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HOW ELECTRONIC INFO IS STORE & RETRIEVED

A. Types of ESI
Rule 34(a)(1)(A) pg. 30 -> Defines ESI
o Also pg. 138 (expanded definition) & pg. 174 (chart)
ESI discovery plan -> identify the potential types of data that may yield responsive info
2 Types
1. Data created by individual custodians using local or enterprise applications; and
Data created by an individual when using application program on computer or through the use
of personal digital devices
Usually under the direct control of the custodian i.e. content, names it, determines how long the
data will be saved
2. Data created by individual custodians using an enterprise application and/or data which are
automatically created or captured by an enterprise application.
Any program that is designed to perform a specific function directly for the custodian
Backup tapes
o 3 reasons
1. Protects the org from losing valuable data in case of a disaster or if the computer system
failure results in data loss
2. Can be used to restore specific data files that have been accidentally deleted, modified, or
corrupted
3. Used as a generic form of long-term data archiving
o Usually held in a central location
o Seldom the primary source of relevant ESI in discovery
May be considered not reasonably accessible under Rule 26(b)(2)(B) & presumptively
outside the scope of discovery
A party need not provide discovery of ESI from sources that the party identifies as
not reasonably accessible b/c of undue burden or cost.
Parties can show good cause if the data no longer exists on in the active sources
Doesnt absolve a party from CL duty to take reasonable steps to identify & preserve
sources of potentially relevant ESI for the duration of litigation even if they are not
specifically requested in discovery.
Note: necessary to have a thorough understanding of the clients backup ESI
o Full backup is a backup of every file on the targeted computer system whether or not that file has
changed since the previous backup
o DTP does not apply to backup tapes that are used for disaster recovery Zubulake
o Per Prof -> you dont know if backup tapes contain unique info so preserve all relevant
backup tapes.
o Note: Backup tapes that are routinely used for info retrieval = reasonably accessible
B. Forensic disk images -> reconstruction of computer info after deletion occurred
Mirror image of the hard drive
Must show extreme BF -> presumption that a non-partys hard drive should not be mirror imaged
Per Prof: do a forensic disk image as soon as you get the litigation hold. You do not have to produce these,
but if there is ever a question that arises that a document should exist you can go back to that custodian &
you have a mirror image hard drive. This exact copy should be done on the same day of notice of lawsuit.
Consider:
o Was unique, important data deleted?
o Is it likely that the deleted data can be recovered?
o Is deletion suspected?
o Is this process a traditional step in this type of situation? Ex. trade secrets

PRESERVATION OF ESI
A. Records Retention Policy
Set of guidelines/rules governing storage & destruction of documents or ESI

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o Typically defines the different types of records kept
o How these records are to be stored
o Provides schedules defining specific time periods for retention of certain records
Arthur Andersen LLP v. US -> ok to have a policy that requires the destruction of documents as long as the
destruction does not occur when the legal DTP has arisen w/ respect to the documents to be destroyed
under the policy.
o Where urges to comply w/ the policys destruction requirements occurs after the DTP attaches,
compliance w/ the policy not only fails to act as a shield, but provides basis for spoliation claim.
Rule 37(e) -> certain sanctions will not apply under ordinary circumstances where info is routinely
destroyed before a DTP has arisen.
o Safe harbor depends on the ability to show some routine in the retention & destruction of records
o For the records retention policy to act as a shield, policy must have been implemented consistently.
Only have to stop destroying evidence for key custodians
Remember: s duty to suspend regular destruction under records retention policies once they plan to file
suit.
Consider:
o Was DRP conceived in the context of a litigation strategy?
o Was the DRP selective w/ which documents will be destroyed? (Has to be uniformly applicable)
B. DTP (CL dutynot rule based)
Obligation to preserve arises when a party has notice that the evidence is relevant to litigation or when a
party reasonably should have known that the evidence may be relevant to future litigation.
Zubulake pg. 115 -> DTP :
1. What it knows, or reasonably should know, is relevant in the action,
2. Is reasonably calculated to lead to the discovery of admissible evidence,
3. Is reasonably likely to be requested during discovery, and/or
4. Is the subject of a pending discovery request.
Once a party reasonably anticipates litigation, it must suspend its routine DRP/destruction policy and put in
place a litigation hold to ensure the preservation of relevant documents.
o Party cannot continue a routine procedure that ensures that potentially relevant & readily available
info is no longer reasonably accessible under Rule 26(b)(2)(B).
C. Implementing the DTP
Zubulake v. UBS Warburg LLC -> Counsels obligation to ensure that relevant info is preserved by:
o Giving clear instructions to the client to preserve such info
o Ensuring that the client heeds those instructions, and
o Monitoring the clients compliance w/ those instructions.
o Rationale: Goal is to ensure that all sources of relevant info are identified, carefully preserved for
future review, & that relevant, non-privileged materials are eventually produced.
To identify all relevant info, counsel must identify how the client creates & stores its records, which
requires a meeting w/ IT and all key players to determine the sources on which potentially relevant
records are stored.
o From here, counsel can construct & monitor the litigation hold.
Rule 26(e) -> requires a party to supplement its discovery responses whenever it learns that in some
material respect the disclosure or response is incomplete or incorrect.
o As such, counsel has a continuing duty to ensure that relevant info is preserved, reviewed, &
eventually produced.
o Consider:
Has litigation hold been periodically re-issued?
Communication directly w/ those key players who are the most likely to have knowledge and info relevant
to the issues in the case to ensure that those employees are aware of their DTP and are preserving the info
in a useful manner.
o On-going responsibility to make sure party has provided all available info that is responsive to
discovery requests
o Adequately monitor the litigation hold.

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Ensure that all relevant info is preserved.
o The search for data, even if accessible, must be justified under the relevancy standard Rule 26(b)(1).
o Conduct a reasonable search for responsive documents to satisfy requirement under Rule 26(g)(2).
o Note: if backup tapes contain unique info, they should be segregated for safekeeping.
Non-parties
o Unless DTP arises from a K or other special relationship, they generally do not have an obligation to
preserve relevant data even when they anticipate litigation in which data is needed.
o Rule 45 -> allows parties to serve subpoenas on non-parties.
However, it does not require them to produce ESI if it is not reasonably accessible, unless the
issuing party can show good cause.
Rule 45(c)(1) -> states that a party or attorney responsible for issuing & serving a subpoena
must take reasonable steps to avoid imposing undue burden or expense on a person subject
to the subpoena.
Ex. subpoena requesting all emails from a non-party includes private emails = UB
o Even if you do not own the evidence, you still have a duty to notify the other side of their
ability to access the evidence before it is changed, altered or destroyed.
o Website hosts must preserve data
What if the privacy policy states that it promises not to collect or store personal info about
its userscan they be sanctioned for failing to preserve such info?
D. Trigger Date
Rule 37 note -> A preservation obligation may arise from CL, statutes, regulations, or court orders.
DTP arises when a party knows, or reasonably should know, that the evidence is relevant to pending or
future litigation.
o Anticipated litigation must be something more than a mere possibility or general discontenti.e.
must be probable.
o Unequivocal notice of intent to file a claim, even if the claim has not already been filed = DTP
o Note: Hynix Semiconductor Inc. v. Rambus, Inc. -> s DTP was not triggered when it contemplated
litigation against copyright infringers only if negotiations failed & where the litigation depended
upon other contingencies. Litigation became probable when interviewed litigation counsel.
When parties indicate a preference for negotiation, even though litigation is a possible
outcome = DTP may not yet be triggered
o Contrast Zubulake v. UBS Warburg, LLC -> employment discrimination case. Court held that DTP
triggered when nearly all employees associated w/ recognized possibility that she might sue.
Possibility of litigation may be sufficient to trigger the duty.
o Cache La Poudre Feeds LLC v. Land OLakes, Inc. -> s DTP evidence was not triggered by a pre-filing
communication that did not threaten litigation, suggested initial interest in avoiding litigation, and
did not demand preservation of relevant materials.
Court stated that prudent counsel would be wise to ensure that a demand letter addresses
preservation obligations, which can impose the DTP if drafted correctly.
i.e. Indication of intent to sue may be sufficient to trigger DTP, but correspondence that
merely presents a basis for the dispute may be inadequate.
A partys DTP evidence in advance of litigation must be predicated on something more than
an equivocal statement of discontent, particularly when that discontent does not crystalize
into litigation for nearly 2 years. Any other conclusion would confront a putative litigant w/
intractable dilemma: either preserve voluminous records for a indefinite period at
potentially great expense or continue routine document management practices and risk a
spoliation claim at some point in the future. pg. 182
Note: In Rambus, argued that their intent to file litigation was always contingent. This is not the test
test is foreseeability. If the contingencies themselves are foreseeable as likely to occur, then the DTP triggers.
Company officials, in-house & outside counsel should quickly have a claims and defenses meeting
o **Sedona Conference Jumpstart Outline pg. 284-290**
o First, issue a high-level general hold notice to all employees, w/ more specific instructions to follow

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o Litigation hold notice must be issued in writing to all persons who are custodians of data locations
where data may lie
DTP all paper & EDs including duplicates must be preserved at all storage locations. Failure
to do so may result in legal sanctions.
Counsel should require a signed certification by the custodians that the litigation hold
notice has been received, understood & implemented.
o Determine the claims, defenses & key issues in the case as far as they know
o Determine the time period at issue
o Determine where relevant info resides
1
st
identify key players (current & former) who generate, receive, or otherwise access
potentially relevant info
Computer hardware, databases & applications used; where data is saved
Attorney has to oversee the search
Inadequate is a breach of DTP = GN
o Get any records management depts. involved b/c they will know who is likely to have relevant info
o Get IT involved so they can begin to locate and secure relevant ESI
If there is a server, this should be searched as well for relevant info
o Refer to the companys DRP/destruction policy if they have one as this will help to determine
where certain kinds of info are located & whether that info is no longer available
o Counsel should schedule an interview w/ each custodian to review their data and how it must be
preserved.
Find out where relevant data is locatedi.e. on a personal computer, jump drive, etc., and
how much production there is.
This ensures that custodian understands what is expected & so counsel knows that the
custodian is attempting to comply w/ the litigation hold.
These must be conducted in person & custodian signs at the end.
o Collect and isolate evidence -> failure = negligence
o Process it for production
o Counsel still has an ongoing obligation to ensure that discoverable info is not lost
Monitoring compliance; resend litigation hold periodically
Making sure routine DRP/destruction policy was suspended
Become knowledgeable of the document retention systems
Producing info responsive to the opposing partys requests
Qualcomm Inc. v. Broadcom Corp. pg. 296 -> Party failed to produce more than 46,000 documents requested
and that they agreed to produce. Held: fact that Qualcomm didnt do basic searches at any time before the
completion of trial indicates intentional withholding. Massive volume & relevant.
Note: closely related investigation or proceedings involving similar facts and claims can also provide pre-
filing constructive notice of future litigation.
o Zubulake -> court identified the trigger date as the day on which s discrimination complaint was
first filed w/ the EEOC. EEOC complaint at least provides the possibility of a civil suit & clearly puts
employer on notice that either a suit by the federal govt. or the complainant is likely to follow.
Consider:
o When does the DTP arise? (fact specific)
o Was the partys decision to preserve or not to preserve reasonable and made in GF given the facts
available to the party at the time it made the decision?
o If the preservation request is too narrow, does the receiving party have a DTP relevant evidence not
mentioned in the letter?
o Does the letter say that if you dont do this we will sue you?
E. What Records Must Be Preserved?
Zubulake pg. 116
i. Documents or tangible things made by individuals likely to have discoverable info that the
disclosing party may use to support its claims or defenses
ii. Documents prepared for those individuals to the extent those documents can be readily identified

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iii. Info that is relevant to the claims or defenses of any party, or which is relevant to the SM involved in
the action.
Backup tapes
o Held solely for disaster recovery (not designed for routine retrieval) = inaccessible
However, if the party knows that the tapes contain unique info = DTP
o Accessed in the ordinary course of business = accessible
o Data of key players that is not available from a more accessible source i.e. more likely to contain
relevant info = DTP
Zubulake -> DTP applies to all relevant info, including ESI in the possession, custody or control of a party
regardless of where it is located.
o Inaccessible ESI must be preserved only if it is relevant to the litigation and is not accessible from a
more accessible source.
Metadata: info about a particular data set that describes how, when & by whom it was collected, created,
accessed, modified & how it was formatted.
o Not addressed directly in the Rules of Civil Procedure
o Converting a file from its native format to PDF or TIFF strips the metadata
Note: Absent any specific format request, PDF is presumptively a reasonably usable
formi.e. it needs to equally accessible and searchable to the receiving party as it is to the
producing party.
o Relating to document authenticity, there may be a rebuttable presumption that metadata are
relevant even when it provides no substantive info that directly relates to claims or defenses.
o Williams v. Sprint/United Management Co. pg. 356 -> produced Excel sheets w/ metadata
scrubbed. Argued metadata irrelevant, privileged, s didnt request it although they requested
native docs. Emerging standards of electronic discovery general presumption against the
production of metadata. Held: When a party is ordered to produce ED in their ordinary course of
business, it should be w/ metadata intact unless the party timely objects, the parties agree that it
should not be produced, or the producing party requests a protective order. Initial burden to object
is placed on the party ordered to produce. Metadata associated w/ changes to docs are relevant
(not exhaustive list). Any concerns about whether the metadata is accurate or reliable should be
addressed to Court. If claiming privilege in metadata, this must be raised before productionobject
& provide a privilege log. requested native docs = metadata too.
o Aguilar v. Immigration & Customs Enforcement pg. 371 -> didnt request production form.
The more interactive the application = more important metadata is. Ex. spreadsheet
Discoverable if it is relevant to the claim or defense of any party and is not privileged.
Sedona Conference: most metadata has no evidentiary value so modest legal presumption
against the production of it. However, if relevant, it should be produced. Principle 12 test:
1. What metadata is ordinarily maintained;
2. Relevance of the metadata; and
3. Importance of reasonably accessible metadata to facilitating the parties review,
production, & use of the info.
Consider:
When does the DTP attach?
What evidence must be preserved?
F. Preservation Order
Litigant may request when it anticipates that its opponent may fail to comply w/ its preservation
obligations
o Consider:
History of discovery misconduct or spoliation violations
If the party knows t hat their document/retention policy will likely result in destruction
Helps to shield from spoliation claims by either party if the court issues the order on its own
G. Possession, Custody, or Control (are production rules)
Control
o In re NTL, Inc. Securities Litigation pg. 215-218

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Rule 34 -> control does not require that the party have legal ownership or actual physical
possession of the documents at issue; rather documents are considered to be under a partys
control when that party has the right, authority, or practical ability to obtain the documents
from a non-party to the action.
o Requires production if the party has the practical ability to obtain the documents
from another, irrespective of his legal entitlement to the documents.
o Hatfill v. The NY Times Company -> sought a reporters research & interview notes which were
maintained on his personal flash drive. Notes were not stored on any of the s computers. had
agreed that the unpublished notes would be retained by the reporter & did not belong to the . Held
that newspaper did not have physical possession of the flash drive i.e. declined to compel to
produce the reporters note.
Control: defined as actual possession of a document or the legal right to obtain the
document on demand.
o Cyntegra, Inc. v. Idexx Laboratories pg. 228 -> stored most of its electronic data on non-party
servers run by a vendor. B/c was delinquent on payments, vendor deleted s data from its
servers. sanctioned for vendors destruction of evidence. Held b/c s DTP had already arisen at
the time payments were discontinued, had an affirmative duty to make payments & preserve the
evidence. could have saved or printed the info after determining that it could no longer make
payments.
cannot bypass this duty by abandoning its documents to a 3
rd
party & claiming lack of
control.
o For the material to be discoverable, the party must have some type of legal right to the material the
opposing arty seeks to discover.
o Rules 26, 34(a), and 45 all have possession, custody, or control requirements
Rule 26(a)(ii) -> party discloses documents in its possession, custody or control on which
is intends to affirmatively rely. Note: this could be viewed as an admission that a party has
certain records which may affect its responses to Rule 34 discovery demands. Pg. 221
Possession
o Phillips v. Netblue, Inc. -> moved to sanction for failing to produce relevant info. Info at issue
consisted of images that could be accessed through hyperlinks found in emails received by the
plus advertisements accessed through the hyperlinks. Images could no longer be obtained & the
advertisements were no longer accessible. Wanted the image maintained and the URLs saved. Held
that had no duty to keep that which it never had kept the emails, but the info that could be
reached through the hyperlinks was never in its possession. Held was faulting for failing to
gather evidence, not for failing to preserve it.
Consider:
Was the info ever in the partys possession?
Is the party seeking sanctions for failure to gather or preserve?
o Actual possession, not ownership, determines whether a party must produce documents.

MEET AND CONFER CONFERENCE
A. Rule 26(f) Conference
Note: must identify all of the custodians before the meet and confer
o Requires attorneys to meet before the Rule 16 scheduling order is dueEncourages cooperation &
transparency
Forces parties to focus problems on preservation & e-discovery on the front end instead of possibly facing
sanctions on the backend for failure to preserve and/or produce info.
10 things that should be discussed at a minimum: pg. 695
1. Type of info technology systems in use & the persons most knowledgeable in their operation
2. Preservation of ESI that may be relevant to litigation
3. Scope of the electronic records sought
4. The format in which production will occur

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5. Whether the requesting party seeks to conduct any testing or sampling of the producing partys IT
system
6. Burdens & expenses that the producing party will face based on Rule 26(b)(2) factors
7. How they may be produced
8. Amount of pre-production privilege review that is reasonable for the producing party to undertake
9. Measures to preserve post-production assertion of privilege w/in a reasonable time; and
10. Any protective orders or confidentiality orders that should be in place regarding who may have
access to info that is produced.
Consider:
o Preservation of evidencewhat needs to be preserved i.e. scope of preservation
o Discovery and disclosure of ESI
o The form that the production will takepaper or electronic; native, PDF, TIFF, searchable.
Discussion the meaning of a reasonably usable form
o Procedure for retrieving inadvertently produced privileged infoclaw back agreement or whether
they will agree to initially forgo any review w/o waiving privilege i.e. quick peek
Best practice to request that the court memorialize the agreement in an order.
o The size/volume of the data
o Issues of cost & accessibility
o Discuss what is really at issue in the case to focus discovery efforts
o Whether some or all of the metadata must be produced
What metadata is ordinarily maintained; potential relevance
Note: producing partys failure to produce may deprive them of contesting authenticity of a
document down the line
o Identify the time period at issue
o A rational search protocol agreeing on keyword search terms
o May want to bring an IT person along
o Who the key custodians are
o Documents produced must be usable or reasonably accessible
Should have page breaks
Attorneys have a duty to cooperate
o Rule 26(a)(1)(A)(ii) -> make disclosures fairly early in the case
After conference, parties must submit a written report to the court outlining discovery plan for litigation.
In re Seroquel Products Liability Litigation -> pharmaceutical products liability case. s repeatedly failed to
get discovery so they went through the court. Held s engaged in purposeful sluggishness. s produced
ESI w/o metadata, non-searchable 20,000 + TIFF images; 10 million pages; EDs w/o Bates numbering;
employed a plainly inadequate keyword search methodology to cull responsive documents from the
collections of custodians; did not operate in GF to identify responsive databases. **Neither party was
sanctioned under Rule 16(f)(1)(B).** Held: party failed to produce usable or reasonably accessible docs
o Note: court argued that failure to include knowledgeable electronic discovery consultants in the
meet & confer is antithetical to the Sedona Principles and is not an indicium of GF.

PRODUCTION ISSUES
A. Rule 34
Rule 34(b) -> Parties can specify the form of productiondefault is the form in which the records are [1]
ordinarily maintained or [2] in a form that is reasonably usable.
o Ordinarily maintained is not synonymous w/ native format, but does include metadata.
o Failure to specify may result in the court denying a request to have the documents reproduced in a
native format.
o Burden on the party opposing that the production is not reasonably usable
o Note: If produced in the usual course of business manner, the Rule imposes no duty to organize,
label, or provide an index of the documents produced. MGP Ingredients, Inc. v. Mars, Inc. pg. 316
Requesting party may ask for a sampling of documents or ESI.
o Allows to determine if keywords yield results that are over or under-inclusive

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Rule 34(b)(2)(E)(I and ii) -> requires that documents be produced as they are kept in the usual course of
business, and unless otherwise specified by the requesting party, in the form which they are ordinarily
maintained or in a reasonably usable form.
o Note suggests that metadata may not be stripped if it makes the documents less useful or less
searchable.
o Could argue that a literal reading of this includes metadata
o Lawson v. Sun Microsystems, Inc. pg. 313 -> sent a letter to requesting that ESI be produced in
native format, however, in their formal discovery requests they failed to state the requested form of
production. s refused arguing Rule does not require duplicative efforts. Held: although letter not a
formal request, it provided s notice of the requested format.
o Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc. pg. 314 -> never specified
form of production. produced hard copies. argued for native format. Held: s motion to compel
denied. was the master of its production requests. failed to demonstrate the hard copies were
not reasonably usable. Note: could argue that it demonstrates not reasonably usable w/in the
meaning of Rule 34(b) then native = ok.
Note: Emails should be produced w/ their attachmentsnot divorced from them.
B. Sedona Principle 12 -> determining what form of production to specify:
Forms most likely to provide the info needed to establish the relevant facts of the case;
Need for metadata to organize & search the info produced;
Whether the info sough is reasonably accessible in the forms requested; and
Requesting partys own ability to effectively manage and use the info in the forms requested.
C. Search Methods
Victor Stanley, Inc. v. Creative Pipe, Inc. pg. 699 -> sought an order from the court that 165 documents
produced by the s was not entitled to any attorney-client privilege or work product protection. 9,000
documents were produced in PDF form. Found that s failed to exercise reasonable care b/c no sampling of
QA was conducted. s failed to give the court info regarding keywords used, rationale for their selection,
the qualifications of M. Pappas & his attorneys to design an effective & reliable search & info retrieval
method, whether the search was a simple one or employed Boolean, or whether s analyzed results to
assess its reliability & quality of the implementation.
o Party that inadvertently produces privileged documents & seeks return has the burden of proving
that its conduct in reviewing & producing documents was reasonable.
Note: same standard under Rule 502
Consider:
Did the party use expert testimony to explain how search was constructed?
Party seeking ESI will argue that if the owner chooses the selection criteria then it
will be biased towards not finding info.
Party holding ESI will argue right to control their own data & to shield non-relevant,
trade secret, privileged, etc. from the opposing party.
Privilege Log
o Items that have been marked w/ as privileged, which privilege is being asserted, including author,
recipient, date & subject line.
o For federal cases, this must be done w/in 30 days or risk being sanctioned & nothing is privileged.
D. Person Most Knowledgeable
Rule 30(b)(6) depositions -> depose the person in the best position to know certain info, whose testimony
speaks for & is binding on a corporation.
o It is improper for a witness to deny knowledge of facts w/in the knowledge of the org. as a whole or
reasonably knowable by the org.
Courts have held that a party cannot present evidence on a subject after its witness claimed
to have no knowledge about a subject that is properly described in the deposition notice.
o Qualcomm pg. 298 -> If a witness is testifying as an org.s most knowledgeable person on a specific
subject, the org. as an obligation to conduct a reasonable investigation & review to ensure that the
witness does possess the organizations knowledge. [or who can reasonably obtain that knowledge.]

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Rationale: to protect against sandbagging
Topics for examination must be stated w/ reasonable particularity.
Note: this person could be a 3
rd
party such as a vendor.
E. Not Reasonably Accessible Data
Even if shown that ESI is reasonably inaccessible b/c of undue burden or cost, court may still order
discovery if requesting party shows good cause considering the limitations of Rule 26(b)(2)(C) which
applies to all data.
o Factors that might be considered for the good cause test based on Rule 26(b)(2)(B) note:
Specificity of the discovery request
Quantity of info available from other & more easily accessed sources
Failure to produce relevant info that seems likely to have existed, but is no longer available
on more easily accessed sources
Likelihood of finding relevant, responsive info that cannot be obtained from other, more
easily accessed sources
Predictions as to the importance & usefulness of the further info
Importance of the issues at stake in the litigation; and
The parties resources.
Consider:
o Is it economically feasible?
o Will the uniqueness of responsive data received justify the cost of acquiring that data?
o Is the same data available in another, more accessible, location?
o Data sampling may determine whether further discovery is warranted
F. Direct Access to a Partys Hard Drive
Requesting party must show: pg. 499
1. The responding party has somehow defaulted in its obligation to search its records & produce the
requested data; and
2. Responding partys production has been inadequate & that a search of the opponents electronic
storage device could recover deleted relevant materials.
o *****Note*****: Courts should not permit the requesting party itself to access the opponents
storage device; rather only a qualified expert should be afforded such access, & only when there is
some indication that retrieval of the data sought is feasible. Advised to impose reasonable limits.
G. Cost-Shifting
Zubulake -> whether the cost of producing ED in response to a request may be shifted to the requesting
party. Held that when info is inaccessible a court should always consider cost-shifting & do a sample testing.
o Test
1. Extent to which the request is tailored to discover relevant info.
2. Availability of info from other sources
3. Total cost of production compared to the amount in controversy
4. Total cost of production compared to the resources available to each party
5. Relative ability of each party to control costs & its incentive to do so
6. Importance of the issues at stake in the litigation
7. Relative benefits to the parties of obtaining the info.
o Marginal utility test
Factors 1 and 2
o Cost issues
Factors 3-5
o The importance of the issues at stake in the litigation
Factor 6
o Relative benefits to the parties of obtaining the information
Factor 7
This factor weighs in favor of cost-shifting
o GR producing party bears the cost of production


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SPOLIATION & SANCTIONS
A. Rule 37
Rule 37(b) -> gives court power and broad discretion to sanction a party for failure to comply w/ orders
Rule 37(b)(2)(A) identifies the following sanctions:
o Directing that matters be taken as established
o Prohibiting the disobedient party from supporting or opposing designated claims or defenses
o Strike pleadings in whole or in part
o Staying further proceedings until the order is obeyed
o Dismissing the action or proceeding in whole or in part
o Rendering a default judgment against the disobedient party; or
o Treating the actions as contempt of court.
A sanction under this rule may include an order to pay reasonable expenses including attorneys fees.
B. Inherent authority -> can impose sanctions based on inherent power to manage its own affairs
C. Rule 26(g) -> court can sanction an attorney for violation of certifying to the best of their knowledge, info, and
belief formed after a reasonable inquiry that the disclosures are complete & correct, & that discovery requests,
responses, & objections are consistent w/ law, not for an improper purpose, and neither unreasonable or
unduly burdensome or expensive.
D. Relevance and Prejudice
Both serve as an important check on spoliation allegations & sanctions motions
o Speculative or generalized assertions that the missing evidence wouldve been favorable to the
party seeking sanctions = insufficient
o When the evidence in the case as a whole would allow a reasonable fact finder to conclude that the
missing evidence would have helped the requesting party support its claims or defenses, that may
be a sufficient showing of both relevance & prejudice to make an adverse inference instruction
appropriate.
When the level of culpability is mere negligence, the presumption of relevance & prejudice
is not available.
o Rebuttable by showing that the innocent party had access to the evidence allegedly destroyed or
that the evidence would not have been helpful to the relevant party
Relevant evidence Rule 401
o Evidence having any tendency to make the existence of any fact that is the consequence to the
determination of the action more probable or less probable than it would be w/o the evidence.
Prejudice
o Consider: Is the prejudice to the party irreparable?
Can the deleted records be obtained from other sources?
Is there other evidence of the contents of the lost records?
E. Spoliation
Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property
for anothers use as evidence in pending or reasonably foreseeable litigation.
o Rationale: Value to having a well-functioning legal system; retain confidence in the process.
o Arises from the courts inherent power to control the judicial process & litigation, but the power is
limited to that necessary to redress the conduct which abuses the judicial process.
(5) Factors to determine whether spoliation has occurred: pg. 550
1. Prejudice to the non-spoiling party as a result of the destruction of evidence,
2. Whether the prejudice can be cured,
3. Practical importance of the evidence,
4. Whether the spoiling party acted in good or bad faith, and
5. The potential for abuse of expert testimony about evidence not excluded.
i. Degree of culpability
o Culpable state of mind
Zubulake -> Once a DTP attaches, any destruction of documents, is at a minimum, negligent.
Failure to include certain data in the preservation directive exceeds mere negligence.
For the court to decide

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Whether materials were unfavorable to the culpable party = jury
o Sliding scale that includes mere negligence, gross negligence, recklessness, BF, & intentional
misconduct. Zubulake pg. 105-107
Negligence
Unreasonable conduct in that it creates a risk of harm to others
Caused by heedlessness or inadvertence, by which the negligent party is unaware of
the results, which may follow from its act.
Failure to take all appropriate measures to preserve ESI = negligence
Note: At a minimum, any loss of ESI is negligent once a DTP is triggered.
Party moving for this must show relevance.
Gross negligence
Failure to exercise event that care which a careless person would use.
Party moving for this must show relevance & prejudice
o Although they may be presumed in GN acts i.e. presumption not mandatory
Examples:
o If you have a litigation hold letter in writing but no interview = GN
o If the search is inadequate there is a breach of DTP = GN
o Instituting only an oral litigation hold = GN; b/c the failure is likely to result
in the destruction of relevant info.
o No adequate litigation hold = GN
Willful/Intentional Negligence
Intentional or reckless conduct that is so unreasonable that harm is highly likely to
occur usually accompanied by a conscious indifference to the consequences.
The intentional destruction of relevant records, either paper or electronic, after the
DTP has attached = willful
Burden on accused party to show that documents were not relevant.
The spoliators conduct was so egregious as to amount to a forfeiture of his claim
and the effect of the spoliators conduct was so prejudicial that it substantially
denied the / the ability to defend the claim.
Bad Faith
BF requires that the documents must be [1] destroyed intentionally [2] for the
purpose of hiding adverse info. Rambus
Where a party destroys evidence in BF, that BF alone is sufficient circumstantial
evidence form which a reasonable fact finder could conclude that the missing
evidence was unfavorable to that party.
Burden on accused party to show that documents were not relevant.
o **No matter the level of culpability found, any presumption is rebuttable.
o There must be a finding of prejudice to the opposing party before imposing a sanction for
destruction of evidence.
Inherent problem w/ requiring a party show prejudice when the evidence is missing.
To remedy: complete destruction of evidence = finding of prejudice.
Will also presume prejudice where the culpability of the spoliator is egregiousreckless or
intentional.
o Once intent and prejudice have been established, court must determine whether the total weight
satisfies the CCE standard of proof.
Showing of BF can be less when high prejudice and vice versa.
ii. Rule 37(e) Safe Harbor
o In re Krause pg. 588-> Trustee & govt. trying to get assets from . using wiping software on his
computer after DTP attached. Computers crashed & resumed wiping. Held ESI destroyed in BF.
Computers were far from being at full capacity so no routine operation. s significantly prejudiced.
= NO RULE 37(e) SAFE HARBOR

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o Doe v. Norwalk Community College -> s expert found that computers had been wiped clean. was
subject to states DRP, but IT did not follow it b/c they didnt know. Pending criminal charges so
execs knewDTP. Held that to take advantage of GF exception under Rule, [1] party needs to act
affirmatively to prevent the system from destroying or altering information, even if such
destruction would occur in the regular course of business; [2] Rule only applies to info lost due to
routine operation. = NO RULE 37(e) SAFE HARBOR
o Escobar v. City of Houston pg. 586 -> shooting death of minor. s provided police of wrongful death
claim. s argued that s notice did not specifically request all electronic communications & that
they preserved all evidence it believed was relevant. Held destroyed during routine operation. =
YES RULE 37(e) SAFE HARBOR
o Consider:
o Did the party act in GF?
o Was it routine based on their retention policy?
o Was notice given to suspend the destruction i.e. DTP?
F. Sanctions

Sliding scale (from least to most severe): fines, cost-shifting, burden shifting, preclusion of evidence,
adverse inferences, & default judgments.
o Note: a party cannot be sanctioned unless they is at least negligence
o Fines *& cost-shifting = focus more on conduct of spoliating party than documents lost
o Harshest sanctions are dispositive.
= dismissed
= default judgment
Court must take into account: Rambus pg. 85
1. Degree of fault of the party who altered or destroyed the evidence;
2. Degree of prejudice suffered by the opposing party; and
3. Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party
and, where the offending party is seriously at fault, will serve to deter such conduct by others in
the future.
o Several factors, not exclusive, in discretion to impose sanctions pg. 596
Willfulness of the non-compliant party or the reason for noncompliance
Efficacy of lesser sanctions
Duration of the period of noncompliance, and
Whether the noncompliant party had been warned of the consequences of noncompliance.
o Note: Court may also consider: pg. 570
Degree of interference w/ the judicial process
Whether a lesser sanction will remedy the harm
Whether sanctions are necessary to deter similar conduct; and
Whether sanctions will unfairly punish an innocent party for spoliation committed by an
attorney
A court may sanction a party for spoliation of evidence by: pg. 550 (**pre-req. in green on pg. 10**)
1. Dismissing the case,
2. Excluding expert testimony, or
3. Issuing jury instructions that raise a presumption against the spoliator.
Default judgments/dismissals -> under Rule 37(b)(2) or inherent power. Consider:
o Degree of actual prejudice to the other party
o Rambus pg. 84 -> Dismissal should not be imposed unless there is CCE of both BF spoliation and
prejudice to the opposing party.
o Sanction is appropriate only if the spoliation or destruction of evidence resulted in irreparable
prejudice and no lesser sanction would suffice.
o Court may order a default judgment or dismissal, either pursuant to Rule 37(b)(2) for violation of a
discovery order, or pursuant to the courts inherent power to protect its integrity & prevent abuses
of the judicial process. When evaluating, court should consider: pg. 615

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1. Degree of actual prejudice to the other party;
2. The amount of interference w/ the judicial process;
3. The culpability of the litigant;
4. Whether the court warned the party in advance that default or dismissal of the action
would be a likely sanction for noncompliance; and
5. The efficacy of lesser sanctions.
Adverse inference
o Can only be drawn if the party had control of the evidence that was lost
Must be some indication of an intent to destroy evidence for the purpose of obstructing or
suppressing the truth in order to impose this sanction
Can be rebutted by an adequate explanation of the reason for non-production. Pg. 569
o Zubulake pg. 96 & DeGeorge pg. 558 -> (3) factors based on the destruction of evidence
1. That the party having control over the evidence had a DTP it at the time it was destroyed;
2. The records were destroyed w/ a culpable state of mind; and
3. The destroyed evidence was relevant to the partys claim or defense such that a reasonable
trier of fact could find that it would support that claim or defense.
Note: Some courts will treat 3
rd
hurdle as satisfied when part 2 was done in BF.
The party that breached w/ a culpable state of mind did so in BF.
o Residential Funding Corp. v. DeGeorge Financial Corp. pg. 558 -> party seeking in the instruction
must show (3) factors for evidence not produced in time for use
1. That the party having control over the evidence had an obligation to timely produce it;
2. The party that failed to timely produce the evidence had a culpable state of mind; and
3. The missing evidence is relevant to the partys claim or defense such that a reasonable trier
of fact could find that it would support that claim or defense.
o Note: The burden placed on the moving party to show that the lost evidence wouldve been
favorable to it ought not be too onerous, lest the spoliator be permitted to profit from its
destruction.
o Rationale: Serves the remedial purpose of restoring the prejudice party to the same position he
would have been in absent the wrongful destruction of evidence by the opposing party. Provides eh
necessary mechanism for restoring the evidentiary balance.
o (3) Kinds of adverse inference instructions pg. 604
1. Most harsh = jury instructed that certain facts are deemed admitted & must be accepted
as true
Spoliating party acted willfully or in BF
2. Middle = may impose a mandatory presumption (considered rebuttable)
Willful or reckless actions
3. Least harsh = jury to presume, but not require, that the lost evidence is both relevant &
favorable to the innocent party.
o Consider: [1] Degree of culpability, & [2] prejudice to the innocent party.
G. Note: if a person intends to destroy documents & does so w/ the additional subjective desire to impede a fed.
Investigation that is a crime. 18 U.S.C. 1512 Sarbanes-Oxley Act pg. 80

PRIVILEGE ISSUES THAT MAY ARISE
A. Rule 502
Provides the following protections against waiver of privilege or work product not 5
th
Amendment self-
incrimination.
Goal is to provide meaningful reduction of the cost of pre-production privilege review of ESI
Rule 502(a) -> Limitations on scope of waiver
o If waiver is found, in fed. proceeding, it only applies to the info disclosed
o Must be intentional, disclosed & undisclosed info is same SM
i.e. SM is limited to those situations in which a party intentionally puts protected info into
the litigation in a selective, misleading, and unfair manner.
Rule 502(b) -> Protections against inadvertent disclosure

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o Inadvertent disclosure of privileged or protected communications or info, when made at a fed. Level,
does not operate as a waiver if the hold took reasonable steps to prevent such a disclosure &
employed reasonably prompt measures to retrieve the mistakenly disclosed communications or
info.
Including following Rule 26(b)(5)(B) on next page
o Test for determining whether inadvertent disclosure is a waiver: (none are dispositive)
Reasonableness (not perfection) of the precautions taken
Total # of docs reviewed
Procedures used to review the docs before they were produced
Time taken to rectify the error
Scope of discovery
Extent of disclosure & overriding issue of fairness.
o Note: Inadvertent is not defined in the Rule.
o Does not require the producing party to engage in post-production review, but does require the
producing party to follow up on any obvious indications that a protected communication or info has
been produced inadvertently. This would increase costs of discovery.
o A disclosure that is not a waiver under this Rule cannot be found to be a waiver in any other
litigation.
o Rule 502(d) -> Confidentiality orders binding on non-parties
Fed. Court may order that the attorney-client privilege or work product is not waived by
disclosure connected w/ litigation pending before the court. i.e. also not a waiver in any
other federal or state proceeding.
Not limited to inadvertent disclosures
Discretion of the court to enter these
Covers only waiverprivileged status is determined under Rule 501.
Contemplates enforcement of claw back and quick peek arrangements
o Rule 502(e) -> Confidentiality agreements
Parties in a fed. proceeding can enter into mutually agreed upon protections, but not binding
on non-parties unless incorporated into a court order.
o Rule 502(c) -> Disclosures made in state proceedings of communications or info subsequently
offered in a fed. proceeding
If privileged or protected info is disclosed in a state proceeding, then admissibility in a
subsequent fed. proceeding is determined by the law that is most protective against waiver.
Rationale: Seeks to provide a predictable, uniform set of standards under which parties can determine the
consequences of a disclosure of a communication or info covered by the attorney-client privilege or work
product protection.
Consider:
o How many documents were disclosed vs. produced
o Time constraints for production
o Use of software and search terms & rationale for it
o Is the records system well organized
o # of eyes-on review of the info before it was produced
Rule 502(a) -> specifically states that in any federal proceeding a mistaken disclosure can never justify a SM
waiveronly applies to the actual disclosed items.
o Note: Waiver has to be intentional for there to be SM waiver in any other case
B. Agreements B/t Parties to Protect Against Waiver By Disclosure in Discovery
Quick peek -> producing party provides requested documents w/o waiving any privilege or protection.
Claw back -> mistaken disclosure of privileged data is not deemed a waiver as long as the producing party
identifies he documents mistakenly produced, & the documents must then be returned.
o Other party will give it back regardless of whether that party was diligent or negligent in going
through the documents before sending them
o The Gold Standard -> the disclosure or production shall be deemed inadvertent and shall not
waive any applicable privilege as to 1. That document, 2. Any part thereof, 3. Any other document

15
or information relating thereto, or 4. The same or related subject matter. Except as noted in this
paragraph, the terms of this Agreement apply to all potentially privileged documents regardless of
when the inadvertent production of such documents is discovered.
Read protection; no notes or summaries
o Rajala v. McGuire Woods, LLP. pg. 727 -> Held: claw back provision is warranted b/c (1) the
extensive about of ESI; (2) M is a large firm with thousands of clients; (3) there is a REAL risk for
inadvertent disclosure is HIGH and (4) disputes concerning the inadvertent disclosure would
disrupt the discovery process (waste $ and time). M met burden showing it was needed.
o If the receiving party believes it is not privileged, then the producing party has to go to court to get
a determination on whether it is or is not.
Note: You never get to 502 about waiver unless it was intentional.
C. Obligations of the Party that Receives Mistakenly Privileged Info
Rule 26(b)(5)(B) -> if a receiving party is notified of the mistaken disclosure by the adversary, then the
receiving party must promptly return, sequester, or destroy the specified info and any copies it has. Must not
disclose the info until the claim (whether or not it is privileged) has been resolved. Receiving party may
submit the materials to the court under seal to obtain a ruling as to whether the info is protected or not.
o Party receiving not required to inform the adversary that it appears to have mistakenly disclosed
privileged info.
o Certify you did so.

ADMISSIBILITY OF DIGITAL EVIDENCE
A. General Approach
All evidence must be reliable, probative, and authentic.
Is admissible whenever hard copy evidence of the same type would be admissible.
B. Types of Digital Evidence
Electronic business records
o Admissible whenever a comparable hard copy would be
Computer-generated animation showing how a disputed event may have occurred
o Must be substantially similar
o Jury should be instructed that the computer-generated depictions are not considered as proof of
how the event occurred, but only as an explanation of the experts testimony or the partys theory of
the case.
Digital presentation to illustrate an experts opinion
Pedagogical device -> ex. aid questioning a witness like highlighting a clause of a K
Digital enhancement
o Consider:
Whether the enhancement is a fair & accurate depiction of the original
Was it time-lapsed or real time?
Was the original image dark and then brightened or vice versa?
Was only one particular camera angle shown to the jury of others existed?
Info found on the Internet
o Consider:
What was actually on the site
Does the exhibit or testimony accurately reflect this
Length of time data was posted on the site
Is it still up there?
Is this data the type ordinarily posted on that site or similar sites?
Has the owner of the site published this same info elsewhere on the web?
Has it been republished by others who identify this person as the source?
o Chat rooms -> Consider: Screen name and evidence linking that person to it
Emails

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o May be authenticated by: appearance, contents, substance, presence of the work email address;
content; use of a nickname in the email, name of the org in the email address, logos, if the email
recited matters that would be known only the individual who is alleged to have sent it, etc.
o May also be established by the testimony of a witness who sent or received the emails
o Emails reproduced in a reasonably usable form, court should consider: pg. 313
1. Relevance of the requested info;
2. Whether or not it was reasonably accessible; and
3. If reproduction would be unduly burdensome or costly.
Misc. -> Wikipedia, GPS, FB, etc.
C. Arguments When Digital Evidence Is Proffered
Relevance & Prejudice
o Prejudice b/c presentations may present facts in a distorted or inaccurate manner
o Rule 403 -> evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.
i.e. relevant evidence must be admitted, unless its probative value is substantially
outweighed by these risks.
o Magnifying digitalized, computerized images between 30-150 times the size of the original = not ok
Authenticity
o Evidence must be what it is purported to be
o Rule 901 -> the authenticity requirement is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.
Consider: Whether the proponent of the evidence offered a foundation from which the jury
could reasonably find that the evidence is what the proponent says it is.
o Examples that satisfy the requirement:
Testimony of a witness w/
knowledge
Expert describing a
process/system that produces
an accurate result
Appearance
Opinion about a voice
Comparison by an expert
witness
Document recorded or filed in
a public office as authorized
by law
o Note: Official publications of govt. offices are self-authenticating.
Hearsay
o Rule 801(c) -> Out-of-court statement for which its probative value is dependent on its truth
1. Declarant does not make while testifying at the current trial or hearing; and
2. Party offers in evidence to prove the truth of the matter asserted in the statement.
Rule 801(a) -> Statement: A persons oral assertion, written assertion, or nonverbal conduct
if the person intended it as an assertion.
Rule 801(d) -> Statements that are not hearsay
1. A declarant-witnesss prior statement
a. Inconsistent w/ the declarants testimony & was given under penalty of perjury
@ a trial, hearing, or other proceeding or in a deposition;
b. Consistent w/ the declarants testimony & is offered to rebut an express or
implied charged that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
c. Identifies a person as someone the declarant perceived earlier.
2. An opposing partys statement -> statement is offered against an opposing &:
a. Was made by the party in an individual or representative capacity (has to be
officially reviewed & approved statement if from a corp.)
b. One the party manifested that it adopted or believed to be true;
c. Made by a person whom the party authorized to make a statement on the
subject (an officer & sometimes the board if a corp.)

17
d. Made by the partys agent or employee on a matter w/in the scope of that
relationship & while it existed; or
One of the most important ways to get a doc in for a business
e. Made by the partys coconspirator during & in the furtherance of the conspiracy.
o Hearsay exceptions
Rule 803(6) business records exception -> Records of Regularly Conducted Activity : A
record of an act, event, condition, opinion, or diagnosis if:
a. Record was made at or near the time byor from info transmitted bysomeone w/
knowledge;
b. Kept in the course of regularly conducted activity of a business, org, occupation, or
calling, whether or not for profit;
c. Making the record was a regular practice of that activity;
d. All of these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies w/ Rule 902(11 or 12) or w/ a
statute permitting certification; and
e. Neither the source of info nor the method or circumstances of prep indicate a lack of
trustworthiness.
Note: No requirement to present expert testimony on the accuracy of the computer
or its software. It is enough that to show that the company relied upon it in
conducting business.
Rule 803(8) public records exception -> A record or statement of a public office if:
a. It sets out:
i. The offices activities;
ii. A matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law enforcement personnel; or
iii. In a civil case or against the govt. in a criminal case, factual findings from
a legally authorized investigation.
b. Neither the source of info nor other circumstances indicate a lack of
trustworthiness.
Generally admitted unless there is a substantial showing that the records were
prepared in a untrustworthy manner.
Exceptions: business & public records showing that the record is a regular recording
of a regularly conducted activity
o Rule 805 -> when multiple layers of hearsay exist, each layer must independently satisfy an
exception to the hearsay rule.
o Note: if evidence is completely machine-generated = not hearsay b/c not a statement made.
Data entry = hearsay
***Still must prove authenticity, relevance & not unduly prejudicial under Rule
403!!!***
Best Evidence Rule
o When a party is trying to prove the contents of a writing, recording or photograph, the party must
introduce the originalunless there is a duplicate or an exception to the Rule.
o Rationale: To protect against fraud & manipulation.
o Rules 1001-1004 pg. 746-748
For ESI original means any printout
o Note: No requirement to choose to use this Rule.
o Exceptions:
1. Duplicates are acceptable unless the opponent raises a genuine question as to the originals
authenticity or demonstrates that using the duplicate in lieu of the original is somehow
unfair; and
2. The party can forego the originalor any duplicateif there is a good reason for not having
it.
o Rule 1004 -> Original not required and other evidence of the contents are admissible if:

18
All originals are lost or destroyed, & not by the proponent acting in BF;
Cannot be obtained by any available judicial process;
The party against whom the original would be offered had control of the original; was at the
time put on notice, by pleadings or otherwise, hat the original would be subject of proof at
the trial or hearing; & fails to produce it at the trial or hearing; or
The writing, recording, or photograph is not closely related to a controlling issue.
Admissibility of Expert Testimony
o Rule 702 -> A qualified expert may testify if:
1. Experts scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
2. The testimony is based upon sufficient facts or data;
3. The testimony is the product of reliable principles & methods; and
4. The witness has applied the principles & methods reliably to the facts of the case.
o Consider:
Verifiability, peer review, rate of error, standards & controls, & acceptable methods
employed by the expert, good grounds based on what is known, etc.