule 17a-4. o What you link to matters: A firm should not include a link on its website if there are any red flags that indicate the linked site contains false or misleading content. Corporations must have a social media policy. Ben Kerschberg, Forbes.com, 9/28/11 Litigation o Lester v. Allied Concrete Company (2011) Attorney Sanctioned $522,000 by Virginia State court Told client to clean up his Facebook with incriminating photos o Torres v. Lexington Insurance Company (2006) Plaintiff's personal website photos removed while litigation was pending o

Preservation o Download your account on Facebook o Screenshots o Vendor solutions, such as archiving solutions, in the cloud and X1s Social Discovery o Ask Facebook? Facebook preserves user content only in response to a valid law enforcement request. (See Facebook.com) o Certainly Hold Order to clientand be specific about social media o Certainly Preservation Demandand be specific about social media FACEBOOK SAYS o To respond to legal requests and prevent harm. We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities. o May I obtain contents of a users account from Facebook using a civil subpoena? Federal law prohibits Facebook from disclosing user content (such as messages, Wall posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order. Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebooks "Download Your Information" tool, which is accessible through the "Account Settings" drop down menu. If a user cannot access content because he or she disables or deleted his or her account, Facebook will, to the extent

Court finds spoliation: bars plaintiff from introducing any evidence of mental anguish supporting her claims. Preservation demand sent by defense counsel

possible, restore access to allow the user to collect and produce the accounts content. Facebook preserves user content only in response to a valid law enforcement request. o May I obtain any information about a users account using a civil subpoena? o Facebook may provide basic subscriber information (not content) to a party in a civil matter only where: 1) the requested information is indispensable to the case and not within the partys possession; and 2) you personally serve a valid California or federal subpoena on Facebook. Out-of-state civil subpoenas must be domesticated in California and personally served on Facebooks registered agent. Parties seeking basic subscriber information as set forth above must specifically identify the account by providing the email address, Facebook user ID (UID) and vanity URL (if any). Names, birthdays, locations, and other information are insufficient to identify a Facebook account. UIDs and/or vanity URLs may be found in the uniform resource locator available in a browser displaying the account in question. For example, in the URL http://www.facebook.com/profile.php?id=12345678910, 12345678910 is the UID. o When will I receive a response to my civil subpoena? Facebook requires a minimum of 30 days to process a civil subpoena for basic identifying information. Additional time may be required depending on various factors. Delivery may be delayed if you fail to include Facebook's processing fee in your request. o Do I need a Facebook representative to testify at a civil trial? No. The account owner, or any person with knowledge of the contents of the account, can authenticate account content. Further, under federal and California law, business records produced by Facebook are self-authenticating. o Does Facebook notify users prior to responding to subpoenas? Facebook may notify its users before responding to legal process Twitter o Twitter is a real-time information network powered by people all around the world that lets users share and discover what's happening now. Users send 140 character messages through our website and mobile site, client applications, or any variety of third-party applications. For more information, you can also visit http://twitter.com/about.

o User information is held by Twitter, Inc. in accordance with our Privacy Policy and Terms of Service. We require a subpoena, court order, or other valid legal process to disclose information about our users. o Most Twitter profile information is public, so anyone can see it. A Twitter profile contains a profile image, background image, and status updates, called Tweets. In addition, the user has the option to fill out location, a URL, and a short "bio" section about themselves for display on their public profile. Please see our Privacy Policy for more information on the data we collect from users. o Twitter retains different types of information for different time periods. Given Twitter's real-time nature, some information may only be stored for a very brief period of time. o Preservation requests must be signed, include a valid return email address, and sent on law enforcement letterhead. Requests may be sent via the methods described below. Twitter, Inc. is located in San Francisco, California and will only respond in compliance with U.S. law to valid legal process. Twitter accepts legal process from law enforcement agencies delivered by mail or fax. Acceptance of legal process by these means is for convenience only and does not waive any objections, including the lack of jurisdiction or proper service. Your request should include the URL of the Twitter profile in question (eg., http://twitter.com/safety or @safety), and details about what specific information is requested. Twitter conducts most correspondence via email, so PLEASE INCLUDE A VALID EMAIL ADDRESS so we may contact you. To contact us, email: lawenforcement@ twitter.com o In-World Conduct: We may collect and retain any other information relating to your account data or in-world activities including chat or IM logs, IP address and logs, places visited in Second Life, and other users or parties to whom you transfer Linden dollars or other objects. o LindeX Transactions: If you conduct transactions on the LindeX, we may collect and retain some or all of the information related to these transactions, including amounts of transactions, parties involved, time and manner of exchange and cash-out, and other circumstances of the transactions. Stored Communications Act- ECS v. RCS o Two major text messaging cases, Quon v. Arch Wireless and Flagg v. City of Detroit, deal with the Stored Communications Act. o The SCA, 18 U.S.C. 2702 (2006), prohibits entities providing electronic communication services (ECS) or remote computing services (RCS) from divulging the contents of such communications unless it falls under an exception.

Both an ECS and an RCS may disclose the communication to the originator or recipient of the message and an RCS may also disclose to the service subscriber. RCS may also disclose to the service subscriber o the distinction seems to focus on whether there service is really about providing the pipe for communication, or whether it is about providing services where the connection the electronic communications system is the mere conduit for the other services. o A person providing electronic communication service (ECS) to the public can not knowingly divulge the contents of a communication while in electronic storage by that service. 18 U.S.C.A. 2702(a). ISP 7:67. A public remote computing service (RCS) cannot knowingly disclose the contents of any communication which is carried or maintained on that service if it is received by means of electronic transmission, by or on behalf of a subscriber or customer, if it was carried or maintained solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. 18 U.S.C.A. 2702(a)(2); ISP 7:67. In other words, if you are an RCS and receive communications that are, for lack of a better term, incidental to the storage or processing function you provide, you cannot access the contents for purposes other than your services and you cannot disclose them to thirdparties. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) o Police department employees brought 4th amendment claim against the city and a Stored Communications Act (SCA) claim against the service provider because of departments review of their text messages. o Hand-held devices were city-issued, but department did not monitor usage so long as employees reimbursed city for any overages. o Due to excessive use by several employees, city officials decided conduct an internal investigation to review messages and Arch Wireless provided text message communications to the city to determine whether the overages were in the course of official business. Upon this review, city officials noticed that many of the messages were not in the course of official business and that many of them were sexually explicit. o 9th Circuit determined that an RCS was an entity functioning as a virtual filing cabinet or an entity providing processing or computing services, while an ECS is an entity that supplies users with the ability to send and receive electronic communications.

o The Court held that Arch Wireless was an ECS and, therefore, the disclosure of Quons communications to the city subscriber violated the SCA. o The Court also held the department had created an expectation of privacy because it failed to routinely monitor usage and did not follow its formal electronic communications policy. o Appeals Court recently rejected petition for panel rehearing and rehearing en banc. 554 F.3d 769 (2009) SOCIAL MEDIA COMPANIES MAY NOT RESPOND TO THIRD PARTY SUBPOENAS -- STORED COMMUNICATIONS ACT ARGUMENT o Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) o The information provided to Judge McDermott and this court, however, makes clear that Facebook permits wall messages to be viewed by anyone with access to the user's profile page; MySpace provides the same functionality. As a consequence, there is no basis for distinguishing between a restricted-access BBS and a user's Facebook wall or MySpace comments. There similarly is no basis for distinguishing between Media Temple's webmail and Facebook's and MySpace's private messaging, on the one hand, and traditional webbased email on the other. As a consequence, the court concludes that each of Media Temple, Facebook, and MySpace is an ECS provider. Id. at 981-82 (emphasis in original). o (Court also does an analysis as though social media in question also RCS) o Facebook is governed by the SCA (either as an ECS or RCS provider). However, the courts remanded to determine privacy settings (which is consistent with precedent). o District Court Judge Margaret Morrows decision partially reversed and partially vacated Judge McDermotts order, finding that the SCA's protections (and associated discovery preclusions) include at least some of the content hosted on social networking sites, including the private messaging features of social networking sites protected as private email. She also concluded that because Facebook, MySpace, and Media Temple all provide private messaging or email services as well as electronic storage, they all qualify as both ECS and RCS providers, with appropriate SCA protections. How do you get the information then? o Just ask for it in a document request o Court Ordered Consent o Direct Access o Lawyers have devised a strategy to work around the SCA roadblock: They ask judges to order plaintiffs to sign consent forms granting defendants access. The consents are attached to subpoenas.

Romano v. Steelcase (Court Ordered Consent) 2010 NY Slip Op 20388 [30 Misc 3d 426] o Romano claimed physical disability following an accident. o Romano's MySpace postings regularly included smiley faces, suggesting that she was happy. Defense counsel located Romanos daughters Facebook page, and claimed it included postings and photos indicating that the family had traveled to Florida, contradicting Romano's claims that she is homebound. "We figured something smells here," Gallagher said, "and we wanted to see what else was in there. o Facebook filed a motion arguing that defense lawyers should seek access to plaintiff's online material directly -- and not via a subpoena to the site. Facebook acknowledges, though, that, "If a person believes that their Facebook materials are relevant to a case, they may have a duty to preserve and produce those materials," company spokesman Andrew Noyce said in an e-mail to Reuters Legal. MySpace did not file a response to the motion in the Romano case. o contrary to plaintiff's claims, Steelcase contends that a review of the public portions of plaintiff's MySpace and Facebook pages reveals that she has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity. In light of this, defendant sought to question plaintiff at her deposition regarding her MySpace and Facebook accounts, to no avail, and following those depositions, served plaintiff with a notice for discovery and inspection requesting, inter alia, "authorizations to obtain full access to and copies of Plaintiff's current and historical records/information on her Facebook and MySpace accounts." Plaintiff has refused to provide the requested authorizations. o Court says: The information sought by defendant regarding plaintiff's Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence. In this regard, it appears that plaintiff's public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing defendant from accessing plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State.

o Indeed, as neither Facebook nor MySpace guarantee complete privacy, plaintiff has no legitimate reasonable expectation of privacy. In this regard, MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and Facebook's privacy policy set forth, inter alia, that "[y]ou post User Content . . . on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable." o Thus, when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites, else they would cease to exist. Since plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. o Ordered, that defendant Steelcase's motion for an order granting said defendant access to plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects; and it is further ordered, that, within 30 days from the date of service of a copy of this order, as directed herein below, plaintiff shall deliver to counsel for defendant Steelcase a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said defendant to gain access to plaintiff's Facebook and MySpace records, including any records previously deleted or archived by said operators. HOW DO YOU AUTHENTICATE SOCIAL MEDIA? o Griffin v. State of Maryland (court of appeals, May 2010) MySpace status at issue (admitted to show threat to a witness): I HAVE 2 BEAUTIFUL KIDS.FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!! [DEFENSE COUNSEL]: How do you know that this is her web page? . . . [SGT. COOK]: Through the photograph of her and Boozy on the front, through the reference to Boozy, to the reference of the children, and to her birth date indicated on the form. [DEFENSE COUNSEL]: How do you know she sent it? [SGT. COOK]: I cant say that. Sergeant Cook acknowledged that he could not determine when any particular posting was made. But, he indicated that he visited the Web site on December 5, 2006, the date that appeared on the printout.

o o

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The design and purpose of social media sites make them especially fertile ground for statements involving observations of events surrounding us, statements regarding how we feel, our plans and motives, and our feelings (emotional and physical)[.] Lorraine, 241 F.R.D. at 569. For that reason, both prosecutors and criminal defense attorneys are increasingly looking for potential evidence on the expanding array of Internet blogs, message boards, and chat rooms. See, e.g., Nelson, supra, at 13 (It should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.). We see no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic communication by their content and context. Maryland Court of Appeals disagreed the potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image for such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [defendant] Ms. Barber was its creator and the author of the snitches get stitches language. What could prosecutor do to authenticate? What did Maryland Court of Appeals say? The first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Rule 5-901(b)(1). The second option may be to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question. *** A third method may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it. State of Connecticut v. Robert Eleck (August 9, 2011) As a witness for the state, Judway offered key testimony that, prior to the physical altercation, the defendant had told her that if anyone messes with me tonight, I am going to stab them. Subsequently, during cross-examination, defense counsel sought to impeach Judway's credibility by asking her

whether she had spoken with the defendant in person since the incident. She responded that she had seen the defendant in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between the defendant's Facebook account and another account under the user name Simone Danielle.2 Judway identified the user name as her own, but denied sending the messages to the defendant.3 She also testified that someone had hacked into her Facebook account and changed her password two [to] three weeks ago such that she had been unable to access it subsequently. On the following day, during the defendant's testimony, his counsel offered into evidence the defendant's Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and the document was irrelevant. In response, to authenticate the document, the defendant testified that he downloaded and printed the exchange of messages directly from his own computer. He also advanced testimony that he recognized the user name, Simone Danielle, as belonging to Judway because she had added him as a Facebook friend a short time before he received the message. He testified that the Simone Danielle profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Face-book account after the previous day's testimony, user Simone Danielle had removed him from her list of Facebook friends. The defendant's counsel then argued that based on this testimony and Judway's identification of her user name, there was a sufficient foundation to admit the document for the jury's consideration. The court, however, sustained the state's objection on the ground that the defendant had not authenticated that the messages were written by Judway herself. The defendant claims that this determination was improper. COURT- See State v. John L., 85 Conn.App. 291, 298302, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004). Specifically in the case of electronic messaging, Maryland's highest court has suggested that a proponent of a document might search the computer of the purported author for Internet history and stored documents or might seek authenticating information from the commercial host of the e-mail, cell phone messaging or social networking account. See Griffin v. State, 419 Md. 343, 36364, 19 A.3d 415 (2011); see also People v. Clevenstine, 68 App. Div.3d

1448,145051,891 N.Y.S.2d 511 (2009) (authorship of MySpace messages authenticated where police retrieved record of conversations from victims' hard drive and MySpace officer testified that defendant had created the sending account), appeal denied, 14 N .Y.3d 799, 925 N.E.2d 937, 899 N.Y.S.2d 133 (2010). In the present case, the defendant proffered evidence as to the accuracy of the copy and Judway's connection to the Facebook account. He also proffered evidence that Judway had added him to her list of Facebook friends shortly before allegedly sending the messages, and then removed him as a friend after testifying against him at the trial. Specifically in regard to authorship, however, the direct testimony of the purported author, Judway, contradicted the defendant's assertion. While admitting that the messages were sent from her Facebook account, she simultaneously denied their authorship. She also suggested that she could not have authored the messages because the account had been hacked. Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway's testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway's account. Consequently, we agree with the trial court that the fact that Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account. We are not convinced that the content of this exchange provided distinctive evidence of the interpersonal conflict between the defendant and Judway. To the contrary, this exchange could have been generated by any person using Judway's account as it does not reflect distinct information that only Judway would have possessed regarding the defendant or the character of their relationship. In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence. o DIVORCE

In a recent survey, 81% of matrimonial lawyers say that in the past five years they have seen an increase in the use of socialnetworking information as evidence of infidelity. (Survey by American Academy of Matrimonial Lawyers) The most widely used cyber-evidence: messages to lovers and incriminating photos on Facebook, the survey from the American Academy of Matrimonial Lawyers reveals. o PUBLIC POLICY Section 7 of the NLRA (right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection) NLRB v. American Medical Response Employee denied Union Representation Went on Facebook and called her boss a d--- and a scumbag. Several co-workers post their support Shes fired NLRB says she was improperly fired and AMRs social media policy improperly inhibits protected right to engage in concerted activities. But, not all speech in social media is protected from termination After the employee filed a grievance, the NLRB sued the company on her behalf, arguing that the employees comments were protected speech under the National Labor Relations Act (NLRA) and that the employers written policies were overly broad. Shortly thereafter, the case settled and the employer agreed to revise its policies. The case between the employee and the employer were also resolved by private agreement. o United States v Warshuk Emails- If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP's servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call-unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the

contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception. Having found that subscribers have a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP, the court further held that to the extent the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional. The court nonetheless declined to apply the exclusionary rule to the improperly obtained emails where the government relied in good-faith on the provisions of the Stored Communications Act. The court noted, however, that after todays decision, the good-faith calculus has changed, and a reasonable officer may no longer assume that the Constitution permits warrantless searches of private emails. o How do we search social media Maintain social media data in a searchable native format from collection through production, uniquely providing a complete platform to address social media in the same manner as e-mail and e-documents. Relevant data can be tagged, sorted and expediently exported to leading attorney review platforms. XII. Document Review Kroll o Email threads o Concept search o Unique hits o Multiple meanings o Topic grouping o Communication patterns o Domain filters o Predictive coding IMPORTANT BUDGETING METRICS o On average, there are 5000 documents per gig, but this can be wildly different after data is uncompressed and processed. o On ave linear review--60 docs per hr FILTERING/CULLING DATA o Boolean search is the traditional manner of filtering data. o Collection to review is like a funnel o Early data assessment is a good way to control costs for early case assessment

o Wildcard (such as, for example, Wild!)--captures expansions/variations of terms--but be careful, make sure have a tool that shows what you have expanded to o Unique search hits is the key when trying to negotiate search terms o Search hit results should be according to "Document" vs. Pages Advanced review tools o Domain filter o Concept filters/grouping o Email threading--grouping of email conversations o Analytics: Communication patterns, who talking to who and with what frequency, and what talking about//// timeline of communications/// subject categories "happy holiday!"/// Technology Assisted Review---prioritization///categorization Facts o Yes, Predictive Coding can be more efficient and effective than human review in certain types of reviews. o Used successfully in clear R/NR large document case. o Using successfully in QC process to confirm NR calls. o Not successful in determining privilege and work product. o Not successful in very specific internal investigation. DaSilva v. Publicis Group (Judge Peck, 2-24-12 Opinion) (Pending in SDNY o In my article, Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?, I wrote: To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding. While anecdotally it appears that some lawyers are using predictive coding technology, it also appears that many lawyers (and their clients) are waiting for a judicial decision approving of computer-assisted review. Perhaps they are looking for an opinion concluding that: "It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure, and furthermore that the software provided for this purpose by [insert name of your favorite vendor] is the software of choice in this court." If so, it will be a long wait. o Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computerassisted coding should be used in those cases where it will help "secure the just, speedy, and inexpensive" (Fed. R. Civ. P. 1) determination of cases in our e-discovery world. This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.

o I'm also saying to the defendants who may, from the comment before, have read my article. If you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff's counsel so they can say, well, of course you are not getting any [relevant] documents, you're not appropriately training the computer. o In his Search Forward article and in the DaSilva Order, Judge Peck mentions that it is the senior lawyer or team that should code the seed set. o Judge Peck didnt compel Predictive Coding; the parties agreed to it. Plaintiff, however, objects to the protocol that Peck ordered. o The parties agreed to and the court endorsed a custodian-based approach. o Parties agreed to a 95% confidence level (plus/minus 2%) to create a random sample of the entire email collection to code R and NR for the seed set. Defendant further trained through judgmental sampling, using Boolean keywords (Defendants and Plaintiffs terms). o Judge Peck notes that all coding of the seed set was done by senior attorneys (not paralegals, staff attorneys or junior associates). o With respect to quality checking the rankings by the machine, several iterations of sampling would occur and , For each of the seven rounds and the final quality-check random sample, MSL agreed that it would show plaintiffs all the documents it looked at including those deemed not relevant (except for privileged documents). o On February 22, 2012, Plaintiffs filed objections to Judge Pecks February 8, 2012 ruling. Judge Peck then added comments to those objections to his February 24, 2012 written opinion. o Plaintiffs object to this ESI Protocol in its entirety. Plaintiffs submitted their own proposed ESI Protocol to the Court, but it was largely rejected. The Court then ordered the parties to submit a joint ESI Protocol reflecting the Court's rulings. Accordingly, Plaintiffs jointly submit this ESI Protocol with MSL, but reserve the right to object to its use in this case. o Plaintiff objects that the Courts Order violates Rule 702 and the Courts gate-keeping function. Judge Peck disagrees, stating that Rule 702 is not applicable, as it is only for the admissibility of evidence. o Plaintiff objects that there is no way to know if Defendants method is reliable. Peck says that such an argument is premature, plus, Defendants are being so transparent. Judge Peck notes that perhaps not all litigants would agree to be so transparent. o In this case, the Court determined that the use of predictive coding was appropriate considering:

(1) the parties' agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality under Rule 26(b)(2)(C), and ( 5) the transparent process proposed by MSL. o Plaintiffs further argue that the Recommind software has no generally accepted reliability standards. Plaintiffs criticize Judge Peck for "order(ing) the use of predictive coding a novel discovery tool as the sole determinate of documents to be produced. o Plaintiffs argue that Pecks written opinion came just two days after they filed their objections. US District Judge Carter gave Plaintiffs the opportunity to write a full written objection in a brief due march 19th. o In a rare move, Plaintiffs have since filed a brief criticizing Judge Peck for his lengthy list of appearances speaking about Predictive coding, alongside defense counsel, and sponsored by Recommind. They have gone so far to seek his recusal from the case. Kleen Products v. Packaging Corp. (NDIL) o February 21, 2012 Hearing before Judge Nan Nolan in the Northern District of Illinois. o 9 hours of testimony; continued to March 28, 2012, for more testimony, and continued again. Very unheard of in the discovery context. o This was not on a Motion to Compel, Motion for Protective Order, or Motion for Sanctions. o Rather, as Judge Nolan put it, this Evidentiary Hearing was to be investigatory and educational on the topic of the proper search methodology to be utilized in this case. Judge Nolan further stated, This is not Daubertthis is a real work in progressweve got a real practical issue here[this is not] supposed to be a treatise on what might be appropriate in other cases. o Hearing centered around Plaintiffs request that Defendants use advanced analytics. o Is it true that Plaintiffs in this multi-party, price-fixing case argue that Defendants (major corporations) should load 100% of data from identified data sources and not limit their collection or review by custodian or keywords? Answer, yes. o Even though Defendants have already completed 99% of their document review, based upon a custodian-based model and using keywords? Yes. o Do Plaintiffs also seek to have involvement in the sampling and testing of Defendants progression through a review process that Plaintiffs have designed for Defendants? Yes.

o Does Plaintiffs proposed review process include Predictive Coding? Well, yes, in large part, it seems, but theres more to Plaintiffs request. What Plaintiffs seek to compel the Defendants to use is something Plaintiffs call CBAA (Content Based Advanced Analytics), which they ask be used within a fairly detailed identification, collection, and review protocol. Predictive coding is a part of CBAA. o Given the number of objections and arguments as to who is and is not qualified to testify on this topic and the objections to testimony argued to be improper legal conclusions, Kleen may be one of the better examples of that difficult intersection between law and technology. Judge Nolan put it best in describing the hearing when she said, Dont you think this whole hearing is about the interplay of law and science? o Do we have consistent terminology and an even understanding? Content Based Advanced Analytics (CBAA) Content Based Advanced Analytics Software Assisted Review (KPMG) Predictive Coding (Recommind) Intelligent Prioritization (Kroll) Intelligent Categorization (Kroll) Statistical Rank Retrieval Supervised Computer Learning Statistics terms: precision, recall, confidence interval, accuracy, F-Measure, etc. o See Federal Judges Consider Important Issues That Could Shape The Future of Predictive Coding Technology, Matthew Nelson, www.Forbes.com, 2/20/12, (the challenge with todays predictive coding technology is that the tools are still in their infancy within the legal space, making them difficult for the average attorney operator to use and understand with a sufficient level of confidence.). o What is/are the right expert/s or witnesses to answer the pending question in Kleen? o For instance, upon Plaintiffs proffer of Dr. David Lewis (Statistics and Information Retrieval expert), defense counsel noted that Dr. Lewis might be an expert on Information Retrieval, but that Defendants reserve objection as to the applicability of Information Retrieval in general to E-Discovery specifically. As defense counsel put it, Not sure if there is an expert on that. XIIV Taxation of Costs (different from cost shifting) BACKGROUND o In 2008, Congress amended 1920(4) (taxation of costs statute). The former phrase allowing for taxation only for fees for exemplification and copies of papers, was changed to fees for exemplification and

the costs of making copies of any materials where the costs are necessarily obtained for use in the case. CONFLICTING CASE LAW AS TO APPLICATION TO E-DISCOVERY COSTS o In re Aspartame, EDPA October 5, 2011, (Weaward costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, de-duplication, data extraction and processing.) o Tibble, CD Cal, Aug. 22, 2011, (more than $500,000 in electronic discovery costs necessarily incurred to respond to plaintiffs discovery requests were taxable) o Rawal (N.D. Ill. Feb. 22, 2012) (refusing to award electronic processing costs as taxable) o In re Fast Memory Erase, ND Tex. Feb 20120) (awarding nearly $200,000 for TIFF/OCR conversion but disallowing more than $860,000 for collecting and processing in excess of 2,100 gigs of ESI). Race Tires, March 16, 2012 o US Court of Appeals, Third Circuit. o Appeal from USDC, WD of PA, in which the District Court awarded more than $365,000 in e-discovery costs to Defendants upon the grant of Summary Judgment. This taxation included vendor charges for hard drive imaging, data processing, keyword searching, and file format conversion. o Appellate court noted that the District Court did not differentiate between those charges that constitute fees for exemplification and the charges that constitute costs for making copies. o We conclude that none of the electronic discovery vendors activities in this case can be regarded as exemplification of materials. We further conclude that only scanning and file format conversion can be considered to be making copies, an activity that amounts to approximately $30,000 of the more than $365,000 in electronic discovery charges taxed in this case. o There is no need to decide whether Congress used the term exemplification in its narrow legal sense, or in the broader sense adopted by the Seventh Circuit. The electronic discovery vendors work in this case did not produce illustrative evidence or the authentication of public records. o District Court Clerk of the Court had allowed the taxation, stating that the requirements and expertise necessary to retrieve and prepare these e-discovery documents [were] an indispensable part of the process. The clerk had disallowed some costs that were done by the Defendants law firm because these items were not done by a third party, and therefore are part of the costs of litigation. o Appellate Courts response: The most recent amendments to the statute, however, permitting an award to the prevailing party of

the cost of making copies of materials, plainly signifies that Sec. 1920(4)s allowance for copying costs is not limited to paper copying. Yet, The invoices that [Defendants] submitted in support of their Bills of Costs are notable for their lack of specificity and clarity as to the services actually performed. For instance, [Defendant A] invoices appended to the Bill of Costs have thousands of dollars in charges for EDD Processing, without explaining what that activity encompasses. And while [Defendant As] use of the phrase Performing Searching/Filtering/Exporting may be less obtuse, the invoices provide no indication of the rationale for these activities, nor their results in terms of the actual producing of discovery material.[the invoices] are replete with technical jargon that makes it difficult to decipher what exactly was done. o Of the activities undertaken by the vendors, only the conversion of native files to TIFF (the agreed-upon default format for production of ESI), and the scanning of documents to create digital duplicates are generally recognized as the taxable making copies of materials. Also, the cost of transferring VHS to DVD format similarly qualifies as making copies. o Neither the degree of expertise necessary to perform the work nor the identity of the party performing the work of making copies is a factor that can be gleaned from Sec 1920(4). Those courts that have refused to award the costs of electronic discovery vendors beyond file format conversion have recognized that gathering, preserving, processing, searching, culling, and extracting ESI simply do not amount to making copies[Further,] just as the cost of reviewers examining documents is not taxable, so too the task of keyword searching is not taxable. VIV International Law Gucci o Gucci brings trademark action for counterfeit Gucci goods. o Discovery dispute with third party, UOB, a bank in Malaysia, who Gucci says is hiding money for Defendant Curveal. o UOB was served with a subpoena for banking records held in Malaysia at its NYC office. o UOB claims it cant comply with the subpoena because doing so would violate Malaysian banking secrecy laws. o During pendency of this discovery dispute, Judge granted default judgment of 13.7 million in favor of Gucci, and ordered payment from overseas accounts. o Malaysian attorney submits opinion to court of ramifications of complying with order.

o UOB NY argued it was not permitted to comply with the judgment order based upon this Malaysian lawyers opinion. o In response, Plaintiffs reiterate their contention that a foreign company doing business in New York must abide by the order of a U.S. court, and UOB should not be permitted to hide behind a foreign law to flout a valid court order. o In determining whether to order discovery of documents and information in the face of objections by foreign states, Societe Nationale Industrielle Aerospatiale v. Dist. Of Iowa, 482 U.S. 522, 544 n.28, 107 S. Ct. 2542, 2556 n.28 (1987), courts in this Circuit have followed the approach set forth in the Restatement (Third) of Foreign Relations Law of the United States 442(1)(c). o In accordance with the Restatement, the Court must consider the following five factors: (1) the importance of the documents or information requested to the litigation; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of retrieving the information; and (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine the important interests of the state where the information is located. Courts might also look to hardship of compliance. o Does the third factor address who has control of the Malaysian documents? o No. Just physical location. o But does UOB NY have control over its Malaysian subsidiarys documents? o Yes, UOB has control and therefore can be compelled to produce them. o So, here, does factor 3 weigh in favor of UOB NY or Plaintiff Gucci? o Since its just physical location, it weighs in favor of UOB NY. o But does something counterbalance this? o Yes, factor four does because the court finds that the banking records are not otherwise easily attained. Why? o Because Gucci would have to open up a separate action in Malaysia under dubious assurances of success. o Also, UOB NY has not yet consented which would subject UOB to an exception within the Malaysian banking privacy laws. o The fifth factor, which examines the competing interests of the United States and Malaysia, is of the greatest importance in determining whether to defer to the foreign jurisdiction. Strauss, 249 F.R.D. at 443 (quoting British Intl Ins. Co. Ltd., 2000 WL 713057, at *9).

o Supreme Court has held that American courts are not required to adhere blindly to the directives of [a foreign blocking statute]. Aerospatiale, 482 U.S. at 544 n.29, 107 S. Ct. at 2556 n.29. o So whats the US interest? Fully and fairly adjudicating matters. Malaysias interest is privacy, but the court considers it significant to its analysis that a customer can waive privacy or it can be waived by a Malaysian garnishee order. But, then again, there are criminal sanctions if the privacy law is violated, including imprisonment for 3 years and a fine of $900,000. o But UOB has not submitted any affidavit of likelihood of prosecution. o Moreover, the Malaysian government has not voiced any objections to disclosure in this case, which the Second Circuit has found militates against a finding that strong national interests of the foreign country are at stake. In re Cargo (March 29, 2010) o French blocking statute. Blocks discovery unless by way of Hague convention or MLAT (Mutual Legal Assistance in Legal Matters). o Again, comity analysis as under Restatement Third of the Foreign Relations Law of the United States. Citing also Societe, just like Gucci. o Outcome of using Hague uncertain and will cause delay. o As for fear of actual prosecution under the French blocking statute, legislative history of the statute gives strong indications that it was never expected or intended to be enforced against French subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts. Adidas (Canada) Ltd. v. SS Seatrain Bennington, Nos. 80 Civ. 1911, 82 Civ. 0375, 1984 WL 423, at *3 (S.D.N.Y. May 30, 1984) (Leval, J.). o US interest in prosecuting antitrust also a strong factor. In re Fannie Mac

VX.

Proportionality-cost in line with what seekeing to do in case and cooperation-push by judges for parties to cooperate. Although appreciative of a federal regulatory agencys hiring of 50 contract attorneys and expense of more than nine percent of the agencys annual budget in order to comply with a stipulated discovery order, a U.S. Court of Appeals affirmed a trial court finding of contempt against the agency for efforts that were too little, too late. The court also affirmed a sanction requiring the agency to produce (although without waiver of privilege) deliberative process privilege documents

of the agency that had not been logged within a deadline for privilege logs. Former officials of the Federal National Mortgage Association (Fannie Mae) who were defendants in multidistrict litigation served a Fed. R. Civ. P. 45 third-party subpoena on the agency that regulated Fannie May. The defendants sought investigative files of the agency that preceded an agency report that prompted the litigation against the defendants. The agency opposed the Rule 45 subpoena on the ground that defendants should seek documents pursuant to the agencys disclosure regulations. The district court ordered the agency to respond to the subpoena. Defendants learned that the agency failed to search all of its off-site backup tapes and sought a contempt order. Defendants and the agency then stipulated that the agency would search the backup tapes after working with defendants to develop appropriate search terms. The stipulation also provided that the search would use terms specified by defendants. Defendants then submitted over 400 search terms that hit upon 660,000 documents and, according to the agency, about 80 percent of the email of the agency. The agency was able to produce nonprivileged documents on time but was not able to produce privilege logs for an additional two months despite hiring 50 contract attorneys and spending over $6 million or over 9 percent of the agencys annual budget on the process. The district court held the agency in contempt and, as a sanction, ordered the agency to produce deliberative process privileged documents to attorneys for defendants. The agency was not required to waive privilege that might exist for the documents. The court of appeals agreed with the conclusion of the district court that the stipulation did not require defendants to use only appropriate search terms that the agency had helped to develop. The literal language of the stipulation did not limit the search terms to be used, and nothing in the record suggested that defendants were willing to give up use of terms that they may have developed during other discovery in the multidistrict litigation. The court appreciated the agencys efforts to provide discovery but noted that the agency failed to produce all of its privilege logs until after it was held in contempt. Thus, while the court of appeals might not have held [the agency] in contempt, the trial courts conclusion that the agency had requested one extension too many was within the trial courts discretion. The trial courts sanction requiring production of privileged documents also was within its discretion because no waiver and thus no penalty would result from disclosure of the documents to defendants counsel before the agency reviewed the documents for privilege.