Confidential Attorney Work Product

Houston 7136230887 Dallas 2142374300 wwwbmpllpcom

E-DiscoveryThe New Demands of a Wireless World

Lisa Ketai James Smith Lynette Fons

Beirne Maynard amp Parsons LLP

What Kinds of Electronic Data Are We Talking About

bull Includes all relevant electronic data

ndash E-mail messages

ndash Word-processing files

ndash Databases

ndash Internet history files

ndash Calendars and schedules

CALENDAR SOFTWARE

This is a Hot Topic

E-Discovery is a hot topic

Wersquore Talking About Serious E-Mail Volume

Worldwide e-mail traffic per day totals about 141 billion messages

- Source The Radicati Group Inc

E-Mail v Paper Mail

bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail

bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter

bull E-mails are not treated with the same sanctity as paper correspondence

bull 1048729E-mails potentially last forever

E-Mail as Friend or Foe

bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private

propertybull E-mail can be very damaging but it also protect you in

future litigation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

This is a Hot Topic

E-Discovery is a hot topic

Wersquore Talking About Serious E-Mail Volume

Worldwide e-mail traffic per day totals about 141 billion messages

- Source The Radicati Group Inc

E-Mail v Paper Mail

bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail

bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter

bull E-mails are not treated with the same sanctity as paper correspondence

bull 1048729E-mails potentially last forever

E-Mail as Friend or Foe

bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private

propertybull E-mail can be very damaging but it also protect you in

future litigation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Wersquore Talking About Serious E-Mail Volume

Worldwide e-mail traffic per day totals about 141 billion messages

- Source The Radicati Group Inc

E-Mail v Paper Mail

bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail

bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter

bull E-mails are not treated with the same sanctity as paper correspondence

bull 1048729E-mails potentially last forever

E-Mail as Friend or Foe

bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private

propertybull E-mail can be very damaging but it also protect you in

future litigation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

E-Mail v Paper Mail

bull Authors think ldquosendrdquo means the e-mail is gone they donrsquot see the paper trail

bull Tendency to be informal in e-mails and use more colloquial language than would be used in a letter

bull E-mails are not treated with the same sanctity as paper correspondence

bull 1048729E-mails potentially last forever

E-Mail as Friend or Foe

bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private

propertybull E-mail can be very damaging but it also protect you in

future litigation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

E-Mail as Friend or Foe

bull E-mail can be an issue before or after litigation arisesbull Problem with e-mail people act as if they were their private

propertybull E-mail can be very damaging but it also protect you in

future litigation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Merck Vioxx

Dr Edward Scolnick wrote an e-mail acknowledging that cardiovascular links to Vioxx were ldquoclearly thererdquo before he reviewed all of the data regarding the risk

After reviewing additional data Dr Scolnick joined the company line ie there were no cardiovascular risks posed by Vioxx

Nevertheless he wrote to the Vioxx project team

ldquoI will tell you that my worry quotient is high I am actually in minor agonyrdquo

Houston Chronicle 12605

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Merck Vioxx

In another internal e-mail Scolnick referred to FDA as ldquobastardsrdquo and ldquodeviousrdquo for requesting additional safety data and for considering adding a black box warning label to Vioxx

In testimony Dr Scolnick tried to explain the emails He said he took issue with the regulatorsrsquo push for a black box warning because the FDA advisory committee had not recommended the labeling change

His explanation did not erase the black and white of the e-mails The Texas jury returned a verdict for $253 million

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

When the Impact of E-Mail Discovery is Not Understood

A 1996 e-mail from a Wyeth-Ayerst administrator regarding the side-effects of their diet drug Phen-Fen

1048729ldquocan I look forward to my waning years signing checks for fat people who are a little afraid of a silly lung problemrdquo

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Zubulake Seminal Case

In 2001 after Laura Zubulake a senior salesperson at UBS Warburg filed an EEOC claim a USB Warburg employee sent an e-mail to a company human resources specialist suggesting that Zubulake be fired ldquoASAPrdquo in part so she would not be eligible for year-end bonuses

ndash See Zubulake v UBS Warburg 2003 WL 21087884(SDNY May 13 2003)

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull 1999 93 of information was in digital format ndash only 7 paper

bull 2003 Survey of records management professionals found 47 did not include electronic records in their retention schedules 46 did not have a formal system for implementing legal holds 65 reported that legal holds did not include electronic records

Once a party reasonably anticipates litigation they must suspend routine document retentiondestruction policies and institute a litigation hold to ensure preservation of relevant documents

Institute a Litigation Hold

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

Understand the business functions involved and appreciate the supporting software

bull Insurance Informationbull Accounting Informationbull Medical Recordsbull Maintenance Recordsbull Quality Control Recordsbull Purchasing Informationbull Personnel Files bull Grant Writing Filesbull Product Researchbull Accrediting and Compliance Records

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

Active Data bull Visible in directories or applicationsbull Recycle Binsbull History Files

Latent Databull Deleted Filesbull Temporary Filesbull Printer Spoolsbull Meta Databull Hard Drive

Archival Databull Back Up Tapesbull CDsbull Zip Disksbull Network Servers

Determine the Scope and Sources of Documents

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Discovering Deleted Data

bull Deleted data may be reconstructed fromndash Hard drivesndash Network serversndash Storage media

bull Cost can be very high

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

Focus on storage devices storage media and the storage locations of the electronic information

bull Desktopsbull Laptopsbull Cell phonesbull Home computersbull CDsbull Diskettesbull Handheld devicesbull Backup media of all sortsbull Voice-mail systemsbull Memory sticksbull iPods

Determine the Scope and Sources of Documents

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull Must be reasonable

bull Must be routinely observed

Institute Appropriate Retention Policies

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull Incorporate custodian interviews or questionnaires

bull Keep a description of the guidelines and procedures followed in collecting the documents

bull Make sure the party doing the collecting understands the need to maintain the integrity of the electronic data

bull Seek ways to avoid disruption of normal business

bull Keep a record of collection efforts

Develop a Sound Collection Protocol

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull In Texas state courts to obtain electronic or magnetic information the requesting party must specifically request electronic or magnetic data and specify the form in which the he wants it produced

bull Objections including those based upon burden and expense are available

The Basic Rules of Discovery Apply

Scope

Relevance

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull Take advantage of technology to make your review more efficientndash Identifyndash Locatendash Categorize

bull Caution Electronic data may be altered when accessed

Review

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Do Not Attempt Document Collection Yourself

bull You should not try to collect or process electronic data yourself unless you have been trained and are well versed in computer forensics

bull Spoliation is a real danger

bull Evidence collectors are frequently called to testify on collection methods storage and preservation of the chain of custody

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Do Not Attempt Document Collection Yourself

bull Computer forensics investigativendash Recovering material previously thought to have been deleted or lostndash Restoring to usable format data contained in outdated formats eg

old e-mail systemsbull Electronic discovery litigation support

ndash Data collection and conversionndash Data hostingndash Filtering and searching data

bull Consultingndash Advising on electronic discovery issuesndash Acting as special masters

Three Main Categories of Service Offerings

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Response to Anticipated Litigation Discovery Request

bull Discuss options with a computer expertbull Consider how your opponent will process the data after it

has been accessedbull Negotiate the scope of production

Production

Note By forwarding documents - whether or not in the context of production - you may be sending data about its creation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

What Kind of Data Can Be Found

Data about data Detailed information describing a document or e-mail message even if that e-mail has been deleted

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Potential Criminal Liability

In Texas if you know that an investigation by a governmental entity has begun and you knowingly destroy or allow to be destroyed evidence you may be criminally liable ndash even if you did not know that the ldquoevidencerdquo was relevant to the specific legal action in question

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Not Just a Defense Issue

Remember Parties seeking information without first establishing a reasonable basis for the belief that it exists may have to bear the cost of the discovery effort

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

In Case You Thought They Were Kidding

Microsoft Microsoft balks at the governments frequent requests for e-mails because many revealed aggressive business tactics Microsoft eventually settles

Morgan Stanley Court imposes sanctions against Morgan Stanley and Ronald Perelman obtains $145 billion award

UBS Warburg In Zubulake v UBS Warburg US District Judge Shira Scheindlin makes an adverse inference ruling against UBS leading to a $293 million verdict

Merck Jury returns $253 million verdict against Merck amp Co Inc when a scientists e-mail suggests that the company knew two years before it put Vioxx on sale that it might cause heart problems

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Possible Sanctions for E-Discovery Errors

bull Adverse inference instruction which allows a jury to infer from the fact that a party destroyed certain evidence that the evidence would have been favorable to the partyrsquos opponent

bull Precluding a party from introducing any evidence or argument pertaining to a specific topic

bull Monetary sanctions such as costs expert fees and attorneysrsquo fees incurred as a result of the discovery abuse

bull Striking a partyrsquos pleadings and entering judgment against it

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

When Litigation is Even Suspected

bull Unless clear instructions are given immediately upon the expectation of legal action people will continue to act as if their e-mails are private correspondence and not subject to discovery

bull All impacted individuals must be immediately advised of potential or pending legal action and instructed to use caution in with their e-mails

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

E-Discovery Information

For a searchable database of e-discovery cases go to

httpwwwediscoverylawcom

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Wersquore Talking About Serious E-Mail Volume

ldquoWhen President Bush leaves office after eight years the White House is expected to turn over more than 100 million emails to the National Archives the government body entrusted with preserving Americas official recorded historyrdquo

- Wall Street Journal 122905

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Back to the Fundamentals

bull Some common sense is necessary or our entire civil jurisprudence system will come to a grinding halt

bull Virtually every judge with significant exposure to electronic discovery issues knows this

bull Individual judges with no technical training have tremendous power and discretion in this area

bull It is imperative to be open and to appear open in dealing with electronic discovery issues

bull The appearance of not playing fair in this context can have serious adverse consequences

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation

Acknowledgement

We would like to acknowledge the work of Fios Inc and of Sharon Caffrey John Coughlin and Michael Krueger of Duane Morris which served as the source for some of the information in this presentation