Proportionality in E Discovery: Emerging Strategies Leveraging Proportionality Tools to Reduce E Discovery Abuses and Expenses

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A Proportionality in E Discovery: Emerging Strategies Leveraging Proportionality Tools to Reduce E Discovery Abuses and Expenses WEDNESDAY, MAY 11, pm Eastern 12pm Central 11am Mountain 10am Pacific Td Today s faculty features: Gina M. Trimarco, Attorney, DLA Piper, Florham Park, N.J. Jonathan Evan Goldberg, Partner, SNR Denton, New York Conor R. Crowley, Partner, Crowley Law Office, McLean, Va. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Overview of Recent Developments in Proportionality Conor R. Crowley, Esq., CIPP

6 Topics Federal Rules of Civil Procedure Case law addressing proportionality The Sedona Conference Commentary on Proportionality in Electronic Discovery 6

7 FRCP Rule 26(b)(2)(C)(i) )() Rule 26(b)(2)(C)(i) allows courts to impose limitations where the discovery sought is unreasonably cumulative lti or duplicative, or can be obtained from some other source that is more convenient, lessburdensome burdensome, orlessexpensive expensive. 7

8 FRCP Rule 26(b)(2)(C)(i) )() Rule 26(b)(2)(B) ) provides that [a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. 8

9 FRCP Rule 26(b)(2)(C)(i) )() Young v. Pleasant Valley Sch. Dist., No , 2008 U.S. Dist. LEXIS 55585, at *6 7 (M.D. Pa. July 21, 2008). The court rejected the plaintiffs request for production of e mails locatedon on back up tapes, citing Rule 26(b)(2)(C)(i), and noting that [t]he burden and expense of rebuilding the district s e mail system in order to provide the discovery requested by the plaintiffs, along with the additional and less expensive means available for plaintiffs to get this material[,] makes the plaintiffs discovery request impractical. 9

10 FRCP Rule 26(b)(2)(C)(ii) ) Rule 26(b)(2)(C)(ii) provides that courts may limit discovery where the party seeking discovery has had ample opportunity to obtain the information by discovery in the action. Akin to applying the concepts of waiver and laches 10

11 FRCP Rule 26(b)(2)(C)(ii) ) Ford Motor Co. v. Edgewood Props., 257 F.R.D. 418, 426 (D.N.J. 2009) Reasonableness is the touchstone principle, as it is with most discovery obligations. The simple holding here is that it was unreasonable to wait eight months after which h production was virtually it complete [to object to the adequacy of the production]. 11

12 FRCP Rule 26(b)(2)(C)(iii) ) Rule 26(b)(2)(C)(iii) provides that, in assessing whether to limit discovery, courts may consider whether the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 12

13 FRCP Rule 26(b)(2)(C)(iii) ) Metavante Corp. v. Emigrant Sav. Bank,, No , 2008 U.S. Dist. LEXIS 89584, at *10 (E.D. Wis. Oct. 24, 2008) In viewing the totality of the circumstances, including the amount in controversy in this case, the parties resources, and the issues at stake, the court concludes that the burden [of production] does not outweigh the value of the material sought. 13

14 FRCP Rule 26(b)(2)(C)(iii) ) Cenveo Corp. v. Slater,, No , 2007 U.S. Dist. LEXIS 8281, at *4 (E.D. Pa. Jan. 31, 2007) The dispute before the Court requires a weighing of df defendants d t burden in producing the information sought against plaintiff s interest in access to that information. Because of the close relationship between plaintiff s claims and defendants computer equipment, the Court will allow plaintiff to select an expert to oversee the imaging of all of defendants computer equipment. 14

15 FRCP Rule 26(b)(2)(C)(iii) ) Kay Beer Distrib., Inc. v. Energy Brands, Inc.,, 2009 WL (E.D. Wis. 2009) Defendant] has no obligation to turn over to an opposing party in a lawsuit non discoverable and privileged iil information.... The mere possibility of locating some needle in the haystack of ESI... does not warrant the expense [defendant] would incur in reviewing it. 15

16 FRCP Rule 26(b)(2)(C)(iii) ) Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139, 148 (D.D.C. D 2007) The court denied the defendant s request to limit discovery of back up tapes, given the importance of the issue at stake and the parties resources. 16

17 The Sedona Conference The Sedona Conference is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference seeks to move the law forward in a reasoned and just way. 17

18 The Sedona Conference Commentary on Proportionality in Electronic Discovery 18

19 Principle 1 The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation. 19

20 Principle 2 Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources. 20

21 Principle 3 Undue burden, expense, or delay resulting from a party s action or inaction should be weighed against that party. 21

22 Principle 4 Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production. 22

23 Principle 5 Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery. 23

24 Principle 6 Technologies to reduce cost and burden should be considered in the proportionality analysis. 24

25 Thank You! Conor R. Crowley, Esq., CIPP Crowley Law Office 6526 El Nido Drive McLean, VA Ph: Fax:

26 Practical Proportionality Tools & Metrics Gina M. Trimarco

27 Overview I. Quantifying the Burden or Benefit - Context Preservation or Production II. Developing Extrinsic Information Sampling Technology Staging III. Perspective Proportionality for the requesting party and the responding party 27

28 Context of Burden or Benefit Preservation or Production Federal Rules Rule 26(b)(2)(B) Courts may order discovery from sources that are not reasonably accessible due to undue burden or cost for good cause Rule 26(b)(2)(C)(iii) Courts should consider the importance of burdensome or expensive discovery, considering the needs of the case, amount in controversy and the parties resources Rule 26(g) Reasonableness relates to the needs of the case factors Rule 45 Subpoenas to third-parties Non-Monetary Factors 28

29 Developing Extrinsic Information What is the problem? Volume Format Lack of Information Lack of Resources Third-Party Concerns What is the goal? Reduce Volume Find Information Contest Claims of Burden (accuracy of cost assessment) 29

30 Developing Extrinsic Information Requesting Party Relevant Material Unique Support need for discovery from burdensome source Challenging privilege withholding or completeness of production Producing Party Not arguments Demonstrate that the burdensome data source is not worth it Defend preservation, privilege and production issues Quantify and demonstrate the burden 30

31 Developing Extrinsic Information Importance of the Discovery How to Value the Unknown Fact-specific Who created the data? When was it created? Can an inference be drawn from discovery already produced? How does the data relate to the key issues or custodians? Is the data a form of communication widely used in the business or by the key custodians? Can information about the data be developed with interviews or depositions? Bad faith or evasive behavior? 31

32 Extrinsic Information - Sampling General Tips for All Sampling Judgmental Sample Not random Can be appropriate to choose population Target area of dispute, key custodians or sources, cost issues Statistical Sample Subset of Data at Issue Random Simple, Systematic, Stratified or Clustered Accuracy and Confidence Level Statistically Valid 32

33 Extrinsic Information - Sampling Purpose of Sampling Prove or disprove relevance and materiality of information stored on burdensome data sources Prove or disprove volume of relevant information stored on burdensome data sources Identify information from sources that are not reasonably accessible Tool for discovery negotiation meet and confer example Agree to $5,000 of data processing to sample the data at issue Reduce volume with de-duplication Apply search terms Agree on review procedure Determine whether the data at issue contains relevant information such that its benefit outweighs the burden Use sampling for quality control of the search terms 33

34 Extrinsic Information - Sampling Filters Search Terms (sampling to test results) Process and de-duplicate duplicate a statistical or judgmental sample of data from the problem source Apply subject-matter search terms (meet and confer) Choose a statistical sample from search results, is volume still a problem? Determine degree of importance (relevance and uniqueness) Concept Clustering Tools Similar - except instead of search terms Software will group documents according to concept Can be search driven Parties could agree on sampling of concept results to review Use to reduce data exclude groups of non-relevant documents Alternatively use to include Use concept tools to reduce data before searching 34

35 Extrinsic Information - Burden How to Determine Expense Approximately 50 documents per-hour average review speed 100,000 documents (any page count) 2,000 hours $50 per-hour = $100,000 $200 per-hour = $400, Is it reasonable to base expense of review of every document at what volume is it no longer reasonable? Processing wide range $0 in-house systems, $350 - $550GB 100,000 documents could be 30GB ($10,500 - $16,500) 35

36 Proportionality Tools in Action Hypothetical 1hard ddi drive containing i 50GBs Custodian names are available PST information is available Producing party complains about the cost of processing and review Requesting party is a large corporation, producing party is the former principle of small company The litigation is worth at least $300,000,000 How extrinsic information and sampling can help 36

37 Proportionality Tools in Action Hypothetical Plaintiff i and defendant d both have terabytes t of potentially relevant data Format varies - easily accessible to nearly impossible Neither company has access to in-house processing The litigation is worth at least $300,000, Containing costs Staging Technology and sampling can help Discovery pre-nup? 37

38 Proportionality Tools in Action Hypothetical The unequal parties - Defendant, producing party, has voluminous data in burdensome formats Plaintiff, primary requesting party, does not have much discovery to produce The litigation is worth no more than $200,000 What if litigation involves issues of civil rights, discrimination v. collection on an insurance policy? Resources of defendant? 38

39 Perspective Tools & Metrics For the requesting party Reasonableness Establish existence of relevant discovery Sample difficult sources Compromise to develop information Argue that the discovery is worth it in context Propose solutions to reduce costs, including technology or staffing 39

40 Tools & Metrics Cases F.T.C. v. Church & Dwight Co. Inc., 747 F.Supp.2d 3, (D.D.C. 2010) Kay Beer Distrib., Inc. v. Energy Brands, Inc., No , 2009 WL (E.D. Wis. June 10, 2009) Kipperman v. Onex Corp., 260 F.R.D. 682 (N.D. Ga. 2009) Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008) National Day Laborer Organizing Network v. U.S. Immigration and Customs, No , 2011 WL , (S.D.N.Y. February 07, 2011) Orbit One Comm., Inc. v. Numerex Corp., 271 F.R.D. 429, (S.D.N.Y. 2010) Southern Capital Enters., Inc., v. Conseco Servs., L.L.C., No JJB- SCR, 2008 WL (M.D. La. 2008) Spieker v. Quest Cherokee, LLC, No , 2008 WL (D. Kan. 2008) Young v. Pleasant Valley Sch. Dist., No. 3:07cv854, 2008 WL (M.D Pa. July 21, 2008) 40

41 Best Practices for Arguing Proportionality to the Court Jonathan Evan Goldberg Partner T jonathan.goldberg@snrdenton.com snrdenton.com 41

42 About SNR Denton SNR Denton is a client-focused international legal practice delivering quality and value. We serve clients in key business and financial centers from 60 locations in 43 countries, through offices, associate firms and special alliances across the US, UK, Europe, the Middle East, Russia and the CIS, Asia Pacific, and Africa, making us a top 25 legal services provider by lawyers and professionals worldwide. Joining the complementary top tier practices of its founding firms Sonnenschein Nath & Rosenthal LLP and Denton Wilde Sapte LLP SNR Denton offers business, government and institutional clients premier service and a disciplined focus to meet evolving needs in eight key industry sectors: Energy, Transport and Infrastructure; Financial Institutions and Funds; Government; Health and Life Sciences; Insurance; Manufacturing; Real Estate, t Retail and Hotels; and Technology, Media and Telecommunications. 42

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44 Jonathan Evan Goldberg [INSERT PICTURE] Jonathan Evan Goldberg is a member of SNR Denton s Litigation practice, where he focuses on all aspects of complex commercial litigation, employment law and litigation, and ERISA litigation. An experienced trial lawyer and frequent public speaker, Jonathan has successfully represented numerous clients in federal and state courts throughout the United States in matters involving claims of retaliation, discrimination, wrongful termination, fraud, and breach of contract. Jonathan also routinely represents corporations and individuals in trade secrets and restrictive covenant litigation, assists clients in understanding and addressing the various legal issues raised in connection with the failure of Bernard L. Madoff Securities, Inc., and has defended corporate and individual clients in connection with investigations by the United States Department of Labor and the United States Department of Justice (Antitrust Division). In addition to the foregoing, Jonathan also concentrates on (and advises clients with respect to) the following: advancement and indemnification proceedings, civil RICO litigation, whistleblower litigation, defamation litigation, executive compensation litigation, and arbitration, international litigation and arbitration, antitrust litigation and arbitration, products liability litigation, and environmental and toxic tort litigation. 44

45 Proven Strategies for Arguing Proportionality to a Court 45

46 A strong argument for discovery in stages is that the nature of the claims in a case is likely to change, for example because: A complaint is likely to be amended Certain causes of action may be dismissed Other parties are likely l to be joined A class may be certified Tamburo v. Dworkin, 2010 U.S. Dist. LEXIS (N.D. Ill. Nov. 17, 2010) 46

47 A party may succeed in arguing that expensive discovery procedures should be limited to the most relevant discovery areas, including: Information in possession of one of the parties, as opposed to that in possession of non-parties Information that is relevant to a claim that is likely to be litigated, as opposed to one that is likely to be dismissed Information that has not yet been the subject of previous searches or reviews Tamburo v. Dworkin 47

48 A court may agree to allow burdensome discovery where the party seeking it is willing to pay the cost. Conversely a party may be able to limit discovery by showing that it is overly burdensome compared to the potential benefit. Silverman v. Shaoul, 30 Misc.3d 491, 913 N.Y.S.2d 870 (N.Y. Sup. 2010) 48

49 This is particularly true where the burden of producing documents will be higher than the normal burden of litigation, for example: Where deleted data or back-up tapes must be restored Where a special program would be required to extract or read the data produced Where the use of computer experts would be necessary to retrieve information Silverman v. Shaoul 49

50 Courts are likely to look favorably upon a showing by a party that it has attempted to cooperate with opposing counsel in the discovery process, for example by: Completing or supplementing its Rule 26(a) disclosures before moving on to other parts of discovery Identify[ing] which claims are most likely to go forward and concentrat[ing] their discovery efforts in that direction before moving on to other claims. Prioritizing [its] efforts on discovery that is less expensive or burdensome. Tamburo v. Dworkin 50

51 Further signs of cooperation that courts require or favor may include: Furnishing discovery requests that are reasonably targeted, clear, and as specific as practicable. Agreeing on the format in which electronically stored information will be produced Agreeing on preservation efforts early and revisiting them throughout the case to limit time wasted in discovery regarding a party s preservation efforts 7th Circuit it Electronic Discovery Committee, Pi Principles i Relating to the Discovery of Electronically Stored Information (Aug. 1, 2010) 51

52 Examples of specific and useful information include, but are not limited to: names of the parties; factual background of the potential legal claim(s) and identification of potential cause(s) of action; Names of potential ti witnesses and other people reasonably anticipated i t to have relevant evidence; relevant time period; and other information that may assist the responding party in assessing what information to preserve. Principles Relating to the Discovery of Electronically Stored Information 52

53 Best practices include the following: Don t relyon pure heart, empty head - Show the Court that you acted thoughtfully, reasonably, and in good faith in preserving or attempting to preserve information prior to litigation Preserve relevant evidence in an accessible format at the outset - Court will consider the format Failure to preserve relevant information at the outset - will be considered by the Court when party seeks to avoid resultant burden of restoring information. Advisory Committee Notes to FRCP 26(b)(2) 2006 Amendments - an appropriate consideration in assessing burden and expense in context of claims that information is not reasonably accessible is failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources. 53

54 Consider the burden of the proposed discovery vs the benefit - conduct a proportionality p analysis - ensure scope/duration reasonable proportional p to value of requested information. Consider: Needs of the case Amount in controversy Parties resources Importance of issues at stake Show the Court you ve considered these issues and incorporated them into your requests 54

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