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vicarzDISCLAIMER --- First, I am NOT qualified to train in these matters which I heard for only for a couple of hours this afternoon.
None of my transcription or analysis is in any way suitable guidance to you or any other Agency staff. I only submit the following as issues to prompt discussion, awareness of the general possible theory postulated, and encourage individual research if any of the notes below happen to apply to any case you encounter.
Second, as much as I would like to share the very valuable training I received in this area - there were no written materials made available. In fact, the presenter asked that we specifically not record the proceedings because he is considered a leading authority in the subject area, and people had taped and transcribed his previous lectures - and he found himself being subject to subpoenas as an expert in the arena of electronic discovery.
It may be worth noting that at the beginning of the lecture, the speaker noted that after one such lecture a happy white-haired gentleman approached him and thanked him profusely for explaining the direction of this area of law. He announced that based on the proven trend, he was going to retire - and made good on that promise. I may follow suit.
Some disorganized notes from today’s lecture (supplemented with my own quick reading of some cases that the presenter referred to as the leading authorities):
I. Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010).
“A failure to preserve evidence resulting in the loss or destruction of relevant information is surely negligent, and, depending on the circumstances, may be grossly negligent or willful.” “A plaintiff's duty is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.”
II. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003).
An organizational policy that is inconsistent with the requirements of a litigation hold that results in document destruction/non-retention creates a liability for the organization.The duty to preserve records begins at the time an employee files an EEO charge. However, the duty to retain records may precede a formal filing to go back until the time litigation was anticipated as possible. Id, at 216-17.
III. Phillip M. Adams & Assocs., L.L.C. v. Dell, Inc., 621 F. Supp. 2d 1173, 1193 (D. Utah 2009).
“A court - and more importantly, a litigant - is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties. While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties.” In short, a company must anticipate litigation happening in general, and create retention systems that enable it to then produce discovery in response to requests for cases not yet reasonably anticipated!
IV. (cite missing) The Agency has an obligation to monitor compliance with the litigation hold. The OGC procedure recommended to currently carried out by HAB addresses this issue, but it is worth noting that under current law (citation either “Pension Plan” or missing from my notes) that a failure to monitor the retention of documents under a litigation hold is also found to be neglect.
V. Discovery disputes may required EXPERT TESTIMONY on the operation of the IT systems! Keep this in mind as we interact with the IT folks doing our discovery requests, and note whether they are contractors or fed employees.
VI. Providing electronic records in discovery may require the inclusion of “meta data,” or such things as:
a. When a file was first created
b. The log of changes made to a document and by whom
c. When it was copied
d. Who it was sent to
e. Track changes and notes made to the document throughout its history
VII. One way to deal with the “meta data” issue is to meet and confer with opposing counsel. You can make WRITTEN agreements to: not engage in e-discovery, specifically limit e-discovery, agree to remove or not include meta-data, supply documents in pdf format only (another way of avoiding metadata).
VIII. Discovery requests you make, and responses issued, may include such things as: keywords used (think about synonyms, i.e. car, auto, vehicle, chevy, camaro, v1, v2...), how the search was performed, how anything was screened (we may invoke privilege, but how, when, and why?), and all these issues may be revisited in later depositions.
a. It can be greatly helpful to the Agency if we were to depose someone and ask if they searched their email for relevant documents and have them say no if their counsel claims they had done so in writing. Similarly, this would be very damaging if an Agency official gave similar responses. This might also apply to instructions given to various witnesses and IT professionals.
IX. Under FRCP 26 (b)(2)(B) “not reasonably accessible,” if requests fail the Rowe 8 factor test / Zubulake 7 factor test, a negative response from the Agency might refer to the burdensome nature of the request - but offer that if the litigant desired the information that the Agency would provide it should the litigant agree to fund the search (like a FOIA request today).
a. Such a note should not be vague, but specify what efforts would be required, what systems would be involved, and the actual measurable expense of producing such (think man hours vs. grade of employees).
X. Inadvertent disclosure - if you create discovery agreements, you should include language about inadvertent disclosure. This way, should an email you wrote under privilege be accidentally submitted, you could either get it back or object (successfully) to its introduction in hearing based on the agreement.
a. It is worth noting that an Agency used an insufficient word-search scheme to screen privileged communication from internal counsel (case cite missed) which resulted in inappropriate disclosure of electronic documents to the other party. The party returned the documents. Later, on another later discovery request, the SAME and similar documents were given to the party based on the exact same flaw that was the cause of the prior disclosure. The court ruling I’m unsure of - but the party argued that the information was now considered legitimately acquired because the Agency was on full notice of the disclosure and their failure to correct their policy and practice constituted a waiver of privilege.
Ok I hope you enjoyed reading that as much as I enjoyed writing it. Thank the stars of your choice that we deal predominately with pro se litigants...
I am not an expert in this area of law, but thought it worth conveying for your analysis and consideration. Thank you,
