Conference Call 1 (888) 346-3659 Participants’ PIN 2024# Thanks Chuck, for spreading the word. I’ve put Item 1 (forms project) last because that agenda item is too long & detailed to put first – would deter readers from getting to the other items): 2. Document Dump Tough-Nuggies decision – cited thus by MJ Waxse in recent CLE panel discussion Williams v. Sprint/United Mgmt. Co., CIVA03-2200-JWL-DJW, 2006 WL 3691604 (D. Kan. Dec. 12, 2006) (Waxse, M.J.). Deny motion for sanctions on alleged “data dump” because requested party had requested all documents related to topic & that’s what producing party gave them. The requesting party should have asked for only one copy of each document. a. Contrary to practice (“any & all”) – explicable because D filed separate motions over time asking for attachments & only later for transmitting emails & only later in native format b. Ask for one copy of each variant? c. Ask for one copy of with unique author? Date? Other variable? d. Really not that difficult to cull using e-discovery software (not really an insurmountable dump): ± 2,500 RIF spreadsheets spread among ± 11,000 emails (either duplicate or no attachments on some). 3. The problem of Dark Data (not to be confused with either ephemeral data or metadata DARK DATA: Unindexed backups, left over undisposed legal holds, Disks, flashdrives, old hard drives, unknown cloud copies (either enterprixe or individual employees) Ephemeral: Digital printer & fax memory images, voice messages, text messages, RAM (but one court in Calif ordered preserved) Metadata: Data about data 1. Date, author, size, modifications & 2. Revisions/additions, deletions, comments. 4. Sedona Conference work in progress on "privacy in the courtroom" & related case of Sullo & Bobbitt v. A bunch if Texas local governments (3 ND Tex decisions & appeal now pending in 5th Cir). Two tangentially relevant to ediscovery Sullo & Bobbitt, PLLC v. Abbott, No. 3:11–CV–1926–D, 2012 WL 2796794, (N.D. Tex. July 10, 2012), appeal pending Sullo & Bobbitt, PLLC v. Abbott, No. 3:11–CV–1926–D, 2013 WL 3834403 (N.D. Tex. July 25, 2013), appeal pending Standard: Logic & Experience nationwide – same as right to attend hearings. Nat’l Center for State Courts – No muni court has immediate access to citations . EDiscovery Forms project A. RECRUITED ADDITIONAL MEMBERS – PARTICULARLY ASKING THOSE ON CITY ATTORNEY LIST – AND ADDITIONAL DRAFT “VOLUNTEERS” B. BEFORE HOLIDAYS PROMISED TEAM DRAFTING ASSIGNMENTS BUT HAVEN’T SENT OUT YET; C. PERSONAL HESITANCE TO MAKE ASSIGNMENTS FOR PEOPLE I DON’T PAY BUT NECESSARY a. VOLUNTEER TEAMS OF 3 OR SO LAWYERS? b. TEAMS CHOOSE FORMS? c. If this doesn’t work I’ll just assign & hope for the best. a. Check list for legal hold trigger events (how to decide if a given fact or notice is sufficient to require a legal hold). The annotation to this can address the varying views on proportionate responses, etc. b. Form responses to legal hold demand: i. Prelitigation 1. Responding to demand from attorney 2. Responding to demand from non-attorney ii. Responding to notice of administrative claim (to me the toughest issue) iii. Any communication after litigation commences (treating the initial pleadings as the demand)? I can’t think of anything necessary aside from (g)& (h) below. c. Form demand letters requiring or requesting legal holds by persons other than city officers/employees [while rules of civil procedure & case law don’t explicitly impose preservation duties on non-parties, contracts and penal statutes often do. Even if not – would it hurt to ask?]: i. Opposing counsel ii. Opposing pro se plaintiff/claimant iii. City contractors iv. Former city contractors v. Former (retired & other) city employees vi. Affiliates of plaintiff/claimant: present & former contractors, employees, retained experts, other agents with knowledge [as to present employees & experts, ethics may require communication go through opposing counsel] d. Form initial legal hold memos to City personnel (I personally use a consolidated memo for IT and custodians; staff who participated in underlying transaction; & management but I’ve always wondered if separate memos might work better because they’d be shorter & contain only info that the targeted recipient needed. I would like to start by drafting separate memos & we can always consolidate them): i. To IT (I use IT, CIS, & similar terms interchangeably to mean the staff that is responsible for city computer networks). Before we finalize any forms intended to go to IT, come from IT or be used by IT, I suggest that we ask IT tech personnel to review & comment on those forms. For now, I think we can start drafting so at least what we need is there, even if not yet translated into GeekSpeak. ii. To Management iii. To document custodians & other persons with knowledge (any reason to separate the two?) iv. To City’s outside counsel & in-house attorneys e. Form for responses to initial legal hold memos (To extent forms not included in initial legal hold memos) i. From IT ii. From custodians & persons with knowledge iii. Any other forms (from contractors? Former employees, etc.) – is this worth doing? f. Checklist agenda for meeting(s) with IT, custodians, & persons with knowledge (identifying relevant documents & ESI, developing search, preservation & review procedures tailored to case, including choice of key search terms if that will be ESI search method) g. Checklist for initial meeting with opposing counsel: i. Info on network architecture, stand-alone platforms, operating systems, retention, backup & archive procedures, software used, file locations, etc. to disclose ii. Questions on same to ask opposing counsel iii. Stipulations re scope of legal hold iv. Stipulations re key words or other search methodology v. Other stipulations vi. Pretrial orders h. Form of proposed pretrial order i. Other legal hold forms? j. Form memos & letters terminating legal hold(s) CHECKLIST FOR eDISCOVERY PREPARATION, IDENTIFICATION & COLLECTION FOR USE IN DISCUSSIONS WITH CLIENT, RULE 16 CONFERENCE WITH ADVERSARY & INITIAL DISCOVERY INTERROGATORIES TO EXTENT NOT RESOLVED BY CONFERENCE & DISCLOSURE. N.B. CONFERENCES WITH BOTH YOUR CLIENT & YOUR ADVERSARY WILL NEED TO BE REPEATED AS NEW INFORMATION IS OBTAINED & ISSUES CHANGED OR NARROWED. N.B. MANY QUESTIONS WILL HAVE MULTIPLE ANSWERS BECAUSE, FOR EXAMPLE, THERE ARE DIFFERENT NETWORKS OR OPERATING SYSTEMS OR APPLICATIONS USED FOR DIFFERENT PURPOSES. ANSWERS MAY ALSO VARY FOR DIFFERING TIME PERIODS, LOCATIONS, OR OTHER VARIABLES. 1. Document Retention Policy 1.1 What is it/are they/were they during the relevant time period? In Writing? Applicable laws or regulations? (for non-governments this may still be relevant based on obligations under tax laws and other applicable regulations requiring retention of some records? 1.1.1. For each policy that exists or has existed during relevant period, when was the policy implemented & terminated? 1.1.2. What procedures used to enforce the policy? Who is in charge of enforcement? Any applicable directives? Memos? Audit reports? Audit protocols? 1.1.3. Changes in the policy during times relevant to litigation? 1.1.4. Ask for copies of all policies and related documents (audits, memos) 1.2 As a matter of policy or practice, do you overwrite, reformat, erase, reuse, or otherwise destroy backups of your network servers on a periodic basis? 1.2.1. What circumstances or criteria? 1.2.2. What are the time intervals? 1.2.3. When have these time periods or overwrite policies changed during period relevant to the litigation & what were the changes? 2. Who are Custodians 2.1 Employees & Officials (computer users, backup data custodians, custodians of computers of ex-employees) involved in events leading to litigation (a/k/a “key players” “key personnel”) 2.2 Former employees & officials. What measures to obtain? Legal right to demand? Subpoena? 2.3 CONSIDER DATA POSSIBLY ON LEGAL HOLD FROM OTHER LITIGATION 2.4 Outside consultants & other contractors; other governmental units? What measures to obtain? Legal right to demand? Subpoena? 3. Tech Staff (or contractors). Who is responsible for running computer network and other computer, telecomm, & related equipment? 4. Legal Holds. 4.1. What already accomplished & what are in progress? CONSIDER DATA POSSIBLY ON LEGAL HOLD FROM OTHER LITIGATION 4.2. Are in progress? 4.3. Are still needed? 4.4 Legacy data no longer readily accessible 5. Network Servers 5.1. Describe all network-based systems used?. 5.2. Describe all back-up systems? 5.2.1. Do any computers alone or together contain backup of each of your network servers for each month for the relevant period (i.e., non-incremental, not overwritten)? 5.2.2. For which months do you have & for what months do you not have at least one complete backup? 5.2.4. For gap months, are there incremental backups or other backups from which a full backup can be created of all data (or at least of most responsive data) in each such month? If so, describe those backups & for what time periods? 5.3. Can specific files contained on network backups be selectively restored? 5.3.1. How? 5.3.2. Are there already any full or partial restores of relevant data made for any other project or purpose? Or maybe even in connection with this case or events leading to the litigation? 6. Other ESI Platforms 6.1 Intranet or other database accessible to any employees that has potentially relevant information? 6.2 Social media, discussion groups, blogs, electronic bulletin boards, etc. used officially or informally containing potentially relevant information 6.3 Ditigal printers with memory? 6.4 Voice messages & unified (email/voice mail combined) messages 6.5 Cloud services used officially or informally, with or without permission by custodians? 6.6 Thumb drives, writable disks & other portable media 6.7 Personal smart phones & other personal digital devices either officially issued or personal to key personnel (smart phones, 6.8 Other network or cloud servers at any remote locations, backups, archives? 6.9 Separate e-mail servers 6.9.1 Identify the systems (client and server-side applications) used for email and the time periods, departments, locations applicable to each. 6.10 Are end-user emails that appear in any of the following folders stored on (i) the end-user’s hard drive, (ii) an email server, or (iii) a server of a third party application service provider (iii) cloud or other location: 6.10.1 “In Box”? 6.10.2 “Sent Items”? 6.10.3. “Delete” or “trash” folder? 6.10.4 End user stored/archived/saved/copied mail folders? 6.10.5 End user subfolders of any of the above? 6.11 Any legacy email systems that changed or stopped being used durreing the relevant period and the date & present location of the last backup made with each relevant legacy system. 6.12. Is there at least one complete (i.e., non-incremental) backup of each of your email servers for each month of the relevant period? 6.12.1 If there are gaps, for which months do you not have at least one complete backup? 6.12.2. For gap months, describe any incremental or other backups from which a full backup can be created of all data as of a given date in each such month? 6.12.3 Any gaps in data preservation between complete email backups? 6.12.4. Do email backups contain the messages that are in each employee’s “In Box”, “Sent Box” “Deleted [or Trash] Box” stored or archived boxes, and all subfolders of any, but particular of “In Box” as of the time of the backup? 6.12.5. Do your email backups contain the messages that have been stored or saved to each employee’s hard drive? 6.12.6 Can specific user’s email boxes contained on email backups be restored selectively? 6.12.7 Do you have a map or index of your network including computers & peripherals, that can identify which employees’ email is stored on particular backups? 6.12.8 As a matter of policy, do you overwrite, reformat, erase, reuse, or otherwise destroy backups of your e-mail servers on a periodic basis? 6.12.8.1 If so, what is the rotation period? 6.12.8.2 What if any changes in the rotation period during times relevant to the litigation? 6.12.9 Describe any system that ever maintained electronic copies of all emails sent or received by certain users? What is left? Anything ongoing? Anything relevant to the litigation? 7. Hard Drives [current or former employees’ & officials’ non-networked laptop, desktop, tablet, netbook, etc. computers & workstations] 7.1 Details of any backup policies & systems including duration. 7.2. As a matter of policy, are employees or officials permitted to save files, emails, or other data (excluding system- and application-generated temporary files) to their desktop, laptop or other hard drives, or to the cloud? 7.3 Since the start of the time period relevant to the litigation has it been technically possible employees or officials to save files,emails, or other data (excluding system and application generated temporary files) to their desktop, laptop, or other hard drives or to the cloud? 7.4. Are there any technical blocks to saving off the network? 7.5 Is it possible for employees or officials to override such blocks? 7.6 What searches have been done to determine the extent to which any of the key custodians in this litigation saved files, emails, or other data anywhere off the network? 7.6.1 Were they even asked if they did? 7.7 As a matter of policy, are employees’ & officials’ hard drives erased, “wiped,”“scrubbed,” or reformatted before such hard drives are scrapped, abandoned, transferred, or decommissioned? 7.7.1 When are hard drives ever removed & stored when employee or official leaves or transfers computers? 7.7.2 If scrapped, overwritten, reformatted instead of stored, as a matter of policy, are the files, emails, or other data stored on such hard drives copied to the respective employee’s or official’s replacement drive, if any, or network? 7.7.3. If so, as a matter of firm policy, are such files, emails, or other data copied on a “bit-by-bit” basis? (imaged). Is white space retained? 8 Non-Company/Non-government Computers (BYOD) 8.1 Does policy or practice permit, prohibit, or otherwise address employees’ or officials’ use of computers not owned or controlled by the company to create, receive, store, or send work-related documents or communications? Including cell phones. 8.1.2. If so, what is/are that/those policy/ies? Practice/s? 8.2. Is there any technical impediment to employees or officials using computers not owned or controlled by the organization to create, receive, store, or send work-related documents or communications? 8.3 Is there any requirement that work-related communications or other data must be copied to government or (for other parties] company or organization’s networks? Describe those policies including scope & duration. =============================== CHECKLIST FOR RULE 26(f) MEET AND CONFER REGARDING ELECTRONICALLY STORED INFORMATION; United States District Court Northern District of California In cases where the discovery of electronically stored information (“ESI”) is likely to be a significant cost or burden, the Court encourages the parties to engage in on-going meet and confer discussions and use the following Checklist to guide those discussions. These discussions should be framed in the context of the specific claims and defenses involved. The usefulness of particular topics on the checklist, and the timing of discussion about these topics, may depend on the nature and complexity of the matter. I. Preservation ☐ The ranges of creation or receipt dates for any ESI to be preserved. ☐ The description of data from sources that are not reasonably accessible and that will not be reviewed for responsiveness or produced, but that will be preserved pursuant to Federal Rule of Civil Procedure 26(b)(2)(B). ☐ The description of data from sources that (a) the party believes could contain relevant information but (b) has determined, under the proportionality factors, should not be preserved. ☐ Whether or not to continue any interdiction of any document destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically-recorded material. □ The names and/or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager,” etc.). ☐ The number of custodians for whom ESI will be preserved. ☐ The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases. ☐ Any disputes related to scope or manner of preservation. II. Liaison ☐ The identity of each party’s e-discovery liaison. III. Informal Discovery About Location and Types of Systems ☐ Identification of systems from which discovery will be prioritized (e.g., email, finance, HR systems). ☐ Description of systems in which potentially discoverable information is stored. ☐ Location of systems in which potentially discoverable information is stored. ☐ How potentially discoverable information is stored. ☐ How discoverable information can be collected from systems and media in which it is stored. IV. Proportionality and Costs ☐ The amount and nature of the claims being made by either party. ☐ The nature and scope of burdens associated with the proposed preservation and discovery of ESI. ☐ The likely benefit of the proposed discovery. ☐ Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic discovery vendor or a shared document repository, or other cost-saving measures. ☐ Limits on the scope of preservation or other cost-saving measures. ☐ Whether there is potentially discoverable ESI that will not be preserved consistent with this Court’s Guideline 1.03 (Discovery Proportionality). V. Search ☐ The search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery. ☐ The quality control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI. VI. Phasing ☐ Whether it is appropriate to conduct discovery of ESI in phases. ☐ Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Fed. R. Civ. P. 34 document discovery. ☐ Sources of ESI less likely to contain discoverable information from which discovery will bepostponed or avoided. ☐ Custodians (by name or role) most likely to have discoverable information and whose ESI will be included in the first phases of document discovery. ☐ Custodians (by name or role) less likely to have discoverable information and from whom discovery of ESI will be postponed or avoided. ☐ The time period during which discoverable information was most likely to have been created or received. VII. Production ☐ The formats in which structured ESI (database, collaboration sites, etc.) will be produced. ☐ The formats in which unstructured ESI (email, presentations, word processing, etc.) will be produced. ☐ The extent, if any, to which metadata will be produced and the fields of metadata to be produced. ☐ The production format(s) that ensure(s) that any inherent searchablility of ESI is not degraded when produced. VIII. Privilege ☐ How any production of privileged or work product protected information will be handled. ☐ Whether the parties can agree upon alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification. ☐ Whether the parties will enter into a Fed. R. Evid. 502(d) Stipulation and Order that addresses inadvertent or agreed production. 2. Document Dump Tough-Nuggies decision Williams v. Sprint/United Mgmt. Co., CIVA03-2200-JWL-DJW, 2006 WL 3691604 (D. Kan. Dec. 12, 2006) (Waxse, M.J.). Deny motion for sanctions on alleged “data dump” because requested party had requested all documents related to topic & that’s what producing party gave them. The requesting party should have asked for only one copy of each document. 3. The problem of Dark Data (not to be confused with either ephemeral data or metadata DARK DATA: Unindexed backups, left over undisposed legal holds, Disks, flashdrives, old hard drives, unknown cloud copies (either enterprixe or individual employees) Ephemeral: Digital printer & fax memory images, voice messages, text messages, RAM (but one court in Calif ordered preserved) Metadata: Data about data 1. Date, author, size, modifications & 2. Revisions/additions, deletions, comments. 4. Sedona Conference work in progress on "privacy in the courtroom" & related case of Sullo & Bobbitt v. A bunch if Texas local governments (3 ND Tex decisions & appeal now pending in 5th Cir). Sullo & Bobbitt, PLLC v. Abbott, No. 3:11–CV–1926–D, 2012 WL 2796794, (N.D. Tex. July 10, 2012), appeal pending Sullo & Bobbitt, PLLC v. Abbott, No. 3:11–CV–1926–D, 2013 WL 3834403 (N.D. Tex. July 25, 2013), appeal pending Standard: Logic & Experience nationwide – same as right to attend hearings. Nat’l Center for State Courts – No muni court has immediate access to citations Pete Haskel Dallas Ass't City Att'y 214-670-3038 Voice Direct 214-670-0622 FAX peter.haskel@dallascityhall.com <mailto:peter.haskel@dallascityhall.com> CONFIDENTIALITY NOTICE: This communication is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this information, you are notified that any use, dissemination, distribution, or copying of the communication is strictly prohibited, and requested to reply hereto or notify sender by other immediate means of the misdelivery. _______________________________________________ Federal mailing list Federal@lists.imla.org http://lists.imla.org/mailman/listinfo/federal_lists.imla.org