Developments in E-Discovery

1. Rosemary Connelly, Attorney General’s Office, Trial Division Chief Linda Hamel, General Counsel, Information Technology Division Alan Cote, First Deputy Secretary of the Commonwealth and Supervisor of Public Records, Office of the Secretary of the Commonwealth Stephanie Zierten, Deputy General Counsel, Information Technology Division Jenny Hedderman, Deputy General Counsel, Office of the Comptroller Greg Massing, General Counsel, Executive Office of Public Safety Developments in E-Discovery Electronic Discovery Training, October 2, 2007

2. Electronic Discovery Training, October 2, 2007 Today’s Agenda • Welcome and Introductions: Stephanie Zierten • Overview of Rule Changes: Rosemary Connolly • Electronically Stored Information: Linda Hamel • Records in Common Schedule (RIC): Alan Cote • Guidelines for Implementation: Stephanie Zierten • Fiscal Impact: Jenny Hedderman • Mock Meeting: Greg Massing • Wrap up and questions: all

3. VS. OVERVIEW OF E DISCOVERY IN THE FEDERAL AND STATE COURTS Electronic Discovery Training, October 2, 2007

4. Electronic Discovery Training, October 2, 2007 The Lingo • What is ESI? • It is “electronically stored information” • What are some examples of ESI? • Emails, web pages, word processing files, flash drives or data stored on computer drives.

5. Electronic Discovery Training, October 2, 2007 DISCOVERY IN 2007 • Parties have always been permitted to request documents stored in an electronic format - that’s not new. • What is new are the 2006 Amendments to the Federal Rules of Civil Procedure, specifically the following rules: • 16 Pretrial and scheduling conference • 26 General Discovery provisions • 33 Interrogatories to parties • 34 Document Production • 37 Sanctions; and • 45 Subpoenas

6. Electronic Discovery Training, October 2, 2007 DISCOVERY IN 2007 (continued) • Federal Local Rule 26.5 defines “document” to have a meaning that is: • “synonymous to the usage of that word in Fed.R.Civ.P. 34(a)” and that states: “documents or electronically stored information including … sound recordings images and other data or data compilations stored in any medium from which information can be obtained – translated, if necessary, by respondent into reasonably usable form…”

7. Electronic Discovery Training, October 2, 2007 DISCOVERY IN 2007(continued) • State Court – parties define the terms including the term “document” but most parties define it broadly enough to include ESI. And • State uniform definitions are likely to be implemented in the near term and those are likely to be modeled after the Federal definitions.

8. Electronic Discovery Training, October 2, 2007 1. Send a “litigation hold” letter when litigation is reasonably clear. Agency counsel must send the litigation hold letter to ensure that documents are preserved. Tip- Know where to look for ESI and who the holders of relevant ESI are so you can get the “hold” broadcast out to IT and the people who need to know.Document this step! What is required of parties under the amended Federal Rules?

9. Electronic Discovery Training, October 2, 2007 2. Plan for disclosure of ESI as part of the litigation plan with your AAG. Discuss what format your IT can make the documents accessible in and discuss what format you want the other parties to produce their data so it can be translated. See eg Rule 16 Conference and Auto Disclosure. Tip – get ahead of the curve, take time now to talk with your IT and ITD so you are familiar with what is and isn’t desirable when your agency is faced with an ESI production – what format can we produce ESI in? What precautions the agency take to protect the privacy of individuals and comply with FIPA? WHAT TO DO (continued)

10. Electronic Discovery Training, October 2, 2007 Know that there are two limitations on discovery of ESI: 1. ESI not reasonably accessible because of undue burden or cost Fed. R. Civ. P. 26(3)(b)(2)(B) Or 2. if ESI is lost as a “result of the routine, good-faith operation of an ESI Tip-Because state agencies are required to keep documents in accordance with the state document retention schedules - as a practical matter - there may be a presumption that the agency has all required documents whether they were created or stored in an electronic format or not. These two “safe harbors” may not offer as much shelter to public agencies. WHAT TO DO (Continued)

11. Electronic Discovery Training, October 2, 2007 But what if … 1. an ESI, like a document, is lost? • Unless it was the result of a routine, good faith, operation of the computer system then there may be adverse consequences in your litigation. • Fed. R. Civ. P. 37 permits the imposition of a variety of sanctions for failing to comply with discovery. See Fed. R.37(b)(2) (A) – (E) . At the least there may be an adverse inference against the agency - ie that the evidence lost was harmful to the agency’s position – as a sanction for failing to produce an ESI that, according to the records retention schedule, it should have maintained.

12. Electronic Discovery Training, October 2, 2007 or 2. If the ESI would be too burdensome or costly to produce? • Fed. R. Civ. P. 26(3)(b)(2)(B) states that the party opposing the production on the these grounds bears the burden of such and if that showing is made then only if the court finds “good cause” may it order the production and may specify the conditions (ie shifting the cost of production onto the party making the request)

13. Electronic Discovery Training, October 2, 2007 or 3. If my agency isn’t a party, must it respond to a subpoena duces tecum seeking ESI? Yes, Fed. R. Civ. P. 45 operates the same whether a party is seeking old fashion paper documents or ESI. But, remember you still have 14 days after service of subpoena to serve written objections and then the burden shifts to the moving party to obtain an order to compel the production. Fed. R. Civ. P. 45(c)(1)(B). And, if the subpoena does not specify the form for producing the ESI then you may produce it in the form in which it is ordinarily maintained. Fed. R. Civ. P. 45(d)(A) & (B).

14. Electronic Discovery Training, October 2, 2007 By now you might be thinking you need this:

15. Electronic Discovery Training, October 2, 2007 IT’S NOT SO BAD… • Agency counsel in conjunction with the agency’s IT Department and together with counsel at the AG’s Office will serve their respective roles to ensure that the agency meets its discovery obligations in its litigation. • Getting it done right is everyone’s responsibility!

16. Electronic Discovery Training, October 2, 2007 E-Discovery What Is “Electronically Stored Information” under the Federal Rules of Civil Procedure, and Where Should Agency Lawyers and CIOs Responding to Discovery Requests Look for It?

17. Electronic Discovery Training, October 2, 2007 Electronically Stored Information (ESI): What is It? FRCP Rule 34 Production of Documents, Electronically Stored Information, and Things…Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test or sample any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained-translated, if necessary, by the respondent into reasonably usable form-or to inspect, copy, test or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served . . .

18. Electronic Discovery Training, October 2, 2007 ESI: What is It? (cont.) • Committee Notes on Rule 34 • ESI may exist in dynamic databases and other forms far different from fixed expression on paper • 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 • Rule 34(a) (1) is expansive and includes any type of information that is stored electronically. • ESI includes information “stored in any medium” to encompass future developments in computer technology….[]it] is intended to be broad enough to cover all current types of computer based information, and flexible enough to encompass future changes and developments. • References elsewhere in the rules to ESI should be understood to invoke this expansive approach.

19. Electronic Discovery Training, October 2, 2007 ESI: What Is It (cont.) • Content, media, storage, special data considerations, location • Reasonably Accessible

20. Electronic Discovery Training, October 2, 2007 Examples of ESI Content • System output • System data (when users log on, websites visited, passwords used, docs printed or faxed) • Office documents (ex: Word, Powerpoint, Excel) • Photos • Maps • Movies

21. Electronic Discovery Training, October 2, 2007 ESI Content (cont.) • Electronic calendars and to do lists generated by MS Outlook and other desktop software • IM records • Backup and archival data • Databases • Text messages • Web page content • Email content; email attachment content • Deleted documents and other deleted data* • Voicemail

22. Electronic Discovery Training, October 2, 2007 Examples of ESI Media and Storage Devices • Emails and their attachments • Web pages, old and new • Videos • Floppy disks • CDs • Audiotape • Videotape

23. Electronic Discovery Training, October 2, 2007 ESI: Examples of Media and Storage Devices • Microfilm/Fiche • Data storage Tapes • Hard drives • Servers (web, application, FTP) • Digital film • Thumb drives • Memory cards

24. Electronic Discovery Training, October 2, 2007 ESI Special Data Considerations • Deleted data is not necessarily deleted • Embedded data (draft language, editorial comments, e.g. Track Changes data) • Metadata (data about the history, tracking or management of an electronic file, e.g. email wrapper) • End user search tools that create store of docs accessed (Google Desktop search)

25. Electronic Discovery Training, October 2, 2007 Examples of ESI Locations • Individual employee, contractor or agent of agency: • Hard drive of PC or laptop in central office, remote location, or home for telecommuters, for all kinds of documents • See especially PC hard drive or shared drive storage for emails offloaded from email system (.pst files) • Centralized email and other central system servers • Network servers containing shared drives • CDs, floppy disks in any location where employee/contractor works • USB drives—hard and thumb or flash drives • PDAs----anywhere

26. Electronic Discovery Training, October 2, 2007 Examples of ESI Locations (cont.) • Files stored on individual or network drives • Servers of public email providers used by state employees at work—Google, hotmail • Servers on site or at remote host • Equipment in storage area awaiting disposal • Backup tapes onsite or offsite • Made before upgrades • Made for disaster recovery • Made routinely

27. Electronic Discovery Training, October 2, 2007 ESI Locations, cont. • Cell phones (text messages, phone numbers) and Personal Digital Assistants (PDAs) carried on the person • Blackberry (can cache email) • Treo (can cache email) • Palm Pilot • “Q”

28. Electronic Discovery Training, October 2, 2007 ESI Locations (cont.): Third Party Data Holders • External mail services: • Gmail (Google) • Hotmail (MSN) • Yahoo! mail • Long term storage • Iron Mountain • State archives • Disaster Recovery Contractor • For some systems, tapes shipped out periodically for storage (e.g. SunGuard)

29. Electronic Discovery Training, October 2, 2007 ESI: “Reasonably Accessible” • Basic rule: A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. Party from whom discovery is sought must show that the ESI is not reasonably accessible because of undue burden or cost. FRCP 26(b)(2)(B). Committee Note: UBC in light of cost of searching, retrieving and producing. • However, even after finding that ESI is not reasonably accessible, court may order discovery from such sources upon a showing of good cause. FRCP 26(b)(2)(B).

30. Electronic Discovery Training, October 2, 2007 ESRI: “Reasonably Accessible” • Committee Notes: Courts must apply following test in determining whether to require production of ESI: • Is it RA? • If not RA, is there good cause for requiring production?

31. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • FRCP 26(b)(2)(B) Committee Note: • Reasonably Accessible rule designed to address issues raised by difficulties in locating, retrieving, and providing discovery of some ESI. • Some sources of ESI can be accessed only with substantial burden and cost. In a particular case, these burdens and costs may make the information not reasonably accessible. • Identification of ESI does not relieve party of obligation to preserve evidence. • Requesting party may need discovery (sampling, inspection, taking depositions) to determine whether the ESI they seek is in fact not reasonably accessible.

32. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • Reasonably accessible data is “active”, purposely stored, and available for use by end users.

33. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • Data that is not reasonably accessible cannot be easily accessed by the end user and may include • data stored on backup tapes or legacy systems that are not indexed, organized, or susceptible to electronic search • material that has been deleted and remains but in fragmented form, requiring computer forensics to restore • Data created, used and stored in electronic media no longer in use (8 track tapes, Wang) • Enormous volume • Legacy data that remains from obsolete systems and is unintelligible on the successor system • Databases designed to present certain information in certain ways and that cannot readily create very different kinds or forms of information

34. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • Zubalake v, UBS Warbug, 217 F.R.D. 309, 2003 U.S. Dist. LEXIS 7939, 55 Fed. R. Srv. 3d 622 • Decision is pre-FRCP amendment, but cornerstone e-discovery case • 5 point continuum for evaluating “accessible” vs. “inaccessible” • Touch point for later pre-rules change cases • Likely to be considered post rules change

35. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • Accessible: • Active, online data. Magnetic disk. Active stage of records life, when records created, received, processed. Access frequency is high, access speeds fast (milliseconds) • Near-line data. Robotic storage device (robotic library) housing removable media. Access speeds from millisecond up to 10 to 30 seconds, 20 to 120 seconds for sequentially searched media like mag tape.

36. Electronic Discovery Training, October 2, 2007 ESI: Reasonably Accessible • Inaccessible: • Offline storage/archives. Removable optical disk or mag tape, labeled and stored in shelf or rack. Used for DR and archival records; likelihood of retrieval is minimal. Manual retrieval. Access: minutes, hours, days. • Backup tapes. Sequential access device; must read any particular block of data by reading all preceding blocks. Data not organized for retrieval of individual docs or files. Data compression makes restoration more time consuming and expensive • Erased, fragmented, or damaged data. Fragmentation: As files are erased, contiguous clusters of data are made available as free space; large, newly created files may be broken up and randomly placed throughout the disk. Also, damaged and erased data. In all 3 cases, can only access after significant processing.

37. Electronic Discovery Training, October 2, 2007 ESI: Not Reasonably Accessible but Must be Produced Nonetheless • If the court orders ESI that is not reasonably accessible to be produced, agencies may have to rely on: • ITD to provide backup tapes for ITC-hosted applications or MassMail • Other systems administrators for backup tapes • Local LAN team to help sort through local MassMail archive • Computer forensics consultants

38. Electronic Discovery Training, October 2, 2007 ESI: Computer Forensics • Computer forensics can give agencies access to • data remanence, residual physical representation of data that has been in some way erased • Deletion removes only pointers to the directory system, not the deleted document itself • Data on media that is damaged, has failed, or become corrupted

39. Electronic Discovery Training, October 2, 2007 ESI: Computer Forensics • Tools available for taking snapshot of data on particular day: • Imaging hard drives of desktop, server, laptop or media storage devices • Data analysis

40. Electronic Discovery Training, October 2, 2007 ESI: Computer Forensics • Tools available for data recovery • Physical damage: • Hardware repair • Disk imaging (extracting the raw image on a disk and reconstructing usable data after repair of logical damage) • Logical damage (damage to file system that prevents it from being mounted by the host operating system) • Consistency checking • Rebuilding the file system from scratch, after studying organization of original files • Deleted data • Specialized software

41. Electronic Discovery Training, October 2, 2007 ESI: Computer Forensics • For prospective document freeze, “journaling” incoming and outgoing emails.

42. Electronic Discovery Training, October 2, 2007 ESI: Computer Forensics $$$$$$$$$$$$$$$$$$$$$$$$$$$$$

43. Electronic Discovery Training, October 2, 2007 ESI: Who Knows Where it is Stored? • The agency employees, contractors or agents whose documents are subject to discovery • Agencies have certain contractual rights under the Commonwealth’s T’s and C’s to the documents created by vendors in fulfilling their contractual obligations • Your CIO or Systems Administrator • Business owners of the data • None of the above alone; e-records and e-devices are not 100% centrally controlled or managed in any organization

44. Electronic Discovery Training, October 2, 2007 ESI: Who knows where? (cont.) • Data center host • Webmaster • Current web pages • Archived pages

45. Electronic Discovery Training, October 2, 2007 ESI: Who knows where? (cont.) • Administrator of agency system • Administrators of ANF centrically administered systems • HRCMS • NewMMARS • NewMMIS • MassMail

46. Electronic Discovery Training, October 2, 2007 ESI: Who knows where it is stored? • Do not limit your inquire to CIO; he or she may not necessarily know: • Whether employees are using HotMail or home email addresses to conduct state business • Whether they have copied emails to .pst files before deleting them • Whether they download Commonwealth documents to their home PC, handheld or other personal device • Answers to questions about systems administered at the enterprise level

47. Electronic Discovery Training, October 2, 2007 ESI: Conclusion • Move from paper to electronic discovery has decentralized discoverable material and the persons who control it. Control over access and knowledge often in hands of user instead of central agency authority • Start by developing an ESI map taking into account people, data, devices, and locations. • Do not under any circumstances rely on your CIO and ITD alone to determine what discoverable ESI your agency’s employees and contractors may control

48. Electronic Discovery Training, October 2, 2007 Linda Hamel General Counsel ITD (617)-626-4404 Linda.hamel@state.ma.us Thanks to ITD Legal Intern Sean Kass, HLS ‘08

49. Electronic Discovery Training, October 2, 2007 Supervisor of Public Records;Records In Common Schedule http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm

50. Guidelines for Agencies Electronic Discovery Training, October 2, 2007