Contents (Consider This an Informal Checklist)

Contents (consider this an informal checklist) All topics are hyper-linked. Simply control-click to go directly to the item you want to read

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 1 of 23 http://www.LegalTechPI.org/ Meet and Confer – 26(f) Introduction The Meet and Confer Instructional Outline will assist legal practitioners in navigating the “Meet and Confer” process. The outline covers the technical issues involved in a meet and confer. However, this is a subject matter in which the line between technical and legal advice is very gray. For a broader coverage of the legal aspects, see the Sedona Conference Jumpstart Outline available at https://thesedonaconference.org/download-pub/4683. This outline represents years of member experience in the Meet and Confer process and serves to inform attorneys as to considerations and actions fundamental to successful conferences. The outline looks at 3 stages: pre-conference, activities at the conference, and post conference. The outline provides practical checklist items and related strategic considerations to streamline the process and avoid any missed steps. There is no easy button. This is a dense topic, where errant strategy and missed cues can cost you your case. You owe it to yourself and your client to work with those deeply experienced in the legal technology field to learn and grow. If you find this document “too much”, then please take this as guidance that you need someone with more experience on your team. We all started somewhere 

The following LTPI embers worked hard through the Spring and Summer of 2016 to make this project a reality Bob Rolf Peter Pepiton Chris Paskach P. Sean d’Albertis Kevin Clark Quin Gregor – Program Chair Martin Tully Seth Eichenholtz Noah Lauricella Sunil Ohri

Please join LTPI – we need members like you to work on projects like this. Comments and feedback are welcomed: Please email [email protected]

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 2 of 23 http://www.LegalTechPI.org/ Phase I – Pre-Conference (Preparation) Key consideration: Internal collaboration. Get your act together... Cooperation between the parties is a baseline expectation in the new Rules. Therefore, plan for the Conference with this in mind. a. Explain the cooperation requirement (and advantages) to your Client early in the process. Underscore how “early and often” cooperation is consistent with zealous advocacy and can avoid needlessly expensive disputes and second-guessing down the road.

b. Good preparation facilitates cooperation, as complications and technology issues will occur. Your upfront preparation will demonstrate good faith efforts to make contributions and may result in more favorable treatment from the other side when issues arise.

Preparation – Prepare ahead of time to prevent problems and disputes in the conference. Work with IT, Information Governance, and the business teams to identify a comprehensive list of data sources, custodians, and dates and other critical scope activities. Avoid having gaps where you should have data. Consider the information you will need to achieve strategic and practical goals at the Meet and Confer when negotiating with opposing counsel.

a. Develop procedures to ensure proper stakeholders are present and collaborate. Assess who needs to attend based on your procedures: i.e. who’s best suited to address the elements below.

b. Arrange to have someone at each meeting to take notes capturing decisions and follow-up activities.

Identify individuals with whom to consult for the prep session a. Legal Department: merits attorney; in-house attorneys who worked on the project

b. Business unit members: representative group of Managers who were involved on a day-to-day basis to identify custodians and data sources as well as recently departed custodians or recently modified data sources

c. Records management/IG: Managers or Senior Managers who can speak generally to policies and practices re: documents and data sources with a feedback loop with the Legal Dept. to ensure they understand what is required

d. Information technology: Managers or Senior Managers who can speak generally to policies and practices re documents and data sources with a feedback loop with the Legal Dept. to ensure they understand what is required

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 3 of 23 http://www.LegalTechPI.org/ e. EDiscovery specialists: Managers or Senior Managers who can speak to best practices and anticipatory challenges based upon intimate knowledge of Corporate data structure; translator for IT team

f. Compliance officer: Managers or Senior Managers who can speak generally to policies and practices with a feedback loop with the Legal Dept. to ensure they understand what is required to ensure they understand what is required

g. Legal Department/IT Liaison: Similar to EDiscovery specialist but with a better understanding of legal tactics and considerations

h. Vendor: Strategic partners to discuss data reuse, if possible, and multi-faceted solutions

i. Liaison: Individual identified by party as most knowledgeable about ESI; one who can answer questions about business and technical systems in depositions

a.i. Responsible for all aspects of ESI as it relates to represented party

a.ii. Needs to understand technical aspects of e-discovery as well as location, format, types, and accessibility of client’s ESI as well as best search and collection methods

a.iii. To be used at least to attempt to resolve disputes between the parties but may serve as client’s point person during all ESI discussions

a.iv. NOTE: For certain systems, the liaison should be someone with deep understanding of the system as it is used in a daily basis, as well as how data can be exported. The liaison’s skills are distinct from the IT Admin who knows how to manage the systems setup and resources, or the day to day user, who has a basic understanding. These latter two people are NOT appropriate for your needs.

Determine court rules a. Judge’s rules and standing orders: Check online, and even contact the Judge’s chambers to make sure you have the latest version

b. Case jurisdiction/Local rules: Check online as well as contact the Clerk’s office to make sure you have the latest version

Preservation & Retention Where relevant information exists, it must be preserved, subject to reasonable scope limitations introduced in the new FRCP rules. In litigation, the preservation obligation arises when you reasonably expect to sue or be sued, and steps to preserve should be taken as early as possible.

Litigation Hold is a widely-accepted approach to preservation

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 4 of 23 http://www.LegalTechPI.org/ A Litigation Hold fulfills your obligation to preserve relevant data. It is a documented communication of the obligation between Legal and others in an organization.

Initiation: Act rapidly upon anticipation of litigation or upon receiving notice; incorporate individuals identified in Section 1.a to 1.d, 1.f and [others] to identify Custodians and Data Sources and secure data from destruction/modification; email, with formal memo, all Custodians, IT, RIM, IG and provide sufficient detail about what needs retention, why, and for how long. Failure to do so has resulted in severe sanctions due to avoidable loss of data.

Monitoring: Ideally, acquire Litigation Hold software, but at a minimum send out reminders, email/formal memo, to all Custodians, IT, RIM, IG on a quarterly basis; use software for validation and verification.

Develop Meet and Confer Strategy with Internal Team [[T

a. Determine what needs to be achieved and whether more than one meeting is needed (Set meetings in calendar)

i. Establish discovery limits (See 8, below for considerations)

ii. Identify potential discovery problems

b. Send notes to each attendee (from your party) as to why they are attending and what they should be contributing

c. Develop understanding of data sources, custodians, and dates

d. Eliminate gaps in data sources, custodians, and dates

e. Discuss whether to use a phased approach and, if so, what form it will take

i. Define proportionality for this particular case (see 8, below)

ii. Consider what each team can commit to. Keep realistic conversations with IT with proportionality in mind.

General considerations a. Search Technologies available to the parties, and scope of search b. Proportionality

i. The importance of the issues at stake in the action

ii. The amount in controversy

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 5 of 23 http://www.LegalTechPI.org/ iii. The parties’ relative access to relevant information

iv. The parties’ resources

v. The importance of the discovery in resolving the issues

vi. Whether the burden or expense of the proposed discovery outweighs its likely benefit

vii. Note that b, c, d, and e, below play into “proportionality” c. Date ranges d. Custodians (number, availability, access) e. Data sources

e.i. Consider the probative value of acquiring specific data sources and the associated costs

e.ii. Understand how pervasive various traditional and emerging data sources can be and how they might add to the proposed evidence (e.g. Fitbit, GPS units, IoT). Review Section 9, below.

Tactical considerations Proportionality This is covered elsewhere in this document and is assumed to be incorporated into every step. Accessibility and estimated costs from IT perspective Data “accessibility” is a function of a combination of software, hardware, passwords, and application knowledge. Check with IT staff as to what is accessible and identify the costs (time and money) to produce meaningful data. To be useful for an investigation, data must be understandable to, and usable by, review teams. Producing Legacy application information Before committing to produce, ensure that the information you have is in a form that the opposing party can actually review. Consult with IT on approaches using both the legacy application and 3rd party software emulation tools. Consider proportionality throughout this process. Leverage technology to reduce effort Consider enterprise search and analytics technologies that will provide early data insights. Understanding your data builds confidence and drives good strategy. Refining date ranges, custodians, and data sources Sample data from likely data sources to understand and refine date ranges, custodians, and source data viability. Use information from previous cases to shrink the pool of potential areas to produce

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 6 of 23 http://www.LegalTechPI.org/ from. Document decisions and be prepared to illustrate or defend all such decisions in case of challenges in court. Corporate linguists (taxonomy) Many industries are taxonomy or acronym heavy and use very specific jargon. If these are not documented and referenceable as a part of their Information Governance process, make an effort to understand and document these terms. This forms the basis of a “data dictionary”. Don’t assume that your understanding of the terminology is the ONLY way the terminology is used. Be aware of cultural and local abbreviations/acronyms and slang. Analytics (network, sampling, keyword validation) Create a new, or leverage an existing, data dictionary. Use analytics engines with sampling and conceptual search capabilities, rather than simple keyword search terms, to broaden identification of potentially responsive materials. Technologies with machine learning and predictive coding abilities rapidly cull documents thereby lessening what has to be produced as well as reducing review costs. Draft search terms Keywords can produce inconsistent and incomplete results and often add to cost and confusion; don’t always rely only on these. Consider use of analytics tools (concept search, clustering, and other techniques) which are more accurate and produce better results. If you are not sure what technologies are available or their capabilities, seek help. Be ready to discuss the use of analytics with the opposing side. Note that issues that limit your search capabilities using keywords will also hurt the opposing side. When to include an external expert or service provider If you are unfamiliar with recent technology advances, hire an expert to explain your options. Consider having this expert with you in your meet and confer. Do not be afraid to have them talk on your behalf. Having knowledgeable people present allows for a smoother process and reduces the chance of embrassing gaffes.

Questions to ask when preparing It is your obligation to foresee issues that could reasonably be presented by the opposing side or the court regarding the completeness, scope, and range of preserved and collected data. Understanding the issues below ensures that you have the answers to discovery-related questions. Document retention policies To effectively assess preservation, you need to understand your client’s document retention policy (or schedule). Determine who, in the client’s business, establishes and enforces the retention policies. Existence and enforcement of policies has a direct impact on the assessment. As a simple example, if a matter potentially involves email communications from seven years ago, and your client has a 3-year retention, several issues are presented:

a.i. Unless all custodians have been on legal hold for the past 4 years, assume there’s no access to all seven years of email.

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 7 of 23 http://www.LegalTechPI.org/ a.ii. Investigate how consistent (“airtight”) the email retention is – i.e. it is actually enforceable and enforced, and account for backup tapes and unauthorized PSTs, backups, and other individualized arrangements

a.iii. Identify which custodians are on prior legal holds and which are not

a.iv. If there is a mix of custodians on hold or not, be sure there’s a consistent and reasonable approach to email preservation and collection

a.v. Investigate if potentially relevant emails are available elsewhere (i.e. have been saved in a different format in a non-email location or repository).

Data / Network maps Not all companies have a network or “data” map, but they are helpful when available. While not replacing custodian interviews and general questions, they do provide a guide of data locations, applications/databases, and administrative owners who can provide information on the data contained therein. Note that data maps are a living document and may not represent an exhaustive list of data repositories.

Geography and locations Understanding the physical location of your client’s offices is crucial for various reasons pertaining to the notions of proportionality and reasonableness. Do not assume that your client is fully up to date with their technology or that all their electronic data is available via a network interface. Travel to remote locations, globally, is frequently needed to assess/preserve/collect potentially relevant data, especially for paper documents. Note that different countries have different rules in place regarding data transfers. Understanding and identifying any potential duplicative data that is more accessible is part and parcel to a meaningful meet and confer.

Key Custodians of Potentially Relevant Information Note that data, in any organization, may be under individual (custodian) control or reside in a system managed by an ESI source manager. In any matter, Counsel needs to identify and understand who the custodians of the matter are, including individuals and ESI source managers. Depending on the scope of the case and the substantive issue, these items need to be considered:

i. Identify “core” or “key” custodians and non-custodian ESI sources (for example, the email system) vs. those on the periphery. If a large number of custodians are at issue, decide whether a “rolling production” would make sense. Plan to propose a stipulation with the opposing side where data of these core or key sources is produced first.

ii. Identify which custodians are current or former client employees.

iii. Former custodians bring their own challenges –consider if they are US or non-US based. If EU-based, data protection concerns must be addressed when data to be collected contains © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 8 of 23 http://www.LegalTechPI.org/ potential personally identifiable information. Consider whether the former employee’s information is available from a current employee or manager.

iv. Advice from the trenches: Check with General Counsel for any existing legal hold cache of data (See section n, below). Perform exploratory interviews before hold notices are issued in order to limit the number of custodians. Interviews offer an opportunity to learn about the “shadow data” discussed below. Success, here, depends upon your pre-existing level of familiarity with the client and its employees. If working with a new or unfamiliar client, start with a review of organization charts, data dictionaries, and any data maps. Review and assess record retention policies (in or out of date). Ask questions of who was involved. Determine, test, and validate sources and potential departments to see who can be defensibly excluded. If you have the luxury of grabbing some sample data from the time period in question, you can perform some form of text analytics before you go and specify specific custodians. It is always best to leave the org chart question open (as to whom to target for preservation and collection) and instead obtain some documents produced for review to validate assumptions and early stage best-guesses.

Network Servers Consider whether or not documents in a network server are:

a. Business records (or not). Note that some organizations have a Records Management or

b. Information Governance department, software, systems policies, and procedures while others have little or nothing and could not really describe what constitutes a “business record.” Understand where your client is on this continuum.

c. Backed up (how, when, and where

d. Accessible by the named custodians

e. Containers (for example, email files, network drive folders, etc.) of former custodian data.

Email Servers, Local, and Cloud Based Storage Determine which email source is the ultimate and best source to collect from. If you are unclear on this, speak to the business and IT owners who maintain and back up this technology. Understand retention periods and rules for terminated employees. Be prepared to suspend the normal rules.

a. Generally, an email server is a standard data cache to consider, although increasingly companies utilize a repository that houses real-time journaled emails.

b. Check to see if emails are on a user’s LOCAL mailbox that are NOT available on the email server (i.e. Exchange for Outlook, or Domino for Lotus Notes).

c. Cloud Based Email: Email is no longer always stored locally. Some corporations have migrated from physical servers to the cloud. Increasingly cloud based email such as Office © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 9 of 23 http://www.LegalTechPI.org/ 365 and Gmail are the only source of email. If you come across this, determine if the legacy email application is stored elsewhere. It might still be accessible, and it might only exist locally on certain laptops and desktops.

d. Be prepared to collect from all three locations and from archival sources. Be aware that many archival sources require restoration of the data before data can be properly collected.

Cloud Storage Many social media data caches and other items may be stored in the cloud. Ask if cloud storage is internal, external, or serviced by a third party provider. Note that you will need a user’s credentials to download data from a social media site in the absence of a court order granting you access to it. An admin or user should be able to harvest the data in a standard container file (like a ZIP) to preserve metadata for the underlying file. Work with IT and determine if this type of cloud-based data is redundant or more easily accessible elsewhere. Hard Drives Many people utilize their computer’s hard drive as a repository for data which may be automatically backed up periodically when connected to a network. If this is the case, inquire if an appropriate (from a time point of view) copy is available to ease this data from geographically distant custodians. It is unlikely that an entire hard drive needs to be collected; often a more targeted set of folders or documents are more appropriate. Consider whether a “forensic” copy (a “bit for bit” collection) or a “logical” copy which is limited to just active and current data will be collected. This should be discussed and agreed to prior to, and again during, a meet and confer to avoid subsequent challenges to the collection method. Phones, tablets, or other mobile devices In “BYOD” (Bring Your Own Device”) situations where an employee will use a personal device to conduct company business, the key issues are:

a. Is there a formal BYOD policy in place, and is it enforced?

b. What rights does an employer have to access the device contents?

c. Are the contents of the device accessible?

d. EU and Cross-Border Data Protection concerns need to be addressed for any non-US custodian

e. Determine whether the device needs to be searched. Most companies will set their main email servers to be the general repository; if so, data on the device, unless relevant and unique, may not be needed

f. Confirm whether a BYOD device has the ability to download and edit any attachment from a corporate email © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 10 of 23 http://www.LegalTechPI.org/ Backups Inquire about backups for various data sources to understand if there is potentially relevant data that may have been deleted from the active data source. Backup policies are often incorporated into a Client’s Information Governance and Records Information Management programs. Confer with those groups to understand their backup policies and practices. Determine whether the “live” data or a prior (backup) version is appropriate for the request. Consider whether you need to develop information about the backups to support a proportionality argument. Non-company Computers or Shadow IT For convenience and other reasons, employees often skirt corporate security and email best practices by sending corporate data/documents from their personal email to a cloud-based personal email. Similarly, company data is replicated across corporate and personal Box.com or Dropbox.com accounts. Gathering data from a custodian’s personal (or non-work) computer and/or their cloud based email accounts presents challenges to be considered: gaining consent (or potentially requiring a subpoena), a legal hold notice or preservation order, and likely a forensic image and related analysis. Consider, again, proportionality issues.

Advice from the trenches: Do not assume the CIO has all the facts on how IT operates. Shadow IT is real in almost every organization. Do not take things at face value. The written policy is often NOT 100% what is done in real life. Ask “How is it done? Show me.” You need to be able to explain how it is done. You may get burned by opposing counsel if you cannot explain it. If someone is playing “hard to get” with the information, a good approach is to say “You can explain it to me, or you can explain it to the court”. Do your diligence and compare notes across interviews. Try and reveal gaps. Try and find stuff that is not on the formal IT grid. People may blatantly violate the policies and procedures. Be on the lookout for overlooked critical information that shows up later as “not having been produced”. If it is critical that interviewees tell you, they do not tell you, and it gets found out, you will get burned. Often, when outside counsel is interviewing potential custodians, it is best done without in-house counsel present so such conversations can more easily occur. It is much better to find out now rather than in 6 months’ time when under oath in deposition. Legacy Data Consider legacy data as a potential source. Common examples are retired databases or applications for closed businesses or those winding down. Investigate whether an active or current data source contains identical data, and weigh the costs/benefits for attempting to access legacy data. You may need an administrator or someone who was/is familiar with that legacy data source to effectively collect information from it. Proprietary Data Many companies hold proprietary information embedded within their data/documents, or the proprietary information IS the data. Examples could include a software vendor’s product source code or a financial services company’s proprietary formula in a spreadsheet. Unless the proprietary data is the actual subject matter of the dispute, that data will need to be dealt with, identified, and discussed. Moreover, solutions will then have to be provided in order to avoid later problems. An © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 11 of 23 http://www.LegalTechPI.org/ example of a solution would be to provide a spreadsheet with proprietary formulas in an image file or edit the native file with full disclosure and produce as “natively redacted.” Legal Hold caches Many companies who utilize a legal hold software to publish and track their held custodians and data also utilize that tool to store certain documents. Unique and potentially relevant data may reside in your client’s legal holds. In-house counsel should be interviewed regarding the existence and contents of these caches. Archival and ex-employee saved data One of the biggest challenges is to assess which data sources or documents were drafted or worked on by former employees. A first step is to determine if there are any current employees or managers who have active access to this data. Has anyone taken over the former employee’s work as a “successor custodian”? Interviewing these people can help to account for former employee data. Check the Human Resources off-boarding documentation (to the extent it exists) to see if specific files or folders were mentioned as being owned or if the former employee’s manager had or has access to those files. Any “smart” devices You may need to account for data sources that are more cutting edge and less traditional than file shares, email, or applications. Things like the IoT, IoE, iWatches, iPods or media players that can connect to the internet may need to be considered. Depending on the interface and the device, you may need professional assistance to properly collect that data.

Initial Preparatory Calls with Opposing Party a. Note that the recent changes to the Federal Rules further emphasize the importance of addressing the Meet and Confer concerns early in the process.

b. Be guided by any standing orders or local rules that govern the meet and confer process. In the absence of specific guidance, or to supplement it, here are some recommended steps:

i. Before the call, send an initial letter to all parties, stating your conference objectives and expectations. Clarify what each side is contributing to the conversation.

ii. Send briefing notes to each attendee from your party as to why they are attending, what they should be contributing, and what they should refrain from commenting about.

iii. Determine which side is going to be leading. Often times it is the plaintiff – and sometimes this is specified in standing orders. Absent any directions, the plaintiff is supposed to take lead. Often it is the most experienced person who leads. Even with a standing order, if you wait for the other side, waiting can make the conversation more difficult. Typically, those who are familiar with the process define the “playground” and may control the play. © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 12 of 23 http://www.LegalTechPI.org/ iv. Designate the person (merits attorney or eDiscovery person) who shepherds everyone through the process.

v. Determine and document goals

1. Discovery limits

2. Potential discovery problems

vi. If possible, estimate and document number of meetings anticipated. (Set meetings in calendar)

Phase II – Conference Key Consideration: Cooperation Key Participant: Someone to take notes of questions or agreed-to actions and ensure accurate follow up and timeliness Reminder: Determine and understand court rules, as these define what you can agree to

a. Judges rules and standing orders: Check online and then still contact the Judge’s chambers to make sure you have the latest version.

b. Case jurisdiction/Local rules: Check online and then still contact the Clerk’s office to make sure you have the latest version Cooperation a. Collaborative approach required by the rules should be evident throughout the discovery process

b. Approach should be one of reciprocal flexibility even in light of a need for zealous advocacy

c. Discussions of preservation steps and search protocol should happen early on

d. It is important to document what you have achieved and agreed. This will get you a lot further with the client and the court. Document those areas you cannot reach agreement on, and define exactly what is in dispute. Define the dispute well so that, if need be, it can be sent to the court for resolution.

e. Where one party is much more experienced than the other in a given matter, it may be advantageous to you to help educate the other side in order to promote cooperation and push for a more timely and efficient resolution to the matter.

Liaison (optional) what the Liaison should do in the conference; e.g.: “roles” [{

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 13 of 23 http://www.LegalTechPI.org/ In most cases, the meet and confer process will be aided by participation of an eDiscovery liaison(s), as defined in this Principle. In the event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as eDiscovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. Regardless of whether the e- discovery liaison(s) is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:

a. Be prepared to participate in e-discovery dispute resolution; b. Be knowledgeable about the party's e-discovery efforts; c. Be, or have reasonable access to those who are, familiar with the party's electronic systems and capabilities in order to explain those systems and answer relevant questions; and d. Be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.

Proportionality & Costs There have been recent changes to FRCP Rule 26 with a focus on proportionality

a. Monetary cost should always be weighed against importance of information sought;

b. Non-monetary considerations such as societal benefit and non-monetary cost also play a role;

c. Considerations include the amount and nature of claims at issue, the likely benefit of the proposed discovery, potential sharing of costs, and limits on scope;

d. Phasing or staging discovery (see below) allows for concessions to be non-binding and the process to evolve as more information is uncovered.

Phased or Staged Discovery a. Definitions/Scope/Approach At the start of any matter, there is usually no need to go all-in. The scope and size of the matter helps to guide your discovery strategy. Work with your opponent to manage matters with large discovery demands, taking into consideration the burden and costs incurred. Phased and staged (or rolling) productions are two different but useful approaches.

b. Potential opportunities for stipulations to narrow the scope (note that one or many of these suggestions will provide the optimum opportunity to narrow the scope of discovery)

d.i. Work with your opponent to narrow the issues - focus on the higher level issues in the initial production.

d.ii. Do sample coding to get a first pass at prioritization of the initial sets of data to be produced.

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 14 of 23 http://www.LegalTechPI.org/ d.iii. Agree on unique search terms that have a higher potential for returning relevant information.

d.iv. Stipulate a limitation on the initial number of key custodians. (In any case, there will be a split of custodians - those having essential information and those who are peripheral to the case. Either may have relevant information, but go to the lowest hanging fruit first.)

d.v. Stipulate date or timeline restrictions

d.vi. Stipulate as to significant keywords, key metadata filters, domain restrictions, and/or file type restrictions.

c. Timeframes You need to keep these real and defendable. Agreeing to production windows or processing turnaround times without first having consulted the technology team responsible for producing your data is both unwise and could cause you embarrassment if/when they tell you (for good reason) “no”. Never assume.

d. Example of gray area You want access to item X. Item X might be more readily available as an attachment but normally would be stored in location Z along with maybe other content. However, location Z is shut down, so the party says it will have to see if it can get location Z back online but that this will take time and may not be possible - Consider requesting content from an accessible / certain place first rather than an uncertain / inaccessible place. Otherwise, you could be waiting a long time for this data, and you may or may not ever receive it, despite the best of intentions. Preservation & Retention In some situations, it makes sense to initiate this process prior to the Meet & Confer conference.

a. Conference is also an opportunity to address and tailor the scope of preservation

i. Follow-up on any legal hold notice correspondence.

d.vi.1. Different schools of thought regarding need to send or respond to a preservation demand

d.vi.2. While a demand notice might eliminate dispute over when obligation to preserve was triggered, the obligation stems from common law and not a preservation demand

d.vi.3. Trigger and scope are case-specific

ii. Expand/narrow scope of preservation based on negotiation

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 15 of 23 http://www.LegalTechPI.org/ d.vi.4. Opportunity to reach consensus and avoid “gotchas”

d.vi.5. Identify areas where judicial guidance is required

iii. Identify and address unduly burdensome preservation areas

b. Statement to opposing counsel about status of Hold and Preservation Reasonable form for custodial hold notices: Monitor the compliance with the responses. Look at LTPI model ESI Stipulation order language. Consider collection as a method of preservation. Grab what we can from an archive, and move it to a separate safe location, and allow the original hardware to continue its normal business cycle.

c. List of custodians

d. List of non-custodial sources

e. The initial footprint for preservation can be humungous and is not usually baked into a Rule 16 order. While some cases have ongoing preservation obligations (such as anti-trust matters), most do not. Talk with the other side, and ask if they agree whether it makes sense to keep doing active preservation going. Who or what can be released? Learn from your cases, learn where the data sources are, and learn where the redundancy is. Apply this learning to your initial hold. Determine if the current litigation hold can be better refined. Ask: “As time goes on, can we agree to reconvene as the course of preservation may change and there may some be very good reason why we should change who was preserved?” Considerations: A good information governance strategy allows you to shrink this initial footprint.

Analytics & Review Carefully review Sedona Principle 6 which states, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Absent special circumstances, you get to decide how best to meet your discovery obligations, including whether to use Predictive Coding or other analytics in the culling and review phases, and your opponent cannot force you to adopt a certain process or technology. However, in a contentious discovery setting, any doubt your opponent is able to cast upon your process (or technology) could force you to spend precious time and money defending your choices. So, in many situations, you should give great consideration to bypassing the protections of Principle 6 and sharing enough information about your process and technology with your opponent to get consensus. You should document such buy-in either via correspondence or in a court order. If you choose not to share information about your process and technology with your opponent, you will revert back to reliance on Sedona Principle 6. You will be called upon, if sufficiently challenged, to defend your process and/or technology. Accordingly, you should document each phase of the eDiscovery workflow as you accomplish the tasks in it. As always, keep in mind that

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 16 of 23 http://www.LegalTechPI.org/ the ultimate metric of an adequate job in the discovery process is reasonableness, not perfection. At a minimum, you should document:

a. Methods –Select process and technology that are reasonably likely to achieve the desired result. This assumes a competence in understanding, or working with someone who understands, how various search, culling and TAR processes work.

b. Metrics – The effectiveness of a search process can be expressed in terms like precision, recall, and F1. If you have to defend your process, you will want to understand these measurements and how they relate to your universe of ESI.

c. Timing – Many people unfamiliar with IT assume there is an easy way to search for all the requested information. You need to give yourself adequate time to communicate with IT. Identify all sources that you have to go to, and talk with those controlling those systems. Be sure you have enough time to pull the data needed. IT needs to know the scope of what you will require since they have to pull the information in the timeframe provided or available to fulfill requests.

d. Burden / Cost

Production (keep proportionality in mind) Federal rules state clearly what needs to happen. The requesting party may specify the form or forms in which ESI are to be produced and, if the responding party objects to a requested form or if no form was specified in the request, the responding party must state the form or forms it intends to use. (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same ESI in more than one form.

Anything outside of this should be discussed and consented to by both sides.

Review: Committee notes from 2006 Rule 34 are very important - specifically the section about not degrading usability. There is no obligation to upgrade, and you are generally prohibited from downgrading.

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 17 of 23 http://www.LegalTechPI.org/ Review Sedona principle 12, which notes that “reasonably usable form” should take into account the need to produce reasonably accessible metadata that will enable the receiving party to have a reasonable ability to access, search, and display the information, where appropriate or necessary in light of the nature of the information and the proportional needs of the case. What is “reasonably usable” may be, but is not necessarily, informed by the ability of the producing party to use the information. Typically, a requesting party does not need ESI produced in its native format for it to be reasonably usable. Indeed, the most common way to produce ESI for more than a decade has been to create a static electronic image in Tagged Image File Format (“TIFF”) or Adobe Portable Document File (“PDF”) format, to place the extracted text from the document into a text file, and selected metadata and other non-apparent data into one or more separate load files.

a. Discoverables

i. Custodians

ii. Location and types of IT Systems and media

iii. Search terms

iv. TAR

v. Privilege Logs, Waiver, and Clawbacks

b. Schedule

c. Evolution Over Time / Iterative Discovery & Production

d. Method of Production

i. Format

ii. Review platforms

iii. Metadata fields

iv. Paper documents

v. Bates numbering

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 18 of 23 http://www.LegalTechPI.org/ Phase III – Post-Conference (Follow Up) Documentation of proceedings a. Resolved issues

b. Unresolved issues – review any open items with your internal team; make a plan to address these issues

c. Concerns/risks

d. Feedback for client

e. Strategizing to handle the uncooperative opponent

i. If the opponent is uncooperative due to reasonable concerns, make an effort to understand and address their concerns

ii. Consider a compromise for issues on which the parties disagree

iii. Only after documented efforts to work with the opponent should you take the problem to the judge

Preparation of agreements and court filings a. Resolved (to file with court)

b. Unresolved (to take to court for decision)

Calendar alignment for next meetings a. Internal calendar to prepare with the internal team

b. External - with clients

c. External with opposing counsel

Going back to the well: this is an iterative process. Be prepared to revisit and negotiate, especially if things are not quite working as planned. Keep in mind that the other party will be more willing to negotiate if you have been civil and cooperative.

Review any open items with your internal team (items that came up but were not resolved during the conference).

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 19 of 23 http://www.LegalTechPI.org/ © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 20 of 23 http://www.LegalTechPI.org/ Common Pitfalls and How to Avoid Them (Practical Advice) Insufficient preparation for the meeting a. One example of this is using a boilerplate approach to the E-Discovery protocol. Instead, think through what you need to prove your case. Be specific and consider the nuances of this matter and the Client’s systems. b. Have a pre-prepared document that says what you can and cannot do.

Overconfidence in your ability to properly and sufficiently manage the situation: Counsel who feel they can operate independent of the client and only go to the client when they need to OR counsel that fails to have the conversations that they should have had.

Engaging in hyperbole about the requirements and/or the process a. Come with data/metrics; be prepared for the discussions which will support your “asks”. b. Avoid statements like “6 million documents and forever.” You will look unwise when the other side’s expert calls you on it. Instead, meet me half way. c. Avoid being unreasonable. Don’t demand everything. State what you need to prove your case. Conversely, saying the equivalent of “Everything is too hard and too expensive” is unreasonable, and you will get called on it. Costs of review is approaching a historic low. Apply common sense to reduce the cost – fewer custodians, tighter timeframe, etc.

Haphazardly guessing. No party will agree to this, and you should not expose your client, or yourself, to this risk.

Doing a “drive-by” 26(f) with insufficient goals or commitment. Treat this as an obligation you owe your client and the court.

When both parties go in prepared, there is usually a lot more cooperation and productive activity. Try to avoid time wasters, as this leads to contention.

If one side is prepared and the other is not, the other side has to step up, or the court gets involved and it gets messy and expensive.

© 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 21 of 23 http://www.LegalTechPI.org/ © 2016 Legal Technology Professionals Institute, subject to CC BY 4.0 International License. (Version 0.92. Last edited October 18, 2016) Page 22 of 23 http://www.LegalTechPI.org/ Information needed out of preparation sessions

What Information Source Department Who Knowledge about the project Legal In-house project attorneys Merits Attorney Identity of custodians and data Business Units Representative group of day to sources, status changes of either day managers Understanding of Document and Records Management Knowledgeable Managers or data source policies and procedures Senior Managers Understanding of Document and IT Knowledgeable Managers or data source policies and procedures Senior Managers Knowledge of best practices and Legal e-discovery specialists anticipatory challenges based on intimate knowledge of corporate data structure – “translator” for IT team Understanding of policies and Compliance Compliance Officer practices of compliance Data reuse possibilities and multi- Vendor Vendor Project Manager or faceted solutions Account Manager