YourABA July 2012 Masthead

E-discovery essentials: The 4 W's
of preservation

E-discovery is a complex, multistep endeavor that requires careful management at each point in the process. A key step is the effective preservation of ESI, or electronically stored information. A panel of experts shared best practices for this step, and others, in the ABA CLE “An Introduction to E-Discovery.”

“The first thing to do is to think about the four W's, which are the who, when, where and what of preservation,” says Matthew Christoff, an e-discovery lawyer at Seyfarth Shaw, in Chicago.

Who. “Who you should be preserving information for are all employees who had involvement with the issues related to the litigation and especially the key players,” Christoff says.

"You might not need
to review and produce all the information that you preserve, but you should preserve broadly," Christoff says.

Zubulake v. UBS Warburg LLC is a pivotal case because it refers to custodians, or the appropriate persons, that must be included on initial disclosures. This should include “each individual likely to have discoverable information.” But “that doesn't mean you have to preserve if someone may have sent a few emails that don't relate to the matter: Just because they've been included on the correspondence doesn't necessarily mean they need to be preserved,” Christoff says.

The most important thing is the nature of the custodians' relationships to the allegations, says Sarah Knight, e-discovery lawyer at Seyfarth Shaw, in Chicago. “Your key players are going to be front and center to really scrutinize,” she says. “There is this thought out there that there's a smoking-gun email in every case. If you can't find it for that key player, be ready to defend your process and approach.”

Analyze the subject matter you receive to determine who's really involved in events that are alleged in the complaint, Knight says. “Let's say you have a wrongful termination complaint,” she continues. “You probably are going to go to their immediate supervisor, their indirect supervisor and other co-workers to figure out where your data is and who's in charge of it. If you're outside counsel, you'll want to involve your in-house lawyers, who can tell you, Suzy in HR can really help you with that. She knows where records are kept, where you find personnel files, when we get rid of things.”

The CLE panel recommends a team approach: involve individuals who know what information the company maintains; involve the in-house lawyers who know the organization; involve the outside lawyers who are in negotiations with opposing counsel regarding the scope of the discovery; and involve the IT personnel who know the systems.

The lawyer's role
in preservation

Tips from a panel of experts in the ABA CLE “An Introduction to E-Discovery”:

  • Become fully familiar with the client's document-retention policies as well as the client's data-retention architecture.
  • Thoroughly understand the responding party's computer system, both with respect to active and stored data.
  • Speak with information-technology personnel, who can explain systemwide backup procedures and the actual implementation of the firm's recycling policy.
  • Communicate with key players in the litigation to understand how they stored information.

When. The duty to preserve arises, Christoff says, when a party reasonably anticipates litigation, which is no later than the receipt of the complaint, but is often much earlier. “It's a sliding scale,” Christoff says. “Different jurisdictions will judge it differently. It's important to make sure that wherever a case may be that you identify what the current trend in your jurisdiction is.”

A formal discovery request is not required to begin preservation, Christoff says. But there are certain litigation hold triggers that may signal the duty to preserve, such as receipt of a preservation demand letter or receipt of a draft complaint, among others. The hold notice, Knight says, is a communication that often takes the form of a memo instructing that custodians should take reasonable steps to preserve information that may be relevant. “It also instructs people in control of the information, if there's an automatic purge or deletion policy, that any normal document-retention habits and policies must be suspended until the litigation-hold notice is lifted,” she says.

Where. The data to be preserved may be located anyplace where ESI is available: personal computers, work computers, servers, USB drives, social media and cloud storage, Christoff says. But also included are instant messages, spreadsheets, databases, graphics, audio and video recordings, text messages and voice mails. “Email is the largest source of ESI frequently at issue in litigation,” Christoff says.

Trying to preserve some of these types of information can cause headaches. For one, backup tapes and media “may not be labeled, or the labels have fallen off,” Christoff says. Preserving information from social-media sites like Facebook also has its challenges because access to accounts requires usernames and passwords. There are privacy issues, “and these are things the courts haven't touched on yet.”

Collecting information from the cloud also can be tricky. In the process, you want to be sure that none of the metadata—the date the file was created, for example—is modified. “That's one thing to consider with discussions with the cloud vendor,” Christoff says. “There might not be adequate protections in place.”

Data comingling with other companies that are located in other sites or countries is another concern. “You can't say that if it's hosted on this server, I want you to give me that server, or I want the hard drives that are located in that server,” Christoff says. “Generally the way that cloud providers will store their information is across large arrays of hard drives. So your data may be located on 10 hard drives, which contain data for 100 other companies. It poses unique challenges, and those are things to discuss with the cloud vendor.”

What. The standard of what to preserve is “all documents that are potentially relevant to the claims and defenses in the action,” Christoff says. “You might not need to review and produce all the information that you preserve, but you should preserve broadly. A better-safe-than-sorry option is what we recommend.”

Still, “it's not necessary to preserve 400 copies of an identical document,” Christoff adds. “There are technologies out there to identify duplicates. Obviously, many people will think, I can't preserve everything. The courts know this as well. It's a proportionality test. Preservation needs to be looked at with respect to proportionality.”

Mobile devices, for example, may not be relevant at all, or you may only need to preserve unique relevant evidence, Christoff says. “If someone's BlackBerry syncs 100 percent of the email to the BlackBerry server, there's no reason to think there would be any unique email on that BlackBerry,” he says.

Structured databases that contain information such as HR records or punch-in/punch-out times also may not be important in every case, Christoff says. But “if you're dealing with a wage-and-hour case, how long someone worked would be important,” he says. “However, databases are frequently linked, so they have substantial amounts of data that are not relevant to your case. It's important to discuss with opposing counsel which data and which fields you're going to be preserving so that there can't be any complaints later that you didn't take adequate steps to preserve that information.”

For more on preservation through notification, self-identification and processing ESI, access the CLE here.

This CLE was co-sponsored by the Section of Intellectual Property Law, ABA-IPL Young Lawyers Action Group, Section of Litigation, Section of Science & Technology Law and Young Lawyers Division.

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