V3 show The Ever-Changing World of eDiscovery - Brad Holm ... · 5/20/2016 1 The Ever-Changing...

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The Ever-Changing World of eDiscovery: What You Need to Know in 2016

byBrad Holm

Phoenix City AttorneyMay 20, 2016

Overview

• The 2015 amendments to the FEDERAL RULES OF CIVIL

PROCEDURE became effective December 1 2015PROCEDURE became effective December 1, 2015.

• The amendments materially changed two longstanding eDiscovery principles and modified a third:

1. Rule 26(b)(1)—the scope of discovery (and hence, the scope of the duty to preserve);

2 R le 37(e) the spoliation doctrine; and2. Rule 37(e)—the spoliation doctrine; and

3. Rule 26(f)—inadvertent disclosure of privileged materials.

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1. Rule 26(b)(1)–Scope of Discovery

• In the eDiscovery context, the scope of discovery controls the scope of the duty to preserve.

• The duty to preserve is not enshrined in the FEDERALor ARIZONA RULES OF CIVIL PROCEDURE.

• It’s grounded in common law, and until the Di l i i i ieDiscovery explosion, it was a quiet, unassuming—

even sleepy—little duty that was not often awakened in civil litigation.

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• Now, the duty to preserve is an issue in every case. And the scope of this duty is commensurate with the scope of discovery.

• Before the 2015 FED. R. CIV. P. amendments, the duty to preserve did not require a party “[to] preserve every shred of paper, every e-mail or electronic document, and every backup tape.”1

_______________________1Zubulake v. UBS Warburg LLC (“Zubulake IV”), 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

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• Generally, the duty to preserve as it existed before the 2015 amendments required each party to preserve all l i ll d i f i (ESI) h f ll i felectronically stored information (ESI) that falls into one of

four categories:

“While a litigant is under no duty to keep or retain every document in its possession . . . it is under a duty to preserve [1] what it knows, or reasonably should know, is relevant in the action, [2] is reasonably calculated to lead to the di f d i ibl id [3] i bl lik l tdiscovery of admissible evidence, [3] is reasonably likely to be requested during discovery, and/or [4] is the subject of a pending discovery request.” 2

_______________________2 Id. (emphasis added); Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 250, 955 P.2d 3, 6 (App. 1997) (same).

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• The 2015 amendment rewrote Rule 26(b)(1), and the amendment replaced the “reasonably calculated” standard with a proportionality balancing test that would makewith a proportionality balancing test that would make former Chief Justice Feldman proud:

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering [1] the importance of the issues at stake in the action, [2] the amount in controversy, [3] the parties’ relative access to relevant information, [4] the parties’ resources [5] the importance of the discovery in[4] the parties resources, [5] the importance of the discovery in resolving the issues, and [6] whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”3

_______________________3 Emphasis added.

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• At common law, the duty to preserve evidence is triggered (1) when a party has notice that the evidence is relevant to

di liti ti (2) h th t h ld hpending litigation, or (2) when the party should have known that the evidence may be relevant to futurelitigation.4

• At such an early point in time, how will the party know what evidence is “proportional to the needs of the case” and therefore what evidence must be preserved even ifand therefore what evidence must be preserved, even if inadmissible?

_______________________4 Zubulake IV, 220 F.R.D. at 217.

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• To understand how the 2015 amendment to the scope of discovery in turn changes the scope of preservation, we begin by focusing on the proportionality concept.g y g p p y p

• First, the proportionality rule does not “place on the party seeking discovery the burden of addressing all proportionality concerns.”5 Rather, after the 2015 amendment all the burdens in a discovery dispute remain unchanged. In such a dispute, each party provides to the court relevant proportionality information in its possession, and the court makes a “case-specific determination of the appropriate scope of discovery.”6

_______________________5 Herrera v. Plantation Sweets, Inc., No. CV614-127, 2016 WL 183058, at n.1 (S.D. Ga. Jan. 14, 2016).6 2015 Comm. Note. 8

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• Second, the amendment’s effect is this: both parties will probably be required to make a proportionality showing.7

And a party may not refuse to respond to discovery simply by interjecting a boilerplate objection that the discovery is not proportional to the needs of the case.8

_______________________7 Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 468-69 (N.D. Tex. 2015).8 2015 Comm. Note. 9

1. Rule 26(b)(1)–Scope of Discovery• Third, the proportionality test applies foremost to the production

of relevant evidence: the new rule emphasizes “the need [for courts] to analyze proportionality before ordering production of relevant information.”9relevant information.

• The 2015 amendment was designed to encourage judges to restrict overly broad discovery, primarily discovery of relevantinformation.10

• But Chief Justice Roberts has said that the 2015 amendment “crystallizes the concept of reasonable limits on [all] discovery through increased reliance on the common-sense concept of g pproportionality.” 11

_______________________9 State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14CIV9792WHPJCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (emphasis added).10 Robertson v. People Magazine, No. 14 CIV. 6759 (PAC), 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015).11See 2015 Year-End Report, quoted in Sprint Commc’ns Co. L.P. v. Crow Creek Sioux Tribal Court, No. 4:10-CV-04110-KES, 2016 WL 782247, at *4 (D.S.D. Feb. 26, 2016).

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So, what’s the status of the common-law duty to preserve everything—even inadmissible or irrelevant evidence—if the evidence is “reasonably calculated to lead to thethe evidence is reasonably calculated to lead to the discovery of admissible evidence”?

• Three recent cases rely on an old SCOTUS opinion interpreting another deleted phrase from old Rule 26. This view holds discoverability under the 2015 amendments still extends “‘broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense.”12

_______________________12 LightSquared, Inc. v. Deere & Co., No. 13CIV8157RMBJCF, 2015 WL 8675377, at *2 (S.D.N.Y. Dec. 10, 2015) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).

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Conclusions about the duty to preserve:

1. When the duty to preserve first arises, it’s too early to evaluate which evidence—particularly which inadmissibleevaluate which evidence—particularly which inadmissible evidence—the court might order your client to produce.

2. The proportionality test offers no black-and-white rule to limit the scope of the duty to preserve.

3. The best working rule: preserve even inadmissible evidence if it could reasonably lead to anything that “could bear on” any party’s claim or defensebear on” any party’s claim or defense.

4. Practice pointer: discuss preservation concerns at the Rule 26(f) meet-and-confer. See Rule 26(f)(2) (parties must discuss “any issues about preserving discoverable information” at Rule 26(f) conference).

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Implementing the Duty to Preserve

• The duty to preserve evidence is triggered (1) when a party has notice that the evidence is relevant to pendinglitigation, or (2) when the party should have known that the evidence may be relevant to future litigation.13

• The first order of business after the duty has arisen: convene a claims-and-defenses meeting with senior and knowledgeable city officials and lawyers (inside and outside counsel, if retained).outside counsel, if retained).

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_______________________13 Zubulake IV, 220 F.R.D. at 216.


The purposes of a claims-and-defenses meeting include:

1. The team should discuss and outline the merits of the parties’ claims and defenses to identify issues and in turn to identifyclaims and defenses to identify issues and in turn to identify categories of ESI relevant to the issues.

2. Once the issues and ESI categories are identified, the team should determine where related information resides. Typically this effort requires the team to identify which employees generate, receive, or access potentially relevant ESI. (These employees are called “key players” or “key custodians.”)p y y p y y )

3. The team should solicit IT’s help to consult the City’s document-retention policy and to begin locating and securing relevant ESI.

4. The team should develop a preservation plan.

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The preservation plan should address these requirements:

1. A lawyer must prepare and communicate a litigation-hold t ll k t di d t ITto all key custodians and to IT.

2. A lawyer or paralegal must interview and explain the duty to preserve to all key custodians and to IT.

3. A qualified person (with IT training) must search key custodians’ sources of ESI.

4. A qualified person must collect, isolate, and protect the ESI.

5. A qualified vendor (or experienced IT person) must process and produce the ESI.

6. In some cases, a lawyer must monitor compliance with the litigation-hold.

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2. Rule 37(e)–Spoliation

• Old Rule 37(e) (in a way) permitted document destruction.

• A party could not be sanctioned under FED. R. CIV. P. 37(e) for ESI “lost as a result of the routine, good-faith operation of an electronic information system”—“absent exceptional circumstances.”

• Based on this language, old Rule 37(e) created a “safe h b ” f d t t ti li i th t i t llharbor” for document retention policies that in turn call out a document destruction schedule.

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• New Rule 37(e) abolishes the explicit safe-harbor rule and codifies spoliation rules for breaching the duty to preserve:

F P E S I IfFAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) l fi di th t th t t d ith th i t t t d i(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment. 17


• New Rule 37(e)(1) allows the court to fashion a remedy for a breach of the duty to preserve evidence under these conditions:

1. The duty to preserve has been triggered—specifically, litigation has become reasonably foreseeable or has actually been filed;

2. The party failed to take “reasonable steps to preserve” the specific ESI;

3. The ESI was lost;

4. The ESI cannot be restored or replaced through additional discovery; and

5. Another party has suffered prejudice.18

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• If these five conditions have been met, the court “may order measures no greater than necessary to cure the

j di ”prejudice.”

• The court acts remedially not punitively: the remedy chosen by the court must be narrowly tailored to remedythe loss, not to punish the party responsible for the loss.

• To invoke this part of the rule, the injured party need notshow that the responsible party acted with a culpable stateshow that the responsible party acted with a culpable state of mind (i.e. negligently, grossly negligent, or in bad faith).

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Under Rule 37(e)(1), the range of measures to cure the prejudice (if all five conditions have been met) include:

• The court may forbid the party that failed to preserve information from introducing certain evidence.

• The court may permit the parties to present evidence and argument to the jury regarding the lost information.

• The court may instruct the jury about the lost information to assist the jury in its evaluation of evidence or argumentto assist the jury in its evaluation of evidence or argument about the loss (but an adverse-inference instruction is not permitted under Rule 37(e)(1)).14

_______________________14 2015 Comm. Note.

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New Rule 37(e) does not use the word “relevant” to modify the ESI to be preserved. Instead, it addresses ESI “that should have been preserved in the anticipation or conduct of litigation.”15

• This phrase may require a party to preserve discoverableevidence, which (in the past) included even inadmissible or irrelevant evidence.

• The new discoverability test will always be fact- and case-specific: to be discoverable the evidence must be nonprivileged information that is “relevant to the claims and d f ” d “ i l h d f h ” bdefenses” and “proportional to the needs of the case”—but the evidence “need not be admissible.”16

_______________________15 Emphasis added.16 Fayda, 2015 WL 7871037, at *2.

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• Rule 37(e) does not apply if a party has undertaken “reasonable steps to preserve”—even though some relevant or discoverable ESI has been irretrievably lostor discoverable ESI has been irretrievably lost.

• This approach rejects the common-law rule (in some jurisdictions) that “any destruction of documents [after the duty to preserve has been triggered] is, at minimum, negligent”—justifying sanctions if the lost ESI was relevant (i.e., helpful to the movant).17

• The amended rule requires “reasonable steps,” notperfection.18

_______________________17 Zubulake IV, 220 F.R.D. at 220.18 Marten Transp. Ltd. v. Platform Advert., Inc., No. 14-CV-02464-JWL-TJJ, 2016 WL 492743, at *10 (D. Kan. Feb. 8, 2016).

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• The remedy to “cure the prejudice” for a Rule 37(e)(1) ESI loss does not include the sanctions specified in Rule 37(e)(2). Thus, an adverse-inference instruction is notpermitted under Rule 37(e)(1).

• The Rule 37(e)(2) sanctions are available “only upon [the court] finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”19 This is specific intent, not general intent (such as general bad faith).

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_______________________19 Emphasis added.


There are three alternative remedies (specified in Rule 37(e)(2)) that the court may order upon a finding that a party

t d ith th i t t t d i th t f th l tacted with the intent to deprive another party of the lost information’s use in the case:

1. The court may presume that the lost information was unfavorable to the party.

2. The court may instruct the jury that it may or must presume the information was unfavorable to the partypresume the information was unfavorable to the party (using one of three adverse-inference instructions that vary in harshness and effect).

3. The court may dismiss the action or enter a default judgment.

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Conclusions about sanctions: the 2015 amendments to rule 37(e) modify the existing common law of sanctions in at l t t i t tleast two important ways.

1. The court may no longer give an adverse-inference jury instruction based on the responsible party’s negligence or gross negligence in losing ESI. The injured party must show intent to deprive—not “reckless,” “willful,” or “bad-faith” conduct.

2. Arguably, the sanctions criteria in Rule 37(e) are exclusive, and they prevent courts from invoking their “inherent power” to order other sanctions under the same circumstances.

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3. Rule 26(f)–Inadvertent Disclosure of Privileged Materials

Current law of privilege waiver:1 C t d F R E 502 hi h li i1. Congress enacted FED. R. EVID. 502, which applies in

federal and state courts and which governs waiver of attorney-client privilege and work product.

2. Under Rule 502(a), there is no more inadvertent subject-matter waiver.

3 Under Rule 502(b) an inadvertent disclosure does not3. Under Rule 502(b), an inadvertent disclosure does not operate as a waiver of the specific communication or document if the privilege holder took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error.

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Current law of privilege waiver (cont.):

4 U d R l 502(d) f d l t d th t th4. Under Rule 502(d), a federal court may order that the privilege or protection is not waived by a disclosure connected with the pending case, and any disclosure is not a waiver in any other federal or state proceeding.

5. Under Rule 502(e), a clawback agreement in a federal proceeding binds only the parties to the agreement, unless incorporated into a court order.

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Clawback agreements can comprehensively address and go farther than Rule 502 and FED. R. CIV. P. 26(b)(5)(B) by a t e t a u e 50 a d . . C V. . 6(b)(5)( ) byproviding more extensive protections.

Different protections for inadvertent waiver:1. Notice protection (ER 4.4(b)).

2. Return/sequester/destroy protection (Rule 26(b)(5)(B)).

3. Retrieval protection (Rule 26(b)(5)(B)).

4. Subject-matter protection (Rule 502(a)).

5. Specific-document protection (Rule 502(b)).

6. Post-production-review protection (Rule 502(b)(3)).

7. Read protection (clawback agreement).28

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3. Rule 26(f)–Inadvertent Disclosure of Privileged Materials• The 2015 amendment to Rule 26(f)(3)(D) makes explicit

that the parties must meet and confer about a potential l b k d “ h h k hclawback agreement and “whether to ask the court to

include their agreement in an order under FEDERAL RULE

OF EVIDENCE 502.”19

• The 2015 amendment to Rule 16(b)(3)(B)(iv) authorizes the court to “include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under FEDERAL RULE OF

EVIDENCE 502.20

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_______________________19 Emphasis added.20 Emphasis added.


Inadvertent waiver of privileged public records (in litigation):

• Rule 502 applies to “[a] disclosure made in a federal [or• Rule 502 applies to [a] disclosure . . . made in a federal [or state] proceeding.”

• The rule contemplates a disclosure under FED. R. CIV. P.26(a)(1)(A)(ii) (initial disclosure statements) and FED. R. CIV. P. 34 (production of documents).

• But there’s a reasonable argument that a public-records disclosure made to an opposing litigant (in pending litigation to which a city is a party) constitutes a disclosure covered by FED. R. EVID. 502—but no cases on point.

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3. Rule 26(f)–Inadvertent Disclosure of Privileged MaterialsInadvertent disclosure of privileged public records (outside litigation):

• No Arizona statute governs the inadvertent disclosure of privileged public records.

• California’s Public Records Act includes a statute providing that any “disclosure” of a public record waives all privileges.

• The California Supreme Court recently held that the statute does not convert an inadvertent disclosure to a privilegedoes not convert an inadvertent disclosure to a privilege waiver: to constitute a waiver the disclosure must be “a voluntary and knowing disclosure,” not an “accidental,” “slip-up,” “mistaken,” or “inadvertent” disclosure. 21

______________________

21Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1184-88, 366 P.3d 996, 999-1003 (2016) 31

Questions?

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Phoenix’s Litigation Hold Template

CITY OF PHOENIX

OFFICE OF THE CITY ATTORNEY

To: Addressees

Date:

From: Brad Holm Phoenix City Attorney

Subject: [Claimant or case name]

Confidential/Attorney-Client Privileged Communication The City has received a [notice of claim/complaint/charge/citation/etc] on behalf of ____________ regarding ________________. The City intends to vigorously defend the claim.

The law requires us to take immediate steps to preserve all paper records, electronic documents or data, and other materials (in whatever format) that may be related to this matter. You have been identified as a person who may have related paper records, electronic data, or other materials (“relevant documents”). By this memorandum, you are notified that you must immediately preserve any and all relevant documents.

Relevant documents must be preserved wherever they may be found, including your office computer; home computers; iPhone, other smartphone, or similar handheld devices; and portable electronic media such as disks and thumb drives. Your failure to preserve all relevant documents may result in legal sanctions against the City.

I (or another Law Department attorney) will schedule a meeting to discuss this litigation hold. Your attendance at the meeting is mandatory. If you are unable to attend due to a scheduling conflict or you believe that you do not possess any relevant evidence, please contact me immediately.

Relevant documents may exist in a number of formats including:

• Paper documents such as letters, memoranda, agendas, calendars, faxes, notebooks, reports, handwritten notes, presentation materials, draft documents, files (even desk files maintained by individual employees), photographs, etc.

• Audio, video, or other media recordings

• Electronically stored information (“ESI”), in its original format, including e-mail, attachments to e-mail, and other electronic communications, word-processing files, spreadsheets, databases, calendar and scheduling information, Internet usage files, Internet history files and preferences, network access information, graphical

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image format files, pdfs, TIFFs, digital recordings, voicemail messages, backup files and tapes containing electronic data, metadata, and duplicates of all of these.

You must immediately preserve relevant documents regardless of (1) who authored them, (2) when they were generated, or (3) whether they are subject to any type of privilege. But please indicate the relevant documents you believe are privileged or confidential. Any relevant documents in archives that are related to this matter must be recovered and maintained, and any relevant documents that are created in the future must be preserved as well.

In order to avoid deleting or destroying relevant documents, the City must take immediate steps to preserve and secure them. Please promptly determine whether you have in your possession, custody, or control any relevant documents. If so, please take the following action. 1. For the time being, you must suspend automatic destruction of all relevant documents, in whatever form and wherever located, regardless of the City’s document retention policies. The Law Department and Information Technology Services will work closely with you to help you identify relevant sources of evidence and gather them. When collected, the relevant documents will be turned over to the Law Department. In many cases, with appropriate safeguards, existing electronic files can be copied onto a disk or other storage device so that the devices on which they are currently stored can continue to be utilized. Please consult with us, however, before doing this because we must ensure that the appropriate evidentiary trail is preserved.

2. Do not copy relevant documents yourself. If you have relevant documents, please immediately contact the Law Department or Information Technology Services. They will assist you in copying the documents.

3. Especially do not copy, alter, or delete ESI. The laws prohibiting destruction of evidence apply to ESI in the same manner as to paper documents and other evidence. Because of its format, ESI is easily modified, corrupted, or deleted. The failure to preserve and retain ESI as outlined in this notice constitutes destruction of evidence. Accordingly, employees must make every reasonable effort to preserve this information until further notice from the Law Department.

4. Continue to preserve relevant documents until the Law Department specifically notifies you that this litigation hold has been released. Importantly, evidence preservation is a continuing obligation. Here, the pending lawsuit could last for several months. Consequently, this litigation hold will remain in effect the entire time the case is pending. If you destroy or delete relevant documents between now and the end of the case, your failure to preserve could subject you, the City, or other employees to civil or criminal penalties. In addition, employees who fail to comply with this litigation hold may be subject to disciplinary action, up to and including termination.

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If you have any questions concerning this document preservation request, please contact ______________at______________.

Acknowledgement

(Please return to Law Department)

I acknowledge I have read the above litigation-hold memorandum regarding [claimant or case name]. I will immediately conduct a reasonable search for responsive paper records, electronic data, and other materials. I will not delete any electronic documents, data, or other ESI from any source that I believe may contain relevant documents. I understand that this preservation request is ongoing and requires me to continue to preserve relevant paper records, electronic documents, data, and other ESI and materials, including those created or received both before and after receipt of this litigation hold.

Dated: ___________________

______________________________________ Signature

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EXHIBIT “A”

Key Custodian Interview Forms

E-Custodian Interview Form

Salman v. City of Phoenix

Privileged and Confidential 1

Name: Title: Department: Phone Email Numbers of years in this position: Previous Position (if applicable) Interview date:

Litigation Hold

Yes No Did you receive the litigation hold memo/letter regarding this litigation? Date received?

Do you know of any potentially relevant information deleted or modified after that date? If so what information has been deleted or modified?

E-Mail

Yes No

Do you ever print your e-mail and put it in subject or chron folders? If so, do you still have those folders and where are they located?

Do you ever save/archive emails? If so where are they saved?




E-Documents

Yes No Where do you store your work related documents such as word & excel? ( i.e. what drive) Folders on drive that are relevant to this litigation

Do you save or back up and work related documents to the “C:” drive (e.g., “My Documents”) Folders that are relevant to this litigation

Do you use a shared drive? Do you save to specific folders or areas on the shared drive?

What type of documents do you generate or receive?

Word Excel Pictures Others – Databases? Do you have any work-related documents on a personal computer?

Do you forward documents/emails to your home computer? Home email address?

Have you ever saved work-related documents to an external storage device, such as a USB flash drive, external hard drive, CD or DVD? If so, do you still have any files stored on any of those devices? Where is the device




Do you have a laptop (or tablet computer such as an iPad) that you use for work? If so, where is it located? Does it contain any potentially relevant electronic documents?

Do you have a blackberry, PDA, or other similar device that you use for work? If so, are there any electronic documents saved on that device? Are there any relevant e-mail messages or text messages saved on that device? Who is the provider?

Is your calendar on your computer? Is this a network or standalone application?

Is any of your ESI encrypted? If so what is encrypted and what is the password

Are you aware of any third parties holding potentially-relevant electronic information? If so, who?

Paper Documents

Yes No

Have you kept and/or preserved any potentially-relevant paper documents? If so where are they physically located? Your office? File room? File identification name or number Storage? File identification name or number




Estimated number of pages/boxes? Have you been advised to retain/preserve the document until they can be collected? Are you aware of any third parties holding potentially-relevant paper documents? If so who?

Participants

Signature Printed Name Date Signature Printed Name Date Signature Printed Name Date




Media Form Name: Title: Address: City: State: Zip: Phone (w): Phone (h) E-mail: Media Type Serial Number Notes

E-Custodian Interview Form for IT

Pima County v. Town of Marana C20116094


Name: Title: Department: Phone and Email Numbers of years in this position: Previous Position (if applicable) Interview date:

Litigation Hold

Yes No Did you receive the litigation hold memo/letter regarding this litigation? Date received? Who are the information technical service division personnel for the Town of Marana? Did they receive the litigation hold memo/letter regarding this litigation? Date received?




Network

Yes No What OS does the Town of Marana utilize? Which drives are accessible by the Key Custodians? Where are network servers physically located? Where is the data virtually stored? Is the ESI accessible?

Storage/Backup

Yes No

Are the network drives backed up? If so: What is the backup schedule? What is the backup medium? What is the backup format? Where are the backups physically located? Is there a rotation schedule? Is the backed up ESI accessible?




RETENTION POLICY

Yes No Is there any schedule by which ESI is routinely purged from the network? If so, what is the schedule and what ESI is purged. ? Has this process been interrupted for the Key Custodians since the litigation hold relating to his matter?

EMAIL

Yes No

Which email system is used (lotus Notes/Microsoft Exchange?) ? Version? Where are the email servers physically located? Is the email accessible?

EMAIL STORAGE/BACKUP

Yes No

Are the email drives backed up? If so: What is the backup schedule? What is the backup medium?




What is the backup format? Where are the backups physically located? Is there a rotation schedule? Are the backups accessible?

EMAIL RETENTION POLICY

Yes No

Is there any schedule by which emails are routinely purged/deleted? If so: What is the schedule? Identify what is purged/deleted? Has this process been interrupted for the Key Custodians? Is the calendar integrated with email? Is the retention schedule for email different that the retention schedule for the calendar?




SYSTEM AND NETWORK MAINTENANCE

Yes No

Who is responsible for maintaining the computer equipment for the Key Custodians? Are any computer changes anticipated? Upgrades/Replacements? If so, what is anticipated and when? Are there any significant software changes anticipated? If so, what is anticipated and when?

EMAIL/MAILBOX MAINTENANCE

Yes No

Who is responsible for maintaining the email/mailbox for the Key Custodians? Are any changes anticipated? Upgrades/Replacements? If so, what is anticipated and when? Are there any significant software changes anticipated? If so, what is anticipated and when?




MISCELLANEOUS

Yes No

Are there websites that contain potentially relevant information? Where are the systems physically located? Who maintains them? What do they contain? Are there blogs that contain potentially relevant information? Where are the systems physically located? Who maintains them? What do they contain? Are there cell phones that contain potentially relevant information? Who owns the phone Who is the service provider What is the telephone number Are their voice mails, text messages or instant messaging that contain potentially relevant information?




Participants

Signature Printed Name Date Signature Printed Name Date Signature Printed Name Date




Media Form Name: Title: Address: City: State: Zip: Phone (w): Phone (h) E-mail: Media Type Serial Number Notes

Inadvertent Disclosure Agreement

INADVERTENT DISCLOSURE AGREEMENT

Ealth Tech, Inc. ("Emth Tech"), the City of Phoenix. ("City"), Malcolm Pimie, Inc. ("MPI"), Jon and Terri Westervelt ("Westervelt"), and Federal Insurance Compuny ("Federal") are parties to three lawsuits currently pending in Maricopa County Superior COUlt as Cause Nos. CV 2005-019693, CV 2005-019161, and CV 2005-008647, now consolidated for pretrial proceedings under Cause No, CV-2005-008647 ("the Litigation").

The Litigation will involve the production of voluminous documentation (potentially millions of documents) such that even a careful review may not prevent the inadvertent disclosure of documents immune from discovery under the attorneyclient privilege, the attorney work-product doctrine, the protection afforded to trade secrets, or other recognized privileges or protections. To protect against inadvertent disclosure of documents and unintentional waiver of any privilege or protection, the parties (including their parents, subsidiaries, predecessors and successors, together with the parties' respective legal counsel), agree as follows.

L Definitions:

n. The term "document" shall be interpreted broadl y to include all documents within the scope of discovery under the Arizona Rules of Civil Procedure. The telm includes, but is not Iimitcd to: (1) all written, printed, typed or graphic matter of every kind and description, whether draft or final, original or reproduction, and (2) all electronically stored information,

b. The term "privilege" shall be construed to mean the attomey-client privilege, the work-product doctrine, and any other privilege or protection, including the right to protect an entity's trade secrets.

c. The term "trade secret" shall include proprietary information, and shall he included for purposes of this Agreement as patt of any teference to privileged matters or priviJeged documents.

2. Production of Privileged Matter and Trade Secrets to be Deemed Inadvertent and Not Waiving Relevant Privilege.

Except as provided in paragraph 5, if any party to this Agreement discloses or produces to any other party or any expert any document purportedly protected, in whole or in pUrl, by a privilege, the disclosure or production shall be deemed inadvcnent and shull not waive any applicable privilege as to (1) that document, (2) any part thereof, (3) any other document or information relating thereto, or (4) the game or related subject matter, The palties represent and covenant that they will not take the position in any proceeding that any such disclosure or production constitutes a wiliycr of the evidentiary privilege unless otherwise permitted by this Agreement

]. Request for Return of Protected Material, and Covenant to Return Protected Material.

If any document or documents that are claimed to be subject to a privilege are produced or disclosed, the producing party, or its legal counsel, may make a written request for the return of the document or documents. Effective the date of this Agreement, the request must include a privilege log including (i) the Bales range of the withheld document or documents; (ii) (he names of the author and all recipients (including "cc" and "bcc" recipients); (iii) the date of the document; (iv) the privilege asscrted; (v) a description of thc withheld document that will enable other parties to aSsess the applicability of the privilege or protection; and (vi) the custodian from whose fj les the document came. The request also must be made no more than 30 days arter actual discovery of the inadvertent production or disclosure. This 30-day limit applies only to potentially privileged documents that are first discovered after the date this Agreement is executed. If any parly discovered potentially privileged documents before the date this Agreement is execuled, the party must make a request for the return of the document or documents within 60 days after the date this Agreement is executed unless such a request already has been made. Except as noted in this paragraph, the terms ofthis Agreement apply to all potentially privileged documents regardless of when the inadvertent production of such documents is discovcrcd.

Cpon rcceipl of any such request, the receiving party shall not read or make any usc of the documents or their su~iect matter, and shall instruct all personsincluding clients, experts, other lawyers, etC.-who have received or have access to the same to refrain from any further examination or use. Within a reasonable time of rcceipt of any such written request-not to exceed 25 business days-the paper documents and all copies thereof shall be destroyed and the electronic documents and all copies thereof deleted by the receiving party, who shall so certify to the producing pany or its counsel. The receiving paI1y shall destroy or delete all copies made of the documents, including all copies provided by the receiving party to any expert or third party. Also, the receiving party shall destroy or delete all notes or summaries that refer to or are deri veu from the documents' content and shall remove references to the documents in expert reports, disclosure statements, or written discovery responses. The parties shall ase their best efforts to retrieve electronic versions of the purportedly privileged documents from all who have received them, and to otherwise dclete electronic versions of the purpol1edly privileged documents that exist on electronic media.

4. Duly or Counsel to Rerrain in First Instance.

If any pany, its legal counselor any expert receives a document that on its face appears to be subject to a privilege, the receiving patty or its legal counsel shal1, WlthoUl "'I'lliting a request for return of the document, refrain from examining the document. take reasonable steps to prevent the parties' experts from reading the document, notify the producing party of the document's production, and abide the instructions or the producing party regarding the document. If the producing party docs not rcspond to such notice within 30 days, it gives up any right to claim privilege for tbe document at issue and the receiving party may thereafter review and make use of the document. Documents that on their face are pri vileged are addressed

in this section 4. Notwithstanding, and except for those matters covered in Section 5, the producing palty's right to return of a document not privileged on its face shall expire 30 days before service of initial expert reports if the document was relied on by the receiving party's expert, or five months after the service of initial expert reports if the document was not relied on by the receiving party's expelt.

5. Limited, Voluntary Waiver Under Certain Circumstances.

The parties agree that (1) any decision by a party not to ask for the return of a privileged document and (2) any failure to do so within 30 days of discovering the inadvertent production or disclosure will not result in a waiver of any applicable privilege with respect to the subject matter of the document, and the parties agree they will not take the position in any proceeding that any such decision constitutes a waiver in any respect. The parties further agree that a producing party's decision not to ask for the return of a document or failure to do so within 30 days will constitute a waiver of privilege relating to that document only and n.ot (1) to any other duplicate or near duplicate of the document, or (2) to the ~ubject matter covered by the document. The patties also agree that nothing in this Agreement shall limit a producing pm1y's waiver of any privilege as to a document, or its subject matter, if the producing party makes affirmative use of that document in the litigation.

Order.

6. Parties May Still Contest Nature and Fact of Privilege.

a. This Agreement docs not apply to waivers of privilege that may have arisen outside of the parties' formal or informal production of documents beforc 8/1212005.

h. Nothing in this Agreement shall preclude the receiving party from contesting the applicability of an asserted privilege, provided the recciving party first complies with paragraph 3 above. The receiving party may bring the matter before tile discovery master and/or the COUlt to contest the issue of privilege status only, but not waiver by production, unless the producing party has made un affirmative use of the information in question. The parties agree that they will file all motions challenging privilege promptly and, if any decision of the Discovery Master is appealed to the Comt, such appeal shall be fi led under seal.

7. Intention to Protect Against Third Parties and to Reduce to Court

To the fullest extent provided by Jaw, this Agreement shall protect inadvertcntly produced privileged materials from persons and entities not parties to this Agreemcnl. Accordingly, the palties will submit this Agreement to the court for its rcview. findings of fact, and entry of an order adopting the tenns of this Agreement. In the court's discretion, the order shall state that: (1) the production herein was compelled by court order and Rule 26.1; and (2) the parties attempted to screen oul privileged material from the volume of material produced and within the

amount of time that the court allowed for the parties to spend on the production. See Louis H. Hopson v. The Mayor and City Council of Baltimore, 232 F.R.D. 228, 63 Fcd.R.Scrv.3d 582, 97 Fair EmpI.Prac.Cas. (BNA) 617, D.Md., November 22, 2005.

8. Retroactivity.

The provisions of this Agreement are retroactive to, and are deemed fully effecti ve on, the date any party first prodtlced any document to any other party rclating to {hc UPO I Projcct, the dispute out of which the Litigation arises.

9. Authority.

The parties' respective counsel represent and warrant that they are authorized to sign this Agreement on behalf of their individual clients.

EA.RTH TECH, INC.

Bf~2-AV~ lts counsel

CITY OF PHOENIX

Bydf!$L lts Gunsel

MALCOLM PIRNlE, JNC.

(~ r By ~

Its'V'nsel

Dated: ID /JJg,-l-t ____ _

.ION AND TERRI WESTERVELT

By~~_~, _____ _ Their counsel

Dated:

FEDERAL INSURANCE COMPANY

By ___ --------Its counsel

Dated: _____ _

Dated: \D /j }(t~t __ _

JON AND TERRI WESTERVELT

By _____ _ Their counsel

Dated:


By _________ _ Its counsel

Dated: _____ _

MALCOLM PIRNlE, INC.

By Us counsel

Dated: _________ _



By.,--_----, _____ _ Its counsel

Dated: ________ _

MALCOLM PIRNlE, INC.

By ____ . Its counsel

Dated: ________ _


By Their counsel

Dated: ____ -,-___ _

~~~~:NCECOMPANY ?

Dated: 10 - 10 - OJ

Example of Rule 502(d) Order

MODEL DRAFT OF A RULE 502(D) ORDER, 81 Fordham L. Rev. 1587

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

81 Fordham L. Rev. 1587

Fordham Law Review

March, 2013

The Philip D. Reed Lecture SeriesEvidence Rules Committee: Symposium On Rule 502

MODEL DRAFT OF A RULE 502(D) ORDER a1

Copyright (c) 2013 Fordham Law Review

Form of Order Implementing Rule 502(d) of the Federal Rules of Evidence When Information Protected by the Attorney-ClientPrivilege or as Attorney Work-Product is Produced by a Party.

(a) No Waiver by Disclosure. This order is entered pursuant to Rule 502(d) of the Federal Rules of Evidence. Subject to theprovisions of this Order, if a party (the “Disclosing Party”) discloses information in connection with the pending litigation thatthe Disclosing Party thereafter claims to be privileged or protected by the attorney-client privilege or work product protection(“Protected Information”), the disclosure of that Protected Information will not constitute or be deemed a waiver or forfeiture--in this or any other action--of any claim of privilege or work product protection that the Disclosing Party would otherwise beentitled to assert with respect to the Protected Information and its subject matter.

(b) Notification Requirements; Best Efforts of Receiving Party. A Disclosing Party must promptly notify the party receivingthe Protected Information (“the Receiving Party”), in writing, that it has disclosed that Protected Information without intendinga waiver by the disclosure. Upon such notification, the Receiving Party must--unless it contests the claim of attorney-clientprivilege or work product protection in accordance with paragraph (c)--promptly (i) notify the Disclosing Party that it willmake best efforts to identify and return, sequester or destroy (or in the case of electronically stored information, delete) theProtected Information and any reasonably accessible copies it has and (ii) provide a certification that it will cease further review,dissemination, and use of the Protected Information. Within five business days of receipt of the notification from the ReceivingParty, the Disclosing Party must explain as specifically as possible why the Protected Information is privileged. [For purposesof this Order, Protected Information that has been stored on a source of electronically stored information that is not reasonablyaccessible, such as backup storage media, is sequestered. If such data is retrieved, the Receiving Party must promptly take stepsto delete or sequester the restored protected information.]

(c) Contesting Claim of Privilege or Work Product Protection. If the Receiving Party contests the claim of attorney-clientprivilege or work product protection, the Receiving Party must--within five business days of receipt of the notice of disclosure--move the Court for an Order compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”). TheDisclosure Motion must be filed under seal and must not *1588 assert as a ground for compelling disclosure the fact orcircumstances of the disclosure. Pending resolution of the Disclosure Motion, the Receiving Party must not use the challengedinformation in any way or disclose it to any person other than those required by law to be served with a copy of the sealedDisclosure Motion.

(d) Stipulated Time Periods. The parties may stipulate to extend the time periods set forth in paragraphs (b) and (c).

(e) Attorney's Ethical Responsibilities. Nothing in this order overrides any attorney's ethical responsibilities to refrain fromexamining or disclosing materials that the attorney knows or reasonably should know to be privileged and to inform theDisclosing Party that such materials have been produced.

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000607&cite=USFRER502&originatingDoc=I5f256a3c91ed11e28578f7ccc38dcbee&refType=RB&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)#co_pp_5ba1000067d06

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000607&cite=USFRER502&originatingDoc=I5f256a3c91ed11e28578f7ccc38dcbee&refType=RB&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)#co_pp_5ba1000067d06

MODEL DRAFT OF A RULE 502(D) ORDER, 81 Fordham L. Rev. 1587

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

(f) Burden of Proving Privilege or Work-Product Protection. The Disclosing Party retains the burden--upon challenge pursuantto paragraph (c)--of establishing the privileged or protected nature of the Protected Information.

(g) In camera Review. Nothing in this Order limits the right of any party to petition the Court for an in camera review of theProtected Information.

(h) Voluntary and Subject Matter Waiver. This Order does not preclude a party from voluntarily waiving the attorney-clientprivilege or work product protection. The provisions of Federal Rule 502(a) apply when the Disclosing Party uses or indicatesthat it may use information produced under this Order to support a claim or defense.

(i) Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are inapplicable to the production of ProtectedInformation under this Order.

Footnotesa1 This Model Rule was drafted by the participants of the Symposium on Rule 502, held on October 5, 2012, at Charleston School of

Law in Charleston, South Carolina.

81 FDMLR 1587

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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