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Examining the Ebb and Flow of E-Discovery: Tips, Tricks, and Ethics

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Examining the Ebb and Flow of E-Discovery: Tips, Tricks, and Ethics

This presentation will provide an overview of what electronic discovery (“e-discovery”) is, how to make the right discovery requests, and how to object to discovery requests. The presentation will then discuss case law relevant to common issues in e-discovery, particularly those that relate to the ethical obligations of clients, outside counsel, and in-house counsel.

Transcript

Hey, good morning or good afternoon wherever you're located. My name is Kirby Drake, and I'm here today to talk about examining the ebb and flow of eDiscovery tips, tricks, and ethics. The discovery phase of litigation is crucial and increasingly dispositive as fewer and fewer cases go to trial. At the same time, we see that discovery itself, which is seeking relevant information from an adversary, is overwhelmingly focused on electronic information like computer files, emails, as well as social media. Many of the problems of e-discovery derive from issues of language. The peculiarities of language make simple keyword search sometimes ineffective. There's also an inability of the cultures of law and it to communicate well. That can also hinder the process. Law and I.T sometimes think they understand each other when they actually do not. So first, I think it's best to start with a good definition of electronic or e-discovery. It's the electronic aspect of identifying, collecting and producing electronically stored information, or ESI, in response to a request for production in a lawsuit or in an investigation. Now, ESI can exist in a lot of different media, mostly ones that can be read using computers. These can include cache memory, magnetic disks which could be computer hard drives or floppy disks. Optical discs, which can be DVDs or CDs, as well as magnetic tapes, can also include emails, text messages, documents, presentations, databases, voicemail, audio and video files, social media postings, as well as websites. We can find these items of e-discovery in a variety of devices, including desktop and laptop computers, network servers, tablets, as well as phones. Much is made in the e-discovery literature of the informal, revealing and often embarrassing nature of e-discovery, particularly emails and text messages. But in emails, particularly in the corporate context, this has been considered the window into the corporate soul and can be a highly sensitive area for discovery. One of those cases that came up back in back in 2006 was against Microsoft. They were actually one of the first companies that people considered to have been burned by email in its antitrust cases, and this was related to a horde of once private Microsoft emails that were introduced into evidence at a trial in Iowa in December of 2006. These emails were introduced at the trial and then posted on the internet, as the other evidence in the case had been posted, and one of the emails was to Bill Gates and Steve Ballmer. Subject line of the email was losing our way, and the email began like this. This is a rant. I'm sorry. I'm not sure how the company lost sight of what matters to our customers, both business and home, the most, but in my view, we lost our way. But that sounds pretty bad. But the second paragraph of the email gets even worse. And he said I would buy a mac today if I was not working at Microsoft. And this was the line that was widely quoted today, that person is not working for Microsoft. And he retired on the day that Vista was released in January 30th of 2007, and he moved on from there. So usually that that tends to be what happens in these cases, but not before the company may be very embarrassed or at least set back on its feet when it comes to things that can come up in e-discovery. So there's a lot of different things that can influence the process of collection of of things that can become e-discovery in a case. And many things can influence how easy or difficult the e-discovery can be in a lawsuit or investigation certainly can depend on the size and nature of the business, the industry that they're in. But then we also have to look at the data infrastructure. Is the data centralized or widely dispersed? What are the data retention policies for the business and how are they enforced, if at all? Are there dedicated internal resources that can handle e-discovery tasks? We also look at time constraints, which can include production deadlines, retention schedules and resources that are available. Many people in firms, as well as lawyers, have taken the approach that e-discovery is an integral part of the process and the practice of law, and all litigators should be experts in e-discovery. However, if in my estimation, there's actually few actual experts, the IT systems that contain electronically stored information can be extremely complex and technical, and many legal personnel continue to have a poor understanding of the technicalities required to find the needles in today's vast system of computer haystacks, and so this can lead to a lot of embarrassing errors, some of them many times over. So in order to orient ourselves to the e-discovery process, I think it's helpful to look at a typical e-discovery model moving from volume to relevance. So left to right on this diagram. So we first start in information governance. And this is getting your electronic house in order to mitigate mitigate risk and expenses should e-discovery become an issue. This can be from the initial creation of the Issi through its final disposition. Then we move into identification, which is locating the potential sources of ISI and determining its scope, breadth as well its depth. These sources can include business units, people, IT systems, as well as paper files. And this is also the important time to understand those locations so that you can issue an effective legal hold, because you want that identification to be as thorough and comprehensive as possible, to make sure that the proper people are being covered and the proper locations are being identified. And this this part of the process may also include conducting interviews with key players to identify the records that they might have that could be relevant, could also conduct interviews with it and records management personnel to identify how relevant data is stored, the retention policies, what data may not be accessible, and what tools may be available to assist in the identification process. Then we move on to preservation and that's to mitigate the risk of loss. And so once the duty to preserve has been triggered, we need to isolate and protect the potentially relevant data in ways that are legally defensible, reasonable, proportionate, efficient, auditable, broad but tailored, and that ultimately mitigate the risks. Then we move into we also move into the collection process. And so this can be done as part of the preservation process or may be a subsequent step of related to preservation. So this is acquiring the potentially relevant ISI that's been identified in the identification phase of the e-discovery process. Then we move into processing the the data. So it may be reducing the volume of the ISI and converting it to forms that may be more suitable for review and analysis. This could could involve metadata preservation, itemization, normalizing the format and as well as the data reduction as I said. So we want to want to understand what the universe of data is, record the metadata and select the appropriate items to move forward to review. Then we then we look at review, which is generally looking at the ISI for relevance as well as privilege. This can be the time when you're developing your facts or hopefully leveraging technology and facilitating collaboration and communication amongst the team. We also, as it relates to review, you can do analysis which would be evaluating the ISI for content and context, including key patterns, topics, people and discussion. Then we move to production. So we'd be delivering that to others in appropriate forms and using the appropriate delivery mechanisms. And then when we do get to whether it's a deposition, a hearing or a trial displaying the ISI before audiences. This could be in a native form as well as a near native form. It could be used for persuasive purposes or to validate existing facts or positions. So before we dive into some specifics, including some some cases that I think are helpful to understanding these, these particular topics, I think it's helpful to reference several of the ABA model rules that can be relevant to e-discovery. So first we have model rule 1.1, which requires competent representation to include having knowledge, skill and preparation to handle e-discovery. We'll talk about that a little bit more in a minute. Model rule 3.3 says that you need to be prepared to be truthful with the court about e-discovery, whether or not it's favorable to your client. And then finally, model rule 3.4. You cannot obstruct the other side's access to e-discovery having potential evidentiary value. You also cannot falsify evidence or make frivolous discovery requests. So looking a little bit closer at model rule 1.1, the rule specifically says a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation. And there is a comment that falls under model rule 1.1, comment eight, paragraph eight, which says to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject to. And so, for the part that I've put in bold and an italicized, this is this is something that many states have have carried forward into their continuing education requirements and may in fact be the reason why some of you are here, here today is that there are at least 38 states now that have adopted the duty of technology competence requirement, and there are some states, including North Carolina and Florida, that have a specific requirement related to this competence. So the days of just saying that, you know, maybe the paralegal or the IT professionals or your practice support person needs to understand the technology and understand how it operates and connects and e-discovery, if that's an area that you that you work in, those days are long past. So now we'll look at specifics about how you're how you're handling e-discovery within within a lawsuit or an investigation. And of course, it's important to make the right discovery request. This can affect the outcome of litigation, particularly as it relates to acquiring the right metadata if you if you need it. And and for those that may not be familiar with the term metadata. This can include a lot of different things that are associated with an email. For example, the date of creation, the the persons that were, you know, were included on the email, who sent the email. If there were people that were blind copied on the email, it can identify all of those those items of information that can sometimes be really helpful to you in a case or when it comes to a a Microsoft word document or a Excel spreadsheet. It can give you information about, you know, again, the date of creation, but also times that it's been revised and by whom it's been revised. So this can can be very, very helpful in some cases. So it's important to, you know, to understand whether that is data that you're going to need in your case and making sure that you're making the right request to ask for that data when when needed. It's also important to clearly specify the format of document production earlier with the opposing counsel. This can be something that sometimes is is required or required point of discussion in a discovery conference. Sometimes it may be specifically called out by by a court requiring that that discussion to take place. But even if it's not specifically required, it is something that's helpful to discuss with opposing counsel very, very early on in the case, hopefully before you're even isolating documents for production or maybe even at the time when you're when you're, you know, if you're the one that has been sued and the lawsuit, you know, at the time when you're issuing the litigation hold, it's good to know how you're going to need to produce the documents, or even how you're going to need to collect the documents that are that would qualify as electronically stored information. Um, but it's not just enough to just say, you know, I want electronically stored information or ESI, even if it's mentioned and defined in a document request, if it doesn't specifically include a request for metadata or, you know, requiring a document to be produced electronically in native format with native metadata, there may may be times where an opposing party may not be under any obligation to provide documents in that format, so the failure to make the right request can dramatically affect the outcome of the litigation, particularly if the metadata is involved. This is this is something that we've you know, we've seen in a lot of, you know, in a lot of different cases. And, and courts have generally, particularly the federal courts have looked at rule 34 and said, you know, if you do not request the metadata, you're not specifically entitled to it. If the responding party has already produced the documents in another reasonably usable format. So this is this is an instance where it's important to think about what you're going to need early on in the case, and make sure that your request for production reflect the information that you're actually you actually think that you need. Some other issues to consider for your request is considering where the ESI may be stored. Sometimes you may know where it's going to be stored. If it's a case that that you know that the opposing party, their their phones are involved or their social media is involved, you may, may be able to specifically identify those, those items. But but it's also important to think about if there are other devices or storage methods that an individual or a business, depending on what is involved, you know, might use that contain discoverable information. So so this, you know, course can include your your hard drives and your cloud accounts, your tablets, but it's also your social media accounts. And even today, you know, we may be looking at more of your wearable technology. So even like your Apple Watches may be may be involved. So it's important to understand and delineate exactly what you're asking for so that the responding party can search for that information. And if and if it's something that you think may be a stretch, or you may be asked to justify why you're making the request, you should be prepared to justify that request early on. Then you should craft the discovery request by thinking about the production and the formatting of the ESI. Once you've decided where to look, then you have to figure out exactly what information might be helpful to your client's case. This can be difficult again, because you may not always be entirely sure what discoverable data or ESI even exists. So sometimes the interrogatories can be useful to determine who's in possession of the information and getting, you know, identifications of general knowledge of specific data or how specific data is stored can then be helpful for making those document requests. There can often be times where where depending on how you've made your request, there could be certain media devices or media storage that could be overlooked. Again, you know, there could be wearable technology such as Apple Watches or Fitbits that could track information about, you know, activity levels, location, GPS, you know, things like that. If you're talking about cell phones, you know, again, cloud storage may be may be helpful because it may not always be data that's contained on the cell phone anymore. And then, you know, go. We also look at the format that you're asking for the data to be produced in generally these days. You know, it goes beyond just asking for a CD or DVD with electronic documents in PDF format. You may need them in a way that may be more searchable or usable or accessible to you, especially if the volume of data is going to be large. So these are just some of the examples of how proper instructions and discovery requests can help point the responding party in the right direction, and ensure that you get the data that's most critical in the format that is most usable to you. Then we also have to define the terms in a request for production, or even in a subpoena. If it's going to a third party, this can be very important. So, you know, I think particularly when we're looking at e-discovery terms, you know, it's good not to not to try to create your own definitions. In fact, you can actually go to e-discovery definitions that may be found in the Sedona Principles glossary. There's also the International Organization for standardization has adopted a definition of ESI and which I think is a good one. So definitely something to look at. You know, if you're if you're needing metadata, you know, that would be another term that is is helpful to define. But then not not just the terms that you're putting in there, but you also need to put any temporal and subject matter parameters that could narrow, narrow the search. So if a particular date range is important, then you may may, you know, be wise to put that in there so that the the production doesn't look like it's going to be as burdensome on the responding party and may not lead to, you know, some cost shifting. If if that ends up being the case, you may, may have situations where if the data is sensitive to authorization, alteration, excuse me, then you may may provide instructions about how to extract, preserve and produce that data. And so so these are just some of the some of the things that can come up. But of course in most, most cases now if you know if social media is involved, be sure to ask for it because it's it's being used by. I, you know, essentially three quarters of all internet users and can be a source of gathering information on the opposing party as well as, you know, some, some claims that may be at issue. And so and we'll talk about that a little bit later on in the case, later on in this presentation about ways to best consider collecting or requesting that information. Some other rules of thumb to keep in mind when you're making requests. Of course, what they must keep and what they must give you are different obligations. So you want to keep that in mind and also manage your client's expectations based on based on that principle, and generally recommend keeping your first request that you send out broad to try to protect your client's interests as much as possible. Then you can. Then you can narrow those requests for production, either within the same set of requests or in subsequent requests. You can make those more narrow and more carefully and carefully crafted to help avoid your opponent buying delays through objections. And and I think this is, you know, is something that's very important. And, you know, clearly you want to lose the boilerplate requests. And I'm going to get to that in just a minute. But this is something that has really been a point of emphasis for many courts. So. General objections. Many of us used general objections for. A standard part of our process for many, many years. But since the at least in the federal courts, after December 1st of 2015, it was advised that you should rarely use them unless each objection applies to each discovery request. So if you're saying, well, I'm objecting to produce privileged material, then that may be a general objection. That is appropriate because of course, you're not going to agree in most any case to produce privileged information with respect to one one discovery request, if it's if it's not something that you would produce. As to all discovery about subject matter in general is no longer permitted. And then and then in objecting, you know, saying just generally that the requests are overly broad and unduly burdensome is meaningless over boilerplate in the opinion of many courts. So this gives you I've given some examples here of kind of boilerplate objections that you know, that you I'm not saying that that you, you can't use them, but you do need to be more specific and be prepared to justify them. I would not put them as as objections that are being included for every single request in in a in a case and and if you you know, if you do that you may end up having to eventually explain that to, to a to a court which has has happened in, in several instances. And I think I've got some cases where, where we've, we've seen that seen that occur in over the years. So let's look at a couple of case law examples I think, that are helpful for understanding the types of requests that can be involved related to e-discovery and some of the issues that courts are asked to address when it comes to e-discovery, production or objections to it. First case is the Covad communications case. This was a case from the District Court of D.C. back in 2008. And this shows that that even, you know, a lot of the RFP language that was involved before we were in the digital age were being used even in 2008 by a lot of attorneys in the US. And so I've given you the language here of what the request for production said. It said, you know, included language that was clearly related to paper documents about keeping the staples and the clips attached, and with file folders, dividers and labels. And so the RFP and and this whole set of requests did not mention that there was any desired form of production for and it did not mention metadata as you would expect. So so when the defendant produced all their documents in paper, the plaintiff's counsel objected and moved to compel the production of the email, but this time in native format. And the defendant said, I'm not going to produce for the second time 35,000 pages of emails. They did offer to produce them electronically, but in a Tiff format, but only if the plaintiff would pay the fees that they would incur to electronically redact the privileged and relevant emails from the Tiff production. The plaintiff refused and said tried to claim that native production of the emails was required under the rules. So the court first, as you would expect, looked at the RFP in question and said, you know, the language that I that I've referred to here on the on the, on the slide, you know, and and then they but not only did they, you know, include this somewhat archaic request for production, they also defined documents in an archaic manner. So it referred to, you know, things like a, you know. Stuff that that came up before the advent of personal computers. But, you know, they did they did try to spice up the language by saying, you know, instant messages should be an example of a tangible thing. But they, you know, again, did not mention electronically stored information or anything related to that. In fact, it even referred to computer tape and computer cards. So those were pretty old, old style formats. So the plaintiff said, you know, that they argued that you know the rules. You know, the rules required them to, you know, to require the other side to produce these, these native format, you know, format files. And the judge then, you know, looked at it and clearly said, you know, that this was was something that, you know, seemed to be pretty, pretty clear that the whole controversy could have been eliminated if the plaintiff had asked for data in native format or if the defendant had asked what format data was requested in before it presumed that it was not native. So in the end, they they did require some shared costs of having a paralegal remove the privileged, privileged emails and, you know, to be able to produce them in an electronic format. But but of course, it did come with a cost for the for the plaintiff in that case. So another case is fisher versus forest. And this was one where we kind of consider this to be a wake up call type of opinion. And it's and that it it showed that many lawyers were still having trouble with rule 34 and and so and particularly when it related to stating grounds for objection. And as you'll note, this was a case in 2017. So it was after after the federal rules had been updated and where those general objections were, were found to no longer be something that you should be including. And so the court found that there were violations by incorporating all the general objections into each response, because there were, you know, were ones that, you know, were, you know, non relevance to the subject matter of litigation, which the court noted that that was no longer permitted and then even pointed out that, you know, the discovery not likely to lead to the discovery of relevant admissible evidence, that language was no longer part of rule 26 specifically. So those were were some things that were specifically called out. And so the the judge knew how to get the lawyers attention in this case. And, and as many said, it involved threats. And it said that, you know, it's time for for lawyers to update their form files. So if it does not, you know, if the responses do not require comply with the requirements to state objections with specificity, it would be deemed a waiver of all objections except as to privilege. So so this was was something that, you know, that that the court thought was a, a very specific way to, you know, to, to look at that. And so they were, you know, they were required to go back and correct those discovery responses, but were given that threat of waiver if it ever happened again. Another case was Liguria Foods, which was an Iowa case from 2017 that gives examples of how much judges do not like obstruction in discovery or meaningless objections. And so in this, in this case, the the, the court was very clear that and I've, I've quoted some of the language in their obstructionist discovery responses in civil cases are a menacing scourge that must be met in the future with substantial sanctions. So the and the court even put in its closing sentence of its opinion in all caps. No more warnings in the future using boilerplate objections to discovery. In any case, before me places counsel and their clients at risk for a substantial sanctions. So this was a, you know, was clearly something that was was a bother to, you know, to this court. But this one is not the only one. But I think the bottom line from this case and some of the others that we could look at is just stop using your form objections, especially if they don't conform to the rules. Know post 2015 and then we need to be changing the boilerplate discovery objection culture. So that's that's the the takeaway from from this particularly this case. But I encourage you to look at that language. If you're, you know, if you're if you're trying to point out some things about, you know, use of meaningless boilerplate, this judge gives you really good, clear language to use. So now we'll look at federal civil procedure 37 E. And this is dealing with remedial measures, you know, related to sanctions. So so we see that in in rule 37 E the remedial measures are not available, nor are sanctions unless the should have been preserved in the anticipation or conduct of litigation. And the S's lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. So if you had no, you know, if if there's no duty to preserve or if the relevant ESI is still available or it was lost despite having taken reasonable steps to preserve it, there's not going to be any remedy available under rule 37 E. So look at a couple of other other case law examples that that come up, particularly when it relates to sanctions in in these types of cases. And as I've said before, you know, I think many litigants and, and their lawyers sometimes do not grasp the importance of information management and how it can affect the litigation. And so first, first case is, you know, is dealing with sanctions and the reasonability of efforts to preserve Issi. So we have the pension committee case. And this was was a case where where the judge in in this case identified failures that generally support a finding of gross negligence when there's a duty to preserve, including, you know, and they identified a number of gross negligence failures in this particular case, but it included no written litigation hold the party did not identify key players or preserve files. They did not stop deleting emails or and did not preserve records of former employees despite having an obligation to. And they did not preserve backup tapes, which in this case were the sole source of relevant information. And so, you know, so I think this is, you know, something that's very important to to keep in mind and, and and in this, this particular court in the Southern District of New York, which is in the Second Circuit, they they looked at it and said gross negligence alone, without proof of intent or bad faith can be sufficient to enter sanctions. But soon after, pension Committee Judge Rosenthal, out of the Southern District of Texas, gave his opinion in Rymkus versus Cammarata. And this was in the Fifth Circuit, requiring intentional destruction of evidence or bad faith to be to be proven before an adverse inference instruction sanction could be imposed. And so the standards are somewhat different in the Second and Fifth Circuits. And so this is something to keep in mind that there is is a bit of a split when it comes to, you know, how the how the sanctions will, will ultimately be evaluated in when there are e-discovery violations. So it's important to, you know, to consider which circuit you're in and and proceed accordingly. So in other case that I think is helpful to, to look at is that the sanctions for e-discovery misconduct are not always just against the party. In this particular case of Arrowhead Capital Finance versus Seven Arts Entertainment, both the defendant and its attorney were hit with sanctions, which included issue preclusion, spoliation instructions, a contempt finding and monetary damages. So you might ask, well, why did the attorney get sanctioned? He did a lot of things that, you know, that were problematic in this case. He did not. He he forwarded on the the essay that was collected without reviewing any of the documents. He did not even supervise the document search, review or production designated all the documents as confidential, even though some were published press releases. And then he had not even admitted he'd not even been reviewing the discovery responses, even though he had personally signed several of them. So, you know, clearly, I think, you know, it should go without saying, but but to make it clear, do not just sign a response based on forwarding documents that your client finds and decides irrelevant. You or your team need to be closely supervising the response. And when your signature is being used, it's vouching for the reasonability of the efforts. So you need to have some knowledge of what's being done. Otherwise you could be subject to some sanctions. If there are violations. Another case is the Louis Vuitton case. This was this is one that I think indicates how sometimes we we try to cut corners when it comes to e-discovery and, and all thinking that the costs are going to be high for, you know, for being able to use a vendor to, you know, to to produce them. And suddenly, you know, sometimes we're relying on it employees that may not be qualified to, you know, search and produce the e-discovery that is, is being requested. And in this particular case, the IT employee for Louis Vuitton actually swore to the difficulties they had in searching the emails that were maintained in the Oracle database. And they said, you know, they're they're stored in a raw format, and some had foreign language encoding, and this would make it difficult. Louis Vuitton then went on to argue that they would have to hire experts in Oracle and Lotus Notes to properly search and extract the emails. And they said, you know, $15,000, which that was what it was going to be at the time to get those expert services. They were too expensive. So they tried to do it themselves. But in the end, the work that they did was deficient. And it was also late. And and as a result, Louis Vuitton got an adverse inference instruction entered against them and also had to pay the defendants reasonable fees for bringing the motion, which even though those those were not publicly disclosed, many have said, you know, those fees probably made the $15,000, quote for expert services seem somewhat cheap. Um, I think it's also helpful. Although this does not happen very often, there are times where not just outside counsel have been sanctioned. There are times where in-house counsel have also been sanctioned. And one such case was Swafford versus Esslinger. This was not a, you know, a remote in-house attorney representing a large corporation, but the attorney was general counsel for a local government entity. The attorney was not attorney of record and was not a named party. Um, but you know, what they did do was they did not, you know, they were responsible for sending the preservation letters. They did not do so. And they also destroyed some old laptops that were clearly relevant to the case that was being brought. So in this situation, adverse inference instruction was given and a monetary sanction was employed. Interestingly, the outside counsel was not sanctioned, but that was because they were not retained until months after the preservation letters were finally sent and a duty to preserve was triggered. So now we're going to turn to, you know, turn to a specific case that I think is really helpful. Even though this case happened some time back, it's it's considered to be one of our more important cases on legal ethics when it comes to e-discovery. And so, you know, I think you'll see in this case, if you're not already familiar with it, that there's a lot of mistakes to be learned from and a lot of errors that were made that probably should not have been made, that led to very drastic situation. So in this case, it is a patent infringement case. Qualcomm sued Broadcom for patent infringement and Broadcom made the defense. And they said that Qualcomm had had waived its claim for patent infringement by participating in what was called the Joint video team, which is in the standards development related to technology. And so the, you know, while you may not may not be familiar with this area, um, the gist is, is that if Qualcomm had participated in the joint video team or the JV team before, the standard related to this technology was published, then they were required to license the patents that were essential to practice the standard. But Qualcomm denied being involved in the JV over the relevant time frame. They said, oh, we didn't have any real involvement until after that standard published. In fact, they even tried to get summary judgment that there was no waiver, the motion was not granted, and the trial started. And at the trial, Qualcomm continued to argue no evidence had been shown that they were involved in the JV before the standard was set. But during the trial at Qualcomm, attorney found an email showing that one of the Qualcomm trial witnesses had communications with the JV before the standard was set. At that time, 21 emails were found in the witnesses computer showing that other Qualcomm employees were also involved in the JV team. These emails were not disclosed during the trial, and the trial team somehow convinced themselves that the emails were not responsive. But when that trial witness testified, they, the trial team for Qualcomm tried to not ask questions to reveal the existence of the emails. But on cross-examination, the witness had to admit that the emails existed. So right after this surprise admission, of course, Broadcom immediately complained to the judge. The court was very concerned about this. And then, you know, the the emails were those emails were were laid out in front of the, you know, in front of the the jury. The jury did eventually find for Broadcom. And in fact, the jury foreman later explained that they all knew that the Qualcomm employees were supposedly lying. And so it was an easy decision. But even after the trial, the Qualcomm trial team said these emails were not responsive. The judge disagreed. And and after the trial, Broadcom got permission to seek discovery on the scope of the discovery abuses. They tried to resist. And then so in the end, it was not just those 21 emails that I mentioned at the outset. It actually became 46,000 emails with attachments comprising over 200,000 pages of relevant evidence. So of course, the Broadcom as a party was upset, but the court was also astonished and upset. So the court initially sanctioned Qualcomm and six of its outside counsel for discovery abuses. They found that they failed to conduct a reasonable investigation. They withheld documents without justification and advanced misleading arguments to the judge and jury. Um, you know, of course they were. You know, the court was very concerned about the number of pages that were not disclosed prior to the trial. Qualcomm was ordered to pay over $8 million, which was the equivalent of the costs incurred by Broadcom. To defend the lawsuit, Qualcomm and its outside counsel were ordered to participate in a, you know, essentially a a program, you know, related to discovery violations. And some of the outside counsel were even referred to the state bar for possible ethical violations. After that time. The sanctions order eventually was reviewed as to the outside counsel. And they found that the court found that the self defense exception to the attorney client privilege applied so that those outside counsel could defend themselves against the case, and eventually some of the sanctions were were vacated against the the outside counsel. So this was, you know, was was something where where they, you know, were able to avoid, um, you know, being. Being held responsible specifically, but the court was still troubled by some of their actions. And and the, the orders that are, um, the orders that were issued throughout this part of the case are very interesting. And if you're curious, I encourage you to go and look at them. I think most of them have been, you know, publicly made, publicly available. If not, they would be available through, you know, through the court docket. So some of the some of the things that the court particularly was troubled over in this particular case was that no counsel seemed to have met in person with the Qualcomm employees that were likely to be the key witnesses. So there was there was also no attorney that was identified as taking the supervisory responsibility for verifying that the necessary discovery had been conducted. And so the judge found that this was a discovery project with no leader and no management. And yet they claimed that they had made reasonable efforts. So this was very problematic. And I think there's a lot of lessons that can be taken away from this case. So let's look at some of those lessons. I like to use this quote from Judge Robert H. Jackson from a Supreme Court decision back in the 1950s. And I think it does typify the attitude and approach sometimes adopted by parties and attorneys in dealing with discovery and and also helps us in understanding some of the lessons that can be learned from the Qualcomm case. And I've as you'll see as we move into some of the next slides, these lessons are sorted into some different categories. I think there's some lessons that all of us can learn, lessons for outside counsel and some lessons for clients. The model rule 3.3, as I mentioned earlier, is, is something that I think is very, very helpful and very necessary to be mindful of when it comes to e-discovery. We need to be prepared to be truthful with the court, whether or not it's favorable to our client. And this relates to the duty of candor, because you and you need to be able to say you've done a reasonably diligent inquiry to be able to make those assertions. So one of the first lessons also ties into model. Rule 3.3 is a lesson that all of us can take away is the truth matters. The best means to avoid telling a lie is to know the whole truth, and make accurate representations about the evidence to the other side, as well as to the judge and the jury, as appropriate. I think ways to make this happen include identifying all relevant documents, asking the right questions, giving consideration to the means utilized to find the documents. If you have to be making representations to the other side, or the judge or the jury, you need to understand the existence of the documents and and understand the fruits of any search for documents. You need to be, you know, prepared to face that truth. And your witnesses also need to be prepared to face that truth. Second lesson is one that that I tend towards, although some may may disagree. It's, you know, erring in favor of production. Um, my, my mentors had always told me, he said, you know, if you need to have a meeting or several meetings or several communications to consider whether to produce, you probably should go ahead and produce it. Often it's less harmful to produce because, you know, just because it's on your radar doesn't mean that it will have the same meaning to the other side. And, you know, and it's also important to remember that things may be discoverable, but not necessarily admissible when it comes to a hearing or as to a trial. So I think most courts will, you know, tend towards requiring production if it's responsive to a claim or defense. So erring and faith of good faith production is a good lesson to learn. Um, another lesson is ensuring compliance. And if you're you're the outside counsel particularly but also in-house counsel, you need to make sure that you're ensuring your client's compliance with discovery. Um, I think there's a series of cannots and then there's a series of musts. First in cannot you cannot blindly rely on your client's collection and production. We've seen that in some of the cases, as well as in some of the cases I talked about earlier, as well as in the Qualcomm case in Qualcomm. They said they had standard procedures, but but it did not appear that the counsel investigated those procedures sufficiently to understand what they were and make sure that they were being complied with. And then you also can't shield yourself from unhelpful or harmful documents. In Qualcomm, the outside counsel chose not to look in the correct locations, such as the files of its trial witnesses, and ignored warning signs that their collection was insufficient. So that's that's something that's very important. Um, in terms of lessons that that you must you must do, I think you must reach agreement with your client as to how you're going to engage in the discovery process. This requires communication. In Qualcomm, you know, the court noted that there were few in-person meetings. There was a lack of knowledge about the Qualcomm computer system and then lack of agreement as to who was responsible for discovery. So it's it's, you know, this is going to be a way to, you know, have those discussions early on with your client, ideally even before you start having discussions with opposing counsel about discovery, so that you can you can both be on the same page and move forward in an appropriate way. But I think also outside counsel need to have sufficient control over the discovery process to be able to confirm compliance. Usually they're the ones that are going to have to go in front of the court if discovery issues arise. So they need to be involved in making the final call as to discovery issues. Another issue that comes up for council is documenting your efforts taken in discovery. And this can be important for in-house as well as outside counsel. You may want to keep records of the search terms that are utilized in making your collection, the manner in which the information is collected, so that if you need to use it, you can show the court that it was an acceptable methodology for conducting discovery. It might also be important to consider seeking agreement from the client that some of those records can be produced if issues do arise about document collection and production. This could be an added layer of protection for both outside counsel as well as for the client. And it's also important to make a plan. You have to define who's responsible for ensuring discovery duties are carried out. It's critical to have IT personnel involved in the collection process. You need to issue a document, hold notice at the outset of litigation, and employees must be informed that they have a duty to manage information in accordance with written policies. Whether or not there is litigation, if you do already have a plan in place, then you have to follow the plan. In Qualcomm, they claim that they had a standard procedure for discovery for document collection, but they did not follow the plan. So you have to follow the plan. It's the plan can only be as effective as the care that is given in executing the plan. So this was this was definitely something that can be important. This may involve, you know, checklists you know, may involve in more complicated cases. There may be, you know, particular databases where where, you know, the information is managed and, and documented. And so, you know, so if you're not but if you don't have the experience and the guidance in developing that plan, you need to rely on sources that are, you know, are going to be, you know, experts when it comes to doing that. Because if you're just using simple checklists alone, that can be counterproductive. So now in the last, you know, last ten minutes or so that we have, I'm going to talk about a little bit of the social media ediscovery that because I think this is an area that more and more of us are having to deal with, but we also still probably feel the least comfortable about when it comes to eDiscovery. So, of course, you know, when we're talking about social media, it can be, you know, things like Facebook, Instagram, Pinterest, LinkedIn, Twitter, but it can also include our messaging applications, including WhatsApp. And then there are also some auto deleting apps, such as Wickr that that can be out there. And and we know that, you know, many, many, many of us adults are using many of these services. In fact, I think over 50, 56% of online adults use two or more of these primary services. So the first five that I've listed listed here. And so, you know, so there's definitely, you know, different sources there. And then when you consider the number of smartphone owners there are that may be using messaging applications as an alternative to text messages or messaging through one of the social media services. As I said, WhatsApp may be a place that you might particularly want to consider, especially if you're dealing with if you might be dealing with international individual, you know, international individuals that may be working internationally, or if you have a client that has multiple offices, some of which may be outside the US, this is a common way for for people to communicate. Another one that I've not mentioned on here, but that has has, you know, certainly gained prominence when it comes to businesses would be would be something like slack communication or even even some of the communication that can take place within Microsoft Teams, for example. Those may be all places that you know, could have information including, you know, status updates or public posts, private messages, live chats, as well as, you know, sharing of videos or photos. And so we we need to be able to, you know, a lot of that data can, you know, can be very voluminous and, and can come in a lot of different formats. So the collection part can sometimes be very difficult. For example, when you know, when you can request your data from from a source like Facebook and you make it, you know, thousands of pages that include all your posts and messages and chat logs, your log on, your posting times, GPS data, you know, some deleted materials as well as other things, but you're often going to get that in a PDF format when the original format would have had its own metadata. So, you know, for example, if a, you know, a photo might have a different metadata fields reflecting when it was taken or maybe how it has been modified, if there's a posting on Facebook, it's going to have, you know, information about the recipients and the author and the poster, any linked media as well as comments. And so there are a lot of different things, including IP address logs, which would have the user activity when they've logged in and logged out, what they've done on the social media platform that can be available and may be relevant in some circumstances. So we have a lot of a lot of different ways that we can get it. You know, first way is, you know, print it out or capture a screen screen image of it. This can be a fast, simple and cheap way to do it, but you're not going to have the metadata. You may have issues related to authenticity or accuracy, especially if the other side doesn't want to agree to allow you to use it, and you may have a hard time getting a copy like this authenticated and admitted into evidence. So one step up is using self service export tools that are provided by the social media platform. So Facebook you could go back to 2010 I think I think that's still accurate. Twitter. At this. This is prior to X, but it dated back to 2012. So there may be may be some changes on that. So don't hold me to that one. But but you can do that. But but it has to be done by the account holder or someone with their credentials and consent. This can make a you know, it can be a good export, but it may not provide all the metadata and timestamps or the linked content. Um, probably the best the best way to do do it is using specialized forensic collection software. There are many different services out there. One is X, one social discovery, but there's there's many others that your eDiscovery vendors will often provide these days. They do. They can be more costly. But but if your your case is involving a large quantity of social media materials, or it's going to be heavily relying on the metadata, or you need to make sure that it's authentic and admissible, then this may be the way to go. So discoverability, it's generally discoverable under the same conditions as other types of evidence. If it's relevant then it's discoverable. And and so that's what we generally rely on. You can use traditional request for production. As we've talked about before. Sometimes if it's sensitive, there may be an in-camera review that might be allowed by the court. Password requests I've seen seen some cases on this doesn't usually get allowed by by courts not commonly permitted. There are sometimes subpoenas to service providers to get the data, but there are going to be privacy protections for those electronic materials from third party access through the Stored Communications Act. So that may not be the best way to get it. So I'll mention in the last couple of minutes we have here got a couple of cases that I think are are interesting. One is the Crispin case, which involves subpoenas to Facebook and Myspace asking for a lot of different information. The plaintiff tried to quash those those subpoenas, but in this case, the Stored Communications Act was not applicable. And initially but then the court did find that it was applicable if it was seeking private messages, but distinguished between the private messages versus what was done on the Facebook wall or in Myspace comments. So this was a public versus private situation. In the Hawkins case, this was was dealing with a a Facebook account that was deleted in the litigation. He but he did not do so to prejudice litigation. Um, so in this case, you know, the case was not dismissed, but there was a question of whether the litigation was foreseeable at the time of litigation. So an adverse inference instruction was given in that particular case in the EEOC case, this was a question about the relevance of of social media discovery. And there were some privacy concerns that were raised. Um, but because it was, you know, was dealing with things that were specifically related to some of the postings that had had had been in there because of that, as as a result of the allegations that were made in the case, um, even though the information that was requested was going to be somewhat embarrassing to the claimants, it was was something that was allowed to be requested in the casserole company case, the defendant, it was a trademark case, and the defendant changed its Facebook profile picture from one that included the dress that involved that was involved in the trademark dispute to one that did not. And and so the plaintiff tried to get spoliation sanctions, but you know, but the profile picture could be restored and a screen capture made for use as evidence. So there was really not a, a, a spoliation case in this situation. In the Gatto case, this was this was one where where the social media materials requested could not be restored. So the plaintiff had produced his Facebook password to the defendants. But when the defendants tried to access the account, the plaintiff got a notification about an attempt to access his account and deactivated it. I'm sorry, the plaintiff did, and the plaintiff tried to restore the account, but it had already been deleted. So there was a spoliation in that case and an adverse inference instruction was made. Finally, in the Crowe case, this was was one I always just like to bring up, because I think it's kind of funny that the plaintiff deactivated his Facebook account after receiving the discovery request to produce materials from it, and then, in response to the discovery request, claimed he did not presently have a Facebook account. So he he, you know, was was kind of being cute there. But but in that case, because the account had only been deactivated and not deleted, the information could be restored. And so there was not prejudice. So listed just a couple of the takeaways here. I think you know this this is kind of what I've already talked about in on the on the prior slides. So I won't I won't go through and and restate all of it. But you know, but I think there's, there's definitely some challenges that we see in social media discovery. But lessons that we can learn from other e discovery case law and and rules that that help us to guide, guide us in the right direction. So so with that, I'd say that, you know, e-discovery certainly can present challenges for attorneys and their clients. And but if we don't follow the rules, it can lead to sanctions that ruin your case. So you need to understand the rules and the case law and know when to get assistance with discovery, so that you can reduce the likelihood of ethical violations and the sanctions that often follow. If you do have do you have questions, you can feel free to reach out to me. My email address is on here, and I have lots of articles and other presentations related to e-discovery and other topics. You can use the link to request those presentations through the online form. And I really appreciate your time and hope that I can answer any questions for you in the future if you have them. Thank you.

Presenter(s)

KDJ
Kirby Drake, JD
Founder
Kirby Drake Law PLLC

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