E-Discovery

• Digital storage for documents

• Almost every case has a component even if not at first, can potentially ex emails
• Everything is digital
◦ Even papers are scanned
• Unavoidable in litigation
• Preservation and ethical requirements to protect firms
• Very expensive
• Ethical
‣ In 2016, Ohio required all lawyers to have the skill and know about change in
relevant technology
• Facebook
◦ Mark was 19 when he made face mash which rated students based on looks
◦ Facebook was exclusively for Ivy League students
‣ Had to have Harvard edu to register
◦ Exploded overnight
◦ Mark was working with twins who had the idea of a dating site called Harvard
Connections which they thought he was helping them with
‣ Was meant to restore his reputation after students were mad about Face
Mash
• Mark used this on Facebook
‣ Twins had money too
◦ Eduardo Saverin funded at first and was supposed to get 30% but Mark did him dirty
‣ Share of 34%->.03%
‣ Used him for money, had roommates for the programming
‣ He was supposed to be co founder and CFO
‣ He was president of Harvard investors association
◦ Application
‣ Email exchange
‣ Data and code in Face Mash
‣ Hacked Harvard’s website
‣ Emails to invite to join
‣ Code to Facebook
‣ Initial code from twins for their site
‣ Texts
‣ Facebook communication
‣ Domain site registration
‣ Facebook server

Email servers
• Some companies have automatic deletions unless stored
• Retention policies
◦ Check legal requirements: based on what type of info is being stored, where it is
being stored; could have other policies in different places stored, who is reviewing and
auditing info
• Understand policies before you step in
• Duty to preserve
◦ Party should have known that evidence would be relevant later (always possibility of
litigation)
◦ Continuing obligation
◦ Make sure clients are complying
◦ Help clients understand what they need to preserve and give special searches to
identify information needed (litigation hold letter)
‣ Tailor litigation hold letter to size of client and needs of dispute
• Include examples to give context for ideas
• Also send to third parties and opposing parties
• Continue to follow up
◦ Enforcement over time
◦ Evolves as case evolves
• Send pre suit
• Recognize you’re confident to handle

Federal rules:
• Wording was changed to narrow: more targeted, reasonably calculated to lead to
evidence/be admissible
• Addition: proportionality
• Deletion is a big issue
• Objections must be lodged with specificity

Requesting:
• Inform asap
• Be specific
◦ Shows knows what you’re looking for
◦ Need specific format that is acceptable
‣ Not required to produce multiple forms
• Byod (bring your own device), work on personal device at some point so when requesting
info consider personal devices for relevant info
◦ Even asking about fitness devices like watches
• There is more data out there and is growing

Replying to request:
• Share costs and meet in middle
◦ Can reduce discovery notions and shortcut dispute

• Once sent out, did clients preserve evidence

◦ Make sure clients know their responsibilities
‣ If not preserved properly it is either lawyer or client fault or both and would
need separate counsel
• Finger pointing
• Opposing doesn’t have automatic right to see letter but sometimes the information is
obtainable
◦ Don’t forget attorney client privilege
 ‣ Answer questions without disclosing info

• Discovery of social media info

◦ Ask clients about everything they have done
‣ They might not think a private post has gotten out there
• Cases can turn or can be denied because of a post
◦ Can also not be relevant example personal communication that has nothing related
to work
‣ Very broad and lead to objections because no relevant evidence
‣ Has to have good reason to ask for passwords/accounts
• Third party can review for relevance
◦ Again be specific
‣ Typically a short window of time which can limit request
• Give categories and words don’t ask for intrusive things like passwords
◦ Important to familiarize yourself with new forms of social media
‣ An attorney had license suspended because was older and didn’t understand
Facebook which his client used
• Told client to delete (extreme case)
• Accused other side for ethical violation because communicated with
client even though was public
◦ Accused opponent of hacking computer
◦ PDFs on websites
‣ Locations don’t show

Managing E-discovery
• Large scale of documents
• Example
◦ School district and public record/school law litigation
‣ Student privacy
‣ 100000 emails
• Superintendent has private and public accounts
‣ Relativity platform
‣ Came up with 20 search terms and within half an hour came up with emails
to hand over
• Hilary Clinton had 50,000 which is not that much anymore
◦ Two IT companies were suing each other
‣ From different states
‣ Huge e-discovery potential
• Anti trust cases have millions of documents
• Process
◦1
‣ Sit down and look at what you have, all devices and talk about it
‣ Information governance is important before litigation
• Need good policies
‣ Special device collection for social media, need to hire forensics
 ‣ Where is the evidence, who will review it
‣ Can pay reviewers
‣ Reasonable timeline
• Often guided by court
• But also keep yourself on guard because there are so many
‣ Sample documents
‣ ESI
‣ Back and forth with opponents about search terms
‣ Need protocols for teams
• Privilege
• Confidentiality
• If it is responsive
• Redaction
‣ Tracking it, have someone overviewing/ coordinating the process
‣ Need to decide how to send and receive documents
• Nature (as seen in program)
◦ Cheaper and more data
• Tif (pics)
◦ Easier/cleanser, stamps
• Metadata
◦ Information about ESI that comes along with it
◦ Need to ask for it
◦ Helps with context ex who wrote it
◦ Can more effectively search the document

• Predictive coding
◦ Large sources of ESI
◦ Somebody codes a few documents so computer learns like an algorithm for
responsive documents
◦ How to check manipulation
‣ Process is collaborative

• Inadvertent disclosure
◦ Have to take reasonable measures to safeguard to prevent privileged information
‣ May have to manually review at times
◦ If received, notify sender under ethics and delete it or return it/send back or
sequester (set aside )
◦ Be careful if they remain in your email system
◦ Addresses opposing counsel how to handle
‣ Usually on large scales
◦ If you have done it, notify party that received
‣ Do not wait so there is no debate if you waived the privilege
‣ Request it be returned or deleted

• Protective orders and clawback agreements

 ◦ Detail how it would be handled
◦ Tailor to cases
◦ Accounts for concerns with e-discovery and personal info
◦ Write who reviews, how long it will take, what searches are run
◦ Designate items for attorneys eyes only vs confidential
◦ Consider what happens with info after litigation, figure out what happens with
confidential info, can have court continue to enforce protective order
◦ Protective order vs sealing documents
‣ As soon as something is put into court docket it is assumed to be public
‣ Needs to be sealed to stay attorney eye only
‣ 6th circuit decision case 15-1534, public has interest in obtaining court record
info it would go against public policy
• Bar is high to seal
• Needs to be a valid reason
• If important enough for court it is important enough for the public go
see
‣ Sealed has become less physically “sealed” online, used to be physically sealed
in basements
• Means to protect from public view
• To seal must file in court
◦ With technology make sure your protective order entails what happens after
litigation is over
◦ A protective order is agreement between parties of what they will use but as soon as
you want something part of the case that the court will see it is presumed it will become
public