Edwards ESI, LLC

Edwards ESI, LLC 2025-11-11T09:57:04Z https://www.tdemadison.com/feed/atom/ WordPress /wp-content/uploads/sites/1204448/2024/06/cropped-favicon-edwards-x-1-32x32.jpg On Behalf of Edwards Law Group LLC <![CDATA[Ethics and Drug Treatment]]> https://www.tdemadison.com/?p=46330 2024-07-16T15:43:04Z 2021-08-08T09:16:17Z

Does the facility “take all comers” and rarely refer clients to outside facilities?

Facilities, or therapists, that fail to acknowledge the limitations of their own practice often mislead prospective clients about their professional qualifications. By applying a “one size fits all” mentality to prospective admissions, these facilities are more likely to assign blame to clients who resist the moral tenor of mandatory participation in twelve step therapy. This dynamic is especially dangerous when the facility fails to diagnose underlying psychiatric disorders that are beyond the reach of traditional twelve step therapy.

Does the facility impose consequences against clients who resist therapy?

Rigid, twelve step facilities promote compliance over the honest expression of thought and feelings. Clients who resist are subject to group pressure and, often punishment. Often, those clients who fail to respond are blamed for their refusal to “surrender,” labeled as “toxic” and ostracized from the group.

Does the facility hire graduates of its own program as therapists or administrative aides?This practice, which raises concerns regarding dual relationships, reinforces the dominance of the group’s philosophy by closing the system off from outside sustenance. In turn, expressions of individuality among clients is met with resistance by employees who share a common vision of recovery. Facilities that employ a disproportionate number of AA members should be inventoried carefully to insure that personal bias does not override the client’s best interests.
Are financial relationships manipulated so as to discourage autonomy?

Many residential facilities require prepayment or otherwise bill for services that have not been delivered. Here, it is not uncommon for a client to held to a “contract,” signed on his first day at the facility, only to later learn that the facility will not return a portion, or all, of his money if he chooses to leave early. These practices prevent clients from exercising their right to refuse treatment without paying a tangible, financial price.

How is the client treated if he leaves the facility early?

In many cases, clients that leave a facility “against medical advice” are not permitted to contact remaining clients or, in some cases, their counselor. A halfway house in Northern Arizona “terminates” clients by giving them thirty minutes to leave or face arrest by the local police. These coercive practices place insurmountable pressure on the client, who is forced to choose between inappropriate therapy or potential homelessness. · Are non-licensed administrative staff allowed to participate in the client’s therapeutic process? In some facilities, there are no enforceable boundaries that prohibit administrators and non-clinical staff from intruding the clinical realm. Thus, many administrators and adjunct staff provide “treatment” that is derived solely from personal experience. By blurring the line between “twelve step work” and legitimate therapy, these individuals wield considerable influence in an area that they are not qualified to act. CONCLUSION Understandably, many addictions counselors feel a sense of urgency when dealing with a reluctant client. As with most serious mental disorders, addiction invites us to assume that the addicted client is incapable of making decisions for himself. This assumption, which places addicted clients on the same footing as legally incompetent persons, is insulting and clinically flawed. Once embraced, the counselor is tempted, and indeed permitted, to override the client’s thought process with his own therapeutic agenda. Once this assumption is discarded, as it should be, the client is invited to discard his mask of compliance, engage in authentic discourse, and explore legitimate recovery. In any event, coercion and manipulation is not therapy. It is, instead, a complete breakdown of the therapeutic process- one that reflects the counselor’s inability to reach the client through conventional, ethical means. Many counselors feel that autonomy is always intact because the client has the absolute right to leave the facility at any time. This is a fallacy. As noted above, most addicted clients enter treatment involuntarily. While the client is technically allowed to terminate treatment at any time, this decision can carry severe consequences, such as jail time, the loss of a job, or the loss of a professional license. This is particularly true when the counselor tells the client that early departure will result in inevitable relapse, or even death. It is thus incumbent on the facility, and the counselor, to extract themselves from policies that undermine the client’s qualified right to think and behave as an individual. In such facilities, the successful client will receive credit for his choices and, ultimately, his own individual vision of recovery. . See, CHARLES BUFE, ALCOHOLICS ANONYMOUS, CULT OR CURE? 7 (Sharpe Press, Tucson, Arizona, 1995)(“…coerced individuals constitute a majority of those undergoing treatment …”)(emphasis in original). . LECLAIR BISSELL & JAMES ROYCE, ETHICS FOR ADDICTIONS PROFESSIONALS, 24 (Hazelden Press, 1994). . PAUL ROMAN & TERRY BLUM, NATIONAL TREATMENT CENTER STUDY REPORT 10 (Institute for Behavioral Research, 1997)(noting that over 93% of all treatment centers rely heavily on the twelve steps of Alcoholics Anonymous). . Alcoholism has been characterized as a “disease that is characterized by abnormal alcohol-seeking behavior that leads to impaired control over drinking.” NATIONAL INSTITUTE ON ALCOHOL ABUSE AND ALCOHOLISM, Alcohol and Health: Eighth Special Report to the U.S. Congress on Alcohol and Health (1993). . Carole: I will forward you a complete citation for this proposition if you think it would be helpful. Just give me a call and I will go to the library and retrieve the source. . KIM BOLAND & GORDON LINDLOOM, Psychotherapy Cults: An Ethical Analysis, printed in 9 Cultic Studies Journal No. 2, 137, 141 (1992). Carole: The term “9 Cultic” is proper, legal citation format for this journal, indicating that this is Volume 9 of the “Cultic Studies Journal” (that’s the name of the Journal- it’s not an abbreviation). ]]> On Behalf of Edwards Law Group LLC <![CDATA[Spoliation of Electronic Evidence]]> https://www.tdemadison.com/?p=46327 2024-07-16T15:36:57Z 2020-12-30T10:16:17Z

Spoliation of Electronic Evidence]]> On Behalf of Edwards Law Group LLC <![CDATA[Developing A Strong E-Discovery Plan]]> https://www.tdemadison.com/?p=46326 2024-07-16T15:38:44Z 2020-12-15T10:16:17Z

Introduction.

Almost ten years ago, litigation attorneys sounded the alarm by predicting that litigation involving the disclosure of electronically stored information would engulf the discovery process, especially in complex cases. Many Plaintiffs’ attorneys view electronic discovery as an opportunity to leverage settlement, and the lawsuit itself, by seeking broad fields of electronic data at considerable cost to the Defense. In response to these requests, Defense attorneys emphasize limited alternatives that often fail to produce meaningful, responsive information. As this cat and mouse game unfolded, parties often overlook the need for a coordinated electronic discovery plan that anticipates and solves problems in the e-discovery process. This is a missed opportunity in which litigants failed to address critical issues, such as the early identification and preservation of potentially relevant electronic data and the authentication and admissibility of that data at trial. Even today, many competent practitioners profess ignorance about these questions and openly admit that e-discovery is not a central consideration in most of their discovery plans. This Article will also propose a template for an electronic discovery plan that is suitable for Plaintiff and Defense lawyers. By necessity, this Article emphasizes the need for early cooperation as a necessary component of an efficient electronic discovery plan, grounded in the meet and confer requirements in Wisconsin’s Rules of Civil Procedure. From there, this Article will provide the template for an Electronic Discovery Plan for Plaintiffs and Defendants that insures compliance with existing discovery obligations and provides guidance for the discovery electronic data in the ever-changing “digital age.”

Introduction to ESI.

In general terms, electronically stored information is nothing new. Prior to their recent amendment, the Federal Rules of Civil Procedure contemplated that electronic data stored in a fixed tangible form was on equal footing with paper “documents.” While the recent amendments confirm that electronic data is a “document” governed by the rules of discovery, this has never been an issue.[i] Instead, the question is how counsel adjusts her strategy to the unique technological features of electronically stored information. To answer this question, it is necessary to examine the life-cycle of electronic data during the litigation process:

Identification of Data ——à
Preservation of Data ——-à
Discovery of Data ———-à
Processing Data ————-à
Form of Production ———à
Privilege and Clawback Agreements ——–à
Authenticating Data ————à
Admitting Data into Evidence ————à

These obligations are similar, if not identical, to the process that applies in the discovery of traditional, paper documents. The difference rests in the complexity and expense involved in processing the information. This Article will focus on a suggested plan that recognizes the unique technology that accompanies the discovery of electronic data. In all cases, this process starts with the obligation to preserve electronically stored information through a properly drawn litigation hold. III. The Identification and Preservation of Data: Spoliation and the Litigation Hold. For years, Courts have recognized that a litigant has an affirmative duty to preserve potentially relevant information in anticipation of litigation or face sanctions for “spoliation” of evidence.[ii] This obligation applies equally to electronically stored information, which can be more difficult to identify and preserve due to the technology involved. While Federal has not weighed in on this specific issue, the most reliable formulation of the duty to preserve is set forth below:

First, when litigation is reasonably anticipated or at the commencement of litigation, counsel must issue a “litigation hold” which should be periodically re-issued to keep it fresh in the minds of employees and to make new employees aware of it.

Second, counsel should identify the persons who are “likely to have relevant information” and communicate directly with these “key players” to ensure that they are aware of their duty to preserve relevant information. These “key players” are the persons identified in a party’s initial disclosures and any supplementation thereof.

Third, the court found that counsel have a duty to instruct all employees of their client to produce electronic copies of their relevant active files and to identify, segregate and safely store relevant backup tapes. The court went so far as to suggest that, in an appropriate case, counsel take physical custody of relevant backup tapes to safeguard the information.[iii]

Preserving information relevant to a pending lawsuit is important for many reasons. If a party fails to preserve evidence after litigation is reasonably anticipated, this failure can lead to serious punitive consequences for evidence “spoliation.”[iv] These consequences can include monetary sanctions, awards of attorney’s fees and costs for the price of investigating and litigating document destruction, and litigation consequences such as default judgments, dismissal of certain claims or defenses, or court instructions allowing a jury to draw adverse inferences about what destroyed evidence would have shown.[v] Preservation obligations for electronic data are no different than those that apply to traditional, paper documents, as the duty to avoid spoliation is well settled in the law. The only difference is the procedures that must be followed due to the unique, transitory nature of electronically stored information, which can theoretically be destroyed with a push of a button. This requires counsel to institute a litigation hold that identifies and preserves all relevant electronic data when litigation is reasonably foreseeable.[vi] This raises questions regarding the timing of the obligation, its time frame and scope. In many cases, the duty to preserve is triggered, but the time frame of the preservation obligation will go back many years and require the preservation of different sources of electronic data.[vii] Defense counsel, in particular, must be cognizant of this obligation and its nuances. Compliance with preservation obligations is a two-way street. Plaintiffs often forget that they also maintain electronic records that could be relevant to the dispute. At the beginning of the case, Plaintiff’s counsel must execute a litigation hold that identifies and preserves electronic data that is relevant to the claims and defenses of the case. The litigation hold should be specifically crafted to the facts of the case by defining the case, identifying relevant information and explaining preservation obligations in some detail. Counsel should take immediate steps to quarantine these records once litigation is foreseeable. Once the preservation obligation is satisfied for both Plaintiff and the Defense, each party should prepare and discuss a preservation agreement that is tied to a number of basic objectives including, but not limited to: (a) early identification of most likely sources of electronically stored information; (b) the continued preservation of electronically stored information pursuant to a litigation hold that is properly executed and carefully documented. This preservation plan can be negotiated before or during the meet and confer session, but it should be one of the first steps in the process if there is doubt about the preservation of electronic discovery.

The Meet And Confer Process.

The meet and confer process is vital to a successful electronic discovery plan.[viii] A productive ESI discovery plan requires counsel to set aside the role of “zealous advocate” in favor of an exchange of information that accelerates the discovery process. It is a fool’s errand to bypass the opportunity presented by a robust meet and confer session in a case involving substantial electronic discovery. This is an opportunity to learn about your opponent’s data systems, preservation efforts and the existence of litigation hold and document retention policies that might shape the e-discovery process. If done properly, you have nothing to lose by participating in a meet and confer session in good faith. The key is early planning and preparation.[ix]

Topics for the Meet and Confer.

The topics for a meet and confer session should not be confined to those set forth in the FederalRules of Civil Procedure. During the meet and confer conference, counsel should be prepared to address all of the issues referenced below:

Processing and Form of Production.

Processing Data.

Document Review Protocol. Manual or digital review for relevance, privilege and confidentiality.

Search terms: Agreed upon process: Search terms? Custodians? Time-frames? Sources: Databases? Unstructured data sources? E-mail servers? Legacy data? Back up data?

Form of Production: most common forms of production (pdf., native format, TIFF images), including disclosure of meta-data, deduplication obligations, production of structured data, production of inaccessible data, and bates stamping protocol;

Negotiated Protections.

Disclosure of document retention plans and policies.

2. The execution of documents that may be necessary to protect privileged information that is inadvertently disclosed during the litigation, including clawback agreements and privilege logs;

3. The use of a Protective Order to protect confidential information.

Efficient Use of Discovery Tools.

The use of discovery tools to avoid cost shifting or resolve cost shifting issues;

The implementation of a discovery plan that authenticates electronically stored information, through proof or stipulation, and identifies those documents that the trial court must authenticate;

Preparation for the Meet and Confer.

In many cases, the results of the parties’ meet and confer could be scrutinized by the Court. Here, a discovery plan is likely to be more persuasive if counsel can demonstrate that it is supported by actual facts regarding the information requested and the actual costs involved.[x] Conclusory assertions that requested discovery is too burdensome are unlikely to prevail absent underlying facts. To the extent possible, counsel should identify key custodians and consider the use of search terms to alleviate cost while maximizing the potential response to Plaintiff’s search. Under all circumstances, preparation and good faith will position counsel to obtain as much discoverable information as possible. Defense counsel must be prepared to reveal his client’s preservation efforts at the meet and confer session. In addition, Defense counsel should be prepared to identify legacy or back up data that is inaccessible to set the stage for cost shifting arguments as the case proceeds. If possible, Defense counsel should have information about the cost and burden of searching these records, along with any other difficulties presented by the company’s computer system for search purposes. If critical data is located in one of these repositories, the parties should attempt to negotiate a resolution of this dispute or agree to bring the matter to the Court’s attention. Unlike the Plaintiff’s counsel, who should be prepared to demonstrate an efficient plan for obtaining ESI that will not cause an undue burden, it will be common for the Defense to explain expensive limitations in the Plaintiff’s electronic discovery plan to set the stage for further limits on discovery. In preparing a proposal for discovery, Defense Counsel should consider:[xi]

The volume of data reasonable to review in the time frame allotted by the Court and your client’s financial restrictions;
The number of (and sources) from whom your client may need to collect data if the Plaintiff issues broad discovery requests;
Arguments for limiting custodian list;
Methods for phasing discovery;
Methods for searching data, including date restrictions, search terms and other restrictions such as privilege;
The timing for exchange of privilege logs;

In many cases, the volume of data in the case may be appropriately limited with keyword or concept searches or a computer-assisted review tool. Although often an effective means of identifying responsive documents and lessening the overall burden of the review, courts have recognized that the use of search terms can lead to under-inclusive or over-inclusive results and must be employed cautiously.[xii] Courts have also begun to investigate and even endorse use of analytics technology to identify potentially relevant information – i.e., “predictive” or “automated” coding.[xiii] Regardless of the tools used, it is important to interview custodians, reduce the number of custodians collected, and determine which core custodians’ data really must be collected and reviewed – whether it be by a computer or attorneys. If the collection is large and the discovery requests broad, any method used will be expensive, and the parties will need to focus on limiting the core data set collected. Failure to obtain agreement with opposing counsel on the method by which data may be culled or, absent agreement, the failure to take reasonable steps to collect and produce core relevant data can lead to sanctions.[xiv] The meet and confer process can be a lethal tool for a prepared lawyer with ESI experience. Sometimes, opposing counsel will appear unprepared for the meet and confer process or otherwise refuse to participate in a good faith exchange of information. Here, it is not uncommon for counsel to rely on assertions of privilege or conclusory allegations of undue burden in an effort to conceal their ignorance or avoid their meet and confer obligations. Under these circumstances, counsel should file an immediate motion with the Court compelling good faith participation in the meet and confer process– a process that will now unfold under the supervision of the Court.[xv] If used properly, opposing counsel’s failure to participate in good faith can raise an early inference of bad faith that requires Court intervention, all to the Defendant’s detriment.

Processing and Reviewing.

Before producing records, Plaintiff must process the data that he seeks to preserve pursuant to his client’s ongoing litigation hold obligation. The first step is locating the potentially responsive data and securing it for future use. Depending on the volume, the next step is to review the document to determine whether it is privileged or contains confidential information that is governed by the Protective Order. Once the privileged documents have been withheld and recorded on a privilege log, they should be set aside and preserved, as should the proprietary information that was produced and appropriately labeled pursuant to the Protective Order. Finally, counsel should conduct a relevance review to determine whether certain documents are non-responsive or irrelevant to the case. These documents should also be set aside, if necessary, for future use. The document process review can be much more onerous for Defense counsel, who often has access to more electronic data than the Plaintiff. Depending on the size of the organization, processing ESI for an organization or entity can be a daunting task. This is especially true at the early stages of the review process, where responsive documents are identified for production. Often, review tools are necessary because simply opening files one-by-one in their many different source applications is impractical, and may result in the destruction of metadata. In these cases, it is necessary to load the ESI into a platform that is searchable and to apply a review tool that can perform a variety of functions, including file extraction, removal of system files and de-duplication. After the relevant data set is culled from the original production set, search terms are applied and responsive documents are processed for final review in the agreed upon format. This process will require the assistance of IT personnel or a qualified vendor. Proper documentation can protect the inadvertent disclosure of privileged information in certain instances. Assume that Plaintiff’s counsel reviewed over 100,000 documents after filing a lawsuit against the disgruntled CEO. By mistake, counsel disclosed a document in which his client made very damaging statements that directly impacted the strength of her case. If the parties reach an agreement during their discovery plan that includes an order that protects against the waiver of privilege, it is possible to retrieve the document and preserve the privilege without further problem.[xvi] To do so, the party must immediately give notice to the opposing party, in writing, that the document was produced inadvertently after reasonable steps were taken to prevent its disclosure. At that time, Defense counsel must promptly return, sequester or destroy the document. Clawback provisions provide important protection against the waiver of the attorney client privilege that results from inadvertence due to the sheer volume of data involved. They also demonstrate how advance planning, at the meet and confer stage, can avoid significant problems that result from the volume of data that is often reviewed in complex e-discovery cases.

Form of Production.

Production is the next step in the ESI life cycle after the information has been preserved, collected and processed. The FederalRules of Civil Procedure provide a protocol for selecting the form of production, which begins at the meet and confer stage of the lawsuit. Notably, the requesting party is allowed to request the form or forms in which ESI should be produced (usually in a searchable format).[xvii] If the requesting party fails to request a form of production, or the responding party objects to the form requested, the responding party must state the form or forms it intends to use.[xviii] Absent exceptional circumstances, Plaintiff’s counsel should insist that the documents are produced in a searchable native format, with meta data intact, which is likely to include savings in cost and time compared to other formats which require conversion of the ESI images into load files. Questions regarding form of production should be addressed to a competent IT manager or third party vendor.

Cost-Shifting Issues.

One of the most litigated questions in cases involving electronic data is “who pays?” In many cases, Defense counsel will argue that the discovery request is impermissible because it is overly broad, unduly burdensome or expensive.[xix] In the ESI context, this is a short hand reference to “cost-shifting,” a concept which acknowledges that the cost of pursuing specifically identified electronic discovery far exceeds any benefit from the search. In Wisconsin, the relevant factors to assess in determining whether cost shifting is appropriate are as follows:

The specificity of the discovery requests;
The quantity of information available from other and more easily accessed sources;
The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
Predictions as to the importance in usefulness of the information;
The importance of the issues at stake in the litigation; and
The parties’ resources.[xx]

The effective use of discovery tools can avoid this debate. In cases with significant electronic discovery, it is no longer appropriate to serve blanket discovery requests for electronic discovery that seek every imaginable document on a particular issue. Targeted, specific discovery requests addressed at relevant documents material to the outcome of the litigation are much more defensible. In some cases, the focus of these requests can be refined after taking the deposition of your opponent’s IT representative or third party vendor. In e-discovery, it is no longer proper to search for a needle in an electronic haystack. The party seeking the information must specifically tailor his request to need, the likelihood of responsive information and the cost of production or be prepared to pay for what he is asking for. The party who fails to comply with these directives will often be stuck footing the bill.

Evidentiary Concerns.

Given the complexity of ESI, it is easy to forget that the main goal of electronic discovery is to identify, secure and submit admissible evidence for consideration by the fact-finder. Here, electronically stored information is different than traditional, documentary evidence in a number of important respects.[xxi] A well planned electronic discovery plan should take these differences into account. Assuming that confidential and privileged information has been addressed through prior agreement, counsel must be prepared to authenticate electronically stored information. This can be done through properly drafted Requests for Admissions pursuant to Rule 804.11 or witness testimony taken pursuant to a deposition. Absent such proof, it can be very difficult to authenticate electronically stored information without specific proof that the evidence is what it is being offered for. Unlike paper documents, which are fixed to a tangible medium of expression, electronically stored information reflects computer data that is routinely rearranged by the computer system in question, making it almost impossible to authenticate. To overcome this hurdle, it is necessary to provide evidence of systemic safeguards within the computer itself (password access, hash tags, encryption) that identify the document as being what it is offered to prove. Discovery should be focused on these key features of your opponent’s computer system when authentication is in doubt. Electronic discovery offers other evidentiary challenges. While authentication is the most difficult, questions of relevance, undue prejudice and hearsay routinely surface in the admissibility of electronically stored information. If necessary, a comprehensive e-discovery plan will anticipate these evidentiary arguments and lay the foundation for the admissibility of electronically stored information well before trial.

Conclusion.

As this Article demonstrates, the principles that govern the discovery of electronically stored information are the same as traditional non-computer evidence. The complexity of electronic data requires the parties to replace the adversarial approach to discovery with one of cooperation, transparency and common sense. This approach saves money for the parties, avoids unnecessary discovery disputes and focuses the parties and the court on legitimate, contested issues surrounding the discovery of electronically stored information. In all cases, these goals are advanced by a thoughtful discovery plan that flows from a thoughtful meet and confer process that is grounded in consensus and good faith. ****** [i] Rule 34(a), Fed. R. Civ. P. and Advisory Committee Notes. [ii] Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2007)(“Zubulake IV”). [iii] Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”); Edwards, Spoliation of Electronic Evidence, 2010 Wis. Lawyer 83, No. 11. [iv] Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). [v] See, e.g., Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. 2006)(imposing a default judgment on defendant after finding that defendant used “wiping” software to erase data); Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. 2008)(sanctioning defendant with adverse inference at trial); Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. 2007)(reducing the plaintiff’s burden of proof as spoliation sanction against defendant). [vi] See “Zubulake V” at 433. [vii] Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist. LEXIS 4546 at * 15. [viii] See Rule 26(b)(2)(c), Fed. R. Civ. P. [ix] Mancia v. Mayflower Textile Servs. Co., 2008 U.S. Dist. LEXIS 83470 at *13 (D. Md. 2008). [x] Helmert v. Butterball, LLC, 2010 U.S. Dist. LEXIS 28964 (E.D. Ark, 2004). [xi] Griset and Laws, Navigating a Case Through E-Discovery (McGuire Woods 2012). [xii] Victor Stanley, 250 F.R.D. at 256-57. [xiii] National Day Laborer Organizing Network v. U.S. Immigration and Customers Enforcement Agency, 2012 WL 2878130, at *12 (S.D.N.Y., July 13, 2012). [xiv] Jones, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill., May 25, 2010)(awarding monetary sanctions, imposing an adverse inference and requiring additional discovery). [xv] See e.g., Kleen Products LLC, et al., v. Packaging Corp. of America, 2012 U.S. Dist. LEXIS 139632 at *48 (N.D. Ill. 2012). [xvi] See Rule 502, Wis. R. Evid.; Rule 502, Fed. R. Evid. [xvii] Rule 34(b)(2)(E), Fed. R. Civ. P. [xviii] Id. [xix] See Rule 26(b)(2), Fed. R. Civ. P. [xx] See Rule 26(b)(1), Fed.R.Civ. P; Edwards, E-Discovery: Who Pays? 2012 Wis. Lawyer 85, No. 10. [xxi] See Edwards, Getting Through the Door: The Admissibility of Electronically Store Information, 2014 Wis. Lawyer 87, No. 1. ]]> On Behalf of Edwards Law Group LLC <![CDATA[Ethics and ESI]]> https://www.tdemadison.com/?p=46328 2024-06-13T09:40:10Z 2020-11-24T10:16:17Z

Introduction.

As previous chapters of this book have shown, “technology has irrevocably changed and continues to alter the practice of law in fundamental ways.”[i] As technology evolves, lawyers are confronted with new challenges pertaining to the preservation of data, the proper maintenance of privileged and confidential material and the sometimes daunting learning curve that accompanies new technological developments. These developments present ethical challenges that require a reexamination of the duty of competence and a more careful view of the litigator’s responsibility with respect to confidential information and metadata that is produced electronically. This chapter will briefly examine the parameters of the duty of competence in the e-discovery context and briefly outline the rules that delineate the proper and ethical management of confidential information.

The 2012 Amendments to the ABA Model Rules.

In August of 012, the ABA Commission on Ethics 20/20 (the “20/20 Commission”) recommended, and the ABA House of Delegates adopted, updates to the ABA Model Rules of Professional Responsibility “to reflect the realities of the digital age.”[ii] These amendment reflect the inevitable reality that lawyers cannot rely entirely on others to understand technology that is utilized in the e-discovery process. Instead, lawyers practicing in the digital age have an ethical obligation to understand those aspects of technology that are relevant to the matters they handle and which are designed to protect confidential information.[iii]

The Duty of Competence in the Digital Age.

The most significant change to the ABA Rules for the e-discovery attorney is found in the comments to Rule 1.1, pertaining to competence. While the Rule itself remains unchanged, the new version of Comment 8 states s follows” To maintain the requisite knowledge and skill a lawyer should keep abreast of changes to the law and its practice, including the benefits and risks associated with relevant technology, engaging in continuing study and education and comply with all continuing legal requirements to which a lawyer is subject.[iv] Comment 8 was made explicit because of the rapid pace of technological change and the benefits and risks of certain technology. Recognizing that an attorney has a “general ethical duty to remain competent in a digital aid, the 20/20 Commission explicitly acknowledged that electronic discovery fits within the broader of “relevant technology” contemplated by Rule 1.8:[v] Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations. … These developments highlight the importance of keeping abreast of change in relevant technology in order to ensure that clients receive competent and efficient legal services.[vi] While the comments to Rule 1.1 do not define the scope of “relevant technology” that falls under the purview of competence, counsel must, at minimum, understand the client’s information management systems, the tools used to preserve electronic data in advance of litigation, along with the software and hardware programs that are used to create, store, maintain, collect, process, review and process electronically stored information, including back up systems, search tools, predictive coding algorithms and, if necessary, forensic tools used to locate inaccessible, corrupt or lost data. Counsel must remain current on technologies that create and process data as well as related tools that are used to preserve, process, review, search and produce such data.[vii] While the duty of competence requires lawyers to have a “firm grasp” on these technologies, the 20/@0 Commission also acknowledged that some matters “may require the use of technology that is beyond the scope of the lawyer’s expertise,” thus requiring the assistance of non-lawyers with more proficiency with certain technologies.[viii] Accordingly, counsel can satisfy the duty of competence by taking diligent and reasonable steps to understand the technology while using outside consultants when the technology requires special expertise. The lawyer is not required to possess special training in these technologies to be considered competent.[ix]

The Duty of Confidentiality.

The most significant substantive amendment to the ABA Model Rules addresses the duty of confidentiality. Recognizing the differences between traditional lawyer client communications, which occurred by regular mail or facsimile, the drafters acknowledged that in contemporary communications, lawyers and clients routinely exchange computer information from many different sources that are sometimes accessible from many locations. This has raised “new concerns” about “data security and lawyers’ ethical obligations to protect client confidences.”[x] Rule 1.6 has now been amended to “make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure, unauthorized disclosure and unauthorized access, regardless of the medium used.”[xi] To underscore the importance of this obligation, Rule 1.6 has now been amended to include specific language requiing a lawyer to make “reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to information related to the representation of a client.”[xii] [i][i] ABA Commission on Ethics, Resolution 105A Report at 3 (August 2012). [ii] ABA Commission on Ethics, Resolution 105A Report at 3 (“20/20 Report: Introduction and Overview”) (August 2012). [iii] Kenney, The Evolving Ethics of E-Discovery: Raising the Bar for Counsel at 2 (Sidley Austin LLP 2013). [iv] ABA Model Rules of Prof’l Conduct R. 1.1, cmt. 8. [v] 20/20 Report: Introduction and Overview, n.4, at p. 8. [vi] Id. At p. 4. [vii] Kenney, The Evolving Ethics of E-Discovery: Raising the Bar for Counsel at 4 (Sidley Austin LLP 2013). [viii] 20/20 Report: Introduction and Overview, n.4, at p. 5 [ix] 20/20 Report: Introduction and Overview, n.4, at p. 4. [x] Id. at p. 8. [xi] Id. at p. 8. [xii] ABA Model Rules of Prof’l Conduct R. 1.6.]]> On Behalf of Edwards Law Group LLC <![CDATA[The Admissibility of Electronically Stored Evidence]]> https://www.tdemadison.com/?p=46333 2024-07-16T15:40:51Z 2020-11-20T10:16:17Z

On Behalf of Edwards Law Group LLC <![CDATA[Electronic Discovery Planning]]> https://www.tdemadison.com/?p=46325 2024-07-16T15:41:44Z 2020-11-17T10:16:17Z

Introduction.

Introduction to ESI.

Identification of Data ——à
Preservation of Data ——-à
Discovery of Data ———-à
Processing Data ————-à
Form of Production ———à
Privilege and Clawback Agreements ——–à
Authenticating Data ————à
Admitting Data into Evidence ————à

First, when litigation is reasonably anticipated or at the commencement of litigation, counsel must issue a “litigation hold” which should be periodically re-issued to keep it fresh in the minds of employees and to make new employees aware of it.

Second, counsel should identify the persons who are “likely to have relevant information” and communicate directly with these “key players” to ensure that they are aware of their duty to preserve relevant information. These “key players” are the persons identified in a party’s initial disclosures and any supplementation thereof.

Third, the court found that counsel have a duty to instruct all employees of their client to produce electronic copies of their relevant active files and to identify, segregate and safely store relevant backup tapes. The court went so far as to suggest that, in an appropriate case, counsel take physical custody of relevant backup tapes to safeguard the information.[iii]

The Meet And Confer Process.

Topics for the Meet and Confer.

Processing and Form of Production.

Processing Data.

Document Review Protocol. Manual or digital review for relevance, privilege and confidentiality.

Search terms: Agreed upon process: Search terms? Custodians? Time-frames? Sources: Databases? Unstructured data sources? E-mail servers? Legacy data? Back up data?

Form of Production: most common forms of production (pdf., native format, TIFF images), including disclosure of meta-data, deduplication obligations, production of structured data, production of inaccessible data, and bates stamping protocol;

Negotiated Protections.

Disclosure of document retention plans and policies.

2. The execution of documents that may be necessary to protect privileged information that is inadvertently disclosed during the litigation, including clawback agreements and privilege logs;

3. The use of a Protective Order to protect confidential information.

Efficient Use of Discovery Tools.

The use of discovery tools to avoid cost shifting or resolve cost shifting issues;

The implementation of a discovery plan that authenticates electronically stored information, through proof or stipulation, and identifies those documents that the trial court must authenticate;

Preparation for the Meet and Confer.

The volume of data reasonable to review in the time frame allotted by the Court and your client’s financial restrictions;
The number of (and sources) from whom your client may need to collect data if the Plaintiff issues broad discovery requests;
Arguments for limiting custodian list;
Methods for phasing discovery;
Methods for searching data, including date restrictions, search terms and other restrictions such as privilege;
The timing for exchange of privilege logs;

Processing and Reviewing.

Form of Production.

Cost-Shifting Issues.

The specificity of the discovery requests;
The quantity of information available from other and more easily accessed sources;
The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
Predictions as to the importance in usefulness of the information;
The importance of the issues at stake in the litigation; and
The parties’ resources.[xx]

Evidentiary Concerns.

Conclusion.

As this Article demonstrates, the principles that govern the discovery of electronically stored information are the same as traditional non-computer evidence. The complexity of electronic data requires the parties to replace the adversarial approach to discovery with one of cooperation, transparency and common sense. This approach saves money for the parties, avoids unnecessary discovery disputes and focuses the parties and the court on legitimate, contested issues surrounding the discovery of electronically stored information. In all cases, these goals are advanced by a thoughtful discovery plan that flows from a thoughtful meet and confer process that is grounded in consensus and good faith. ****** [i] Rule 34(a), Fed. R. Civ. P. and Advisory Committee Notes. [ii] Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2007)(“Zubulake IV”). [iii] Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”); Edwards, Spoliation of Electronic Evidence, 2010 Wis. Lawyer 83, No. 11. [iv] Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). [v] See, e.g., Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. 2006)(imposing a default judgment on defendant after finding that defendant used “wiping” software to erase data); Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. 2008)(sanctioning defendant with adverse inference at trial); Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. 2007)(reducing the plaintiff’s burden of proof as spoliation sanction against defendant). [vi] See “Zubulake V” at 433. [vii] Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 U.S. Dist. LEXIS 4546 at * 15. [viii] See Rule 26(b)(2)(c), Fed. R. Civ. P. [ix] Mancia v. Mayflower Textile Servs. Co., 2008 U.S. Dist. LEXIS 83470 at *13 (D. Md. 2008). [x] Helmert v. Butterball, LLC, 2010 U.S. Dist. LEXIS 28964 (E.D. Ark, 2004). [xi] Griset and Laws, Navigating a Case Through E-Discovery (McGuire Woods 2012). [xii] Victor Stanley, 250 F.R.D. at 256-57. [xiii] National Day Laborer Organizing Network v. U.S. Immigration and Customers Enforcement Agency, 2012 WL 2878130, at *12 (S.D.N.Y., July 13, 2012). [xiv] Jones, 2010 U.S. Dist. LEXIS 51312 (N.D. Ill., May 25, 2010)(awarding monetary sanctions, imposing an adverse inference and requiring additional discovery). [xv] See e.g., Kleen Products LLC, et al., v. Packaging Corp. of America, 2012 U.S. Dist. LEXIS 139632 at *48 (N.D. Ill. 2012). [xvi] See Rule 502, Wis. R. Evid.; Rule 502, Fed. R. Evid. [xvii] Rule 34(b)(2)(E), Fed. R. Civ. P. [xviii] Id. [xix] See Rule 26(b)(2), Fed. R. Civ. P. [xx] See Rule 26(b)(1), Fed.R.Civ. P; Edwards, E-Discovery: Who Pays? 2012 Wis. Lawyer 85, No. 10. [xxi] See Edwards, Getting Through the Door: The Admissibility of Electronically Store Information, 2014 Wis. Lawyer 87, No. 1. ]]> On Behalf of Edwards Law Group LLC <![CDATA[Addiction and Attorneys]]> https://www.tdemadison.com/?p=46331 2024-07-16T15:44:08Z 2020-11-17T10:16:17Z

Aug. 2007 – Addiction and Attorneys]]> On Behalf of Edwards Law Group LLC <![CDATA[Overview of the FMLA]]> https://www.tdemadison.com/?p=46329 2024-07-16T15:46:34Z 2020-11-16T10:16:17Z

On Behalf of Edwards Law Group LLC <![CDATA[ESI Litigation Hold Procedures]]> https://www.tdemadison.com/?p=46332 2024-07-16T15:44:53Z 2020-11-12T10:16:17Z

On Behalf of Edwards Law Group LLC <![CDATA[Introduction to ESI Part I]]> https://www.tdemadison.com/?p=46324 2024-06-13T09:40:22Z 2020-10-31T09:16:14Z

[i] As a result of these developments, almost all documentary evidence that is relevant to the outcome of a lawsuit is generated by computer technology. emedia, cloud storage and other internet technology which places some information in plain view for the world to see. The law continues to adjust to these technologies, changing the way lawyers approach issues surrounding the preservation, production and admissibility of electronically stored information. The explosion in computer generated information directly impacts discovery practice, trial strategy and our assumptions about litigation. This is because computer generated data has many unique characteristics that are not always taken into consideration in traditional approaches to discovery and trial practice. Unlike a banker’s box full of documents that are static, readily identifiable and usually kept in one location, electronically stored information can be voluminous, dispersed within many specific locations and, in most cases, accessible and open to human intervention. This central feature of electronically stored data- “untestability”- requires special emphasis from the preservation stage through the production stage, raising direct questions regarding authenticity and admissibility from very early in the lawsuit. The first step in developing an ESI-based a discovery strategy requires a full appreciation of how electronic data is much different than its copy, paper counterpart. As a starting point, electronically stored documents often reside in computer systems that are not secured or protected. Unlike a paper document, which is usually easily identified by reference to a signature or other unique characteristic, it can be very difficult to show that electronically stored information is truly authentic. This is because multiple users often have access to the document over a span of time, making it very difficult to determine whether the information within the document is being produced in its “original” state. Consequently, ESI is often difficult to authenticate without an unbroken chain of preservation or sufficient proof of “system integrity” that supports the proponent’s representation of authenticity. This places a significant burden on the proponent of the admissibility of electronic data- one that can be difficult to sustain. The shift to electronic data has critical implications for the litigator, his strategy and the costs incurred in prosecuting or defending a lawsuit. Today, people do not create documents when they use a computer. The “documents” are created by a computer that stores and processes information that is transferred into a usable medium, such as a writing. The focus for the lawyer is not the document but rather, the information itself as it existed in its natural or original state and, then, at a specific point in time. This can change behind the scenes, sometimes automatically, even without a writing. There are other features of ESI that must be taken into account when preparing an ESI discovery plan. For example, electronic data is often stored in different formats in different media by different authors and contribution. Given the volume of data that is often involved, cooperation is essential to manage these distinctions in a meaningful way. When litigation is foreseeable, counsel and her client must take specific, concrete steps to preserve electronic data and maintain its integrity until the matter is concluded. Following that, counsel must navigate the meet and confer process with opposing counsel to secure agreements regarding the form of production and the preservation of privileged or confidential information. Protocols should be established to ensure that information is reviewed and processed in a reliable, defensible fashion. Not surprisingly, the questions of cost and efficiency surfaced immediately as a central issue in many cases involving complex or voluminous electronic data. In many cases, costs associated primarily with the review process soared well beyond the value and significance of the litigation that prompted it. Litigants and courts naturally wrestled with a difficult cost/benefit calculus, forcing renewed emphasis on the burdens associated with discovery that is not narrowly focused or targeted on the discovery of necessary, admissible evidence. This debate continues. Today, counsel must be particularly sensitive to questions concerning proportionality, a critical precept of discovery law that ultimately determines who must pay for the review and production of data through a “cost-shifting” analysis. Finally, counsel must consider questions regarding the admissibility of electronic data from the earliest stages of the lawsuit, both defensively and proactively, with an eye towards authentication and other traditional safeguards of evidence law, including privilege. Cooperation between the parties and active judicial involvement is necessary for this process to unfold in a meaningful way. They e-discovery process can be broken down into interlocking pieces that are is designed to insure the integrity of documents that are admitted at trial in an efficient, proportional fashion. To accomplish this task, it is first necessary to define ESI and to outline the key differences between electronic data and paper documents, which often define the process in critical ways. This topic is next.. [i] In re Bristol-Myers SQUIBBS Securities Litigation, 205 F.R.D. 437, 440 n.2 (D.N.J. 2002).]]>