ESI Discovery for the Technically Challenged The Technology Practice Committee of the Palm Beach County Bar Association Presented by: Andrew S. Kwan Beasley Kramer & Galardi, P.A. West Palm Beach, Florida (561) 835-0900 kwan@beasleylaw.net eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 1
Overview • What is ESI? • How should ESI be preserved? • How should ESI be harvested? • How should ESI be produced? • Who should pay? eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 2
What is Electronically Stored Information? “The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. [Federal Rule of Civil Procedure] 34(a)(1) is expansive and includes any type of information that is stored electronically … The rule covers … information ‘stored in any medium ,’ to encompass future developments in computer technology. ” --Committee Notes on 2006 Amendments to Federal Rules of Civil Procedure eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 3
What is Electronically Stored Information? eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 4
What is Electronically Stored Information? Practice Exercise – What ESI does your firm or organization possess? • Individual computer hard drives of every staff member • Portable devices - Laptops, iPads, iPhones, USB drives, digital cameras, voice recorders • Networked file server containing most files • Cloud-based e-mail server • Weekly backup tapes (reasonably accessible?) • Web accounts (e-mail, Internet file storage, Facebook, etc.) …And what if you have multiple offices? In different countries? [overseas privacy laws may greatly complicate ESI discovery] eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 5
How should ESI be preserved? A party has the “affirmative responsibility to preserve any items or documents that are the subject of a duly served discovery request. ” Strasser v. Yalamanchi (“ Strasser II ”), 783 So. 2d 1087, 1093 (Fla. 4th DCA 2001). In Strasser II , the defendant threw away a hard drive containing relevant information months after the plaintiff had requested it. The defendant claimed that the hard drive had been “damaged by lightning” and thrown out by an employee. Id. at 1090. The plaintiff eventually recovered nearly $600,000 in damages for both the original breach of contract claim, and for the defendant’s negligent destruction of evidence. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 6
How should ESI be preserved? FD Destiny, LLC v. AVP Destiny , 502009 CA029903 MB AG Dispute arising out of invoices sent to the plaintiffs regarding a real estate project. Plaintiffs claimed that the invoices were falsified, defendants claimed that the invoices were generated to fund reserve accounts for the real estate project. But it was undisputed that nearly all invoices were missing as of eight months after the lawsuit started. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 7
How should ESI be preserved? FD Destiny, LLC v. AVP Destiny , 502009 CA029903 MB AG Plaintiffs filed the complaint on September 2, 2009 Preservation order on September 9, 2009 – defendants ordered to preserve “all books and records including electronic files … ” During discovery, defendants were ordered to produce all documents about the real estate project, including e-mail correspondence. But the invoices were missing … eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 8
How should ESI be preserved? FD Destiny, LLC v. AVP Destiny , 502009 CA029903 MB AG Court appointed neutral computer expert, who found that defendants had done nothing to preserve ESI – no notice to employees, no preservation of evidence on reassigned computers, no preservation of potentially relevant electronic files. Many files had been deleted with no backup copies made, and several employee hard drives were missing. Expert also found 602,000 files that were potentially relevant, but which were not produced. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 9
How should ESI be preserved? FD Destiny, LLC v. AVP Destiny , 502009 CA029903 MB AG Plaintiffs moved to compel and for sanctions. Adverse inference may be appropriate if a party possesses evidence, has a duty to preserve it, and the evidence is then negligently lost or destroyed. See Golden Yachts v. Hall , 920 So. 2d 777, 781 (Fla. 4th DCA 2006). eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 10
How should ESI be preserved? FD Destiny, LLC v. AVP Destiny , 502009 CA029903 MB AG The Court (Judge Crow): (1) awarded money paid to neutral computer expert; (2) raised the possibility of adverse inference/presumption instruction at trial; (3) awarded attorney’s fees and costs; and (4) found that privilege had been waived as to certain documents. Key Point – Take special care to preserve ESI. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 11
How should ESI be preserved? Best practices: 1. Send preservation letter to opposing party at the outset of litigation (not necessarily the filing of the complaint; depends on jurisdiction and facts) that specifically identify relevant ESI to be preserved. 2. Discuss litigation hold procedures for ESI with your client. Is there an automatic deletion policy for files and e-mail? Can you back up potentially discoverable information for safekeeping? How will employees be notified to preserve information? eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 12
How should ESI be harvested? eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 13
How should ESI be harvested? Goal: Develop a comprehensive “map” of a client’s ESI . With clients that have multiple offices and/or networks, it is helpful to diagram where files and e-mail are being sent and received. Canadian U.S. Corp Corp (sister) (parent) Client: U.S. Corp French Corp (subsidiary) (sister) [Depending on facts, this ESI is likely not Miami Office Other Offices in the possession, custody, or control of U.S. Corp. Also, beware of EU/Int’l privacy laws] eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 14
How should ESI be harvested? Scoping Conference Work with client, client IT, and/or third party vendor. List all current and former custodians, and the ESI each possesses. Inventory relevant storage locations and devices. Device # Device Type Custodian Physical Information Location Stored Watch out for ESI accessible only be one custodian, such as an employee’s individual hard drive, laptop, or personal folder on a shared drive. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 15
How should ESI be harvested? Scoping Conference Watch out for ESI which is no longer being actively used by your client, but which still exists: What happens to employee files after they leave the company? What happens to old or decommissioned computer workstations? eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 16
How should ESI be harvested? Factual Background: A Fortune 500 medical device company allegedly interfered with a contract between doctors, who had agreed to share royalties from a medical device that the doctors developed for the company. The medical device company claimed that it had produced all “agreements or contracts” between it and any of the doctors, “including drafts thereof,” for the relevant time period. The company’s ESI search plan did not discuss searching the hard drives of former employees. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 17
How should ESI be harvested? A former employee testified during deposition that there were emails between him and a doctor referencing their agreement. The company had failed to look at a PST (Microsoft Outlook file) in the “H drive” of the former employee, which contained an e-mail from one of the doctors referring to their agreement. The e-mail was specifically cited by the court in denying summary judgment on the tortious interference claim. Key Point: Coming up with a comprehensive harvesting plan can avoid surprises later on. eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 18
How should ESI be produced? (Partial) eDiscovery for the Technically Challenged – Andrew S. Kwan, Beasley Kramer & Galardi, P.A. 19
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