3 Dale M. Cendali, Amy Longo, and Christine Cwiertny, Electronic Discovery, 797 PLI/Pat

ADDENDUM G References

1 Partner, Adams and Reese LLP, Mobile, Alabama. Ms. Rogers is Team Leader for the Casualty and Coverage Team. Ms. Rogers’ practice involves litigation in both Alabama and Florida State and Federal Courts. 2 Capricorn Power Co. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429, 434 (W.D. Pa. 2004); see also Clark Constr. Group, Inc. v City of Memphis, 229 F.R.D. 131, 136 (W.D. Tenn. 2005). 3 Dale M. Cendali, Amy Longo, and Christine Cwiertny, Electronic Discovery, 797 PLI/Pat 323, 401 (2004. 4 Rambus, 220 F.R. D. at 281. For a discussion of spoliation, see infra page ____. 5 Zubulake, 220 F.R. D. at 217; see also Clark Constr. Group, Inc., 229 F.R. D. at 136. It is important to determine whether your entity is privately held or publicly traded and inquire as to the exchange and/or regulatory requirements affecting your entity when developing a plan. 6 Zubulake, 220 F.R. D. at 217. 7 Id. 8 Id. at 218 (quoting Fed. R. Civ. P. 26(a)(1)(A)) (internal quotation marks omitted.) 9 Id. at 218 (quoting Fed. R. Civ. P. 26(b)(1)). 10 Broccoli v. Echostar Comm, Corp., 229 F.R. D. 506, 510 (D. MD 2005) (citing Arthur Anderson, LLP v U.S., 554 U.S. 696, 704 (2005)). 11 Broccoli, 229 F.R. D. at 510 (citing Thompson v HUD, 219 F.R. D. 93, 100 (D.Md.2003)). 12 Zubulake v. UBS Warburg LLC, 229 F.R. D. 422, 432 (S.D.N.Y. 2000) (hereinafter Zubulake III). 13 Id. at 431. 14 Id. at 432. 15 Id. This involves speaking to the technology personnel and as in Zubulake, requires employees to print out the relevant emails or create a separate folder for the relevant information. Id. 16 Id. at 433. 17 Id. (citing 1966 Advisory Committee Notes to Fed. R. Civ. P. 26(e)). 18 Zubulake, 229 F.R. D. at 433. 19 Id. 20 Id. 21 Id. at 433-34. 22 Id. at 434. 23 Id. 24 Zubulake, 229 F.R. D. at 434. 25 Fed. R. Civ. P. 26(b)(1). 26 Clark Constr. Group, Inc., 229 F. R. D. at 137 (citing Fed. R. Civ. P. 26(b)(1)); see also Harris v. Bornhorst, 513 F.3d 503, 526 (6th Cir. 2008); Coleman v. Am. Red Cross, 23 F.3d 1091, 1097 (6th Cir. 1994). 27 Clark Constr. Group, Inc., 229 F.R. D. at 137. This general rule regarding disclosure of email is implicit in the holdings of other cases. See, e.g., Consolidated Aluminum Corp. v Alcoa, inc., 244 F. R. D. 335, 340-343 (M.D. La. 2006) (recognizing and applying the Zubulake line of cases to a dispute over deleted electronic data and holding, in part, that the defendant failed to preserve relevant emails and other electronic data which the plaintiff sought to have disclosed). 28 Fed. R. Civ. P. 26(b)(2). 29 This leads to the court considering a cost-shifting analysis which will be discussed below. Additionally, where the electronic information is being kept by a third party, the responding party may be tempted to argue that the requested information is simply not within their possession, but this is not advisable. See Tomlinson v. El Paso Corp., 245 F.R. D. 474 (D. Colo. 2007) (in rejecting the responding party’s argument that because electronic information was in the possession of a third party administrator it could not produce the electronic information, the court held that the data was in the responding party’s possession, custody or control as contemplated by rule 26(a)(B)); Columbia Pictures, inc. v Bunnell, 245 F. R. D. 443, 453 (C.D. Cal. 2007) (data that was maintained and processed by a third party is discoverable and must be preserved and produced); in re ATM Fee Antitrust Litig., 233 F.R. D. 542, 545 (N.D. Cal. 2005) (responding party objected indicating that the requested information was held by a subsidiary and request should go to the subsidiary but could held requested data was in the possession, custody and control of the responding party. 30 See Hagenbuch v. 3B6 Sistemi Electtronici Industriali, S.R. L., No. 04 C 3109, 2006 WL 665005 (N.D. III. Mar. 8, 2006) (hereinafter Hagenbuch) (holding that where plaintiff specifically requested identical electronic copies of certain information, the plaintiff was entitled to receive the electronic information in the form requested). But see Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc., 248 F. R. d. 556, 558 (N.D. III. 2008) (recognizing Hagenbuch but stating that because requesting party did not specify the format for production, non-native format was acceptable); and shirly Wiliams, et al., v Sprint/United Management Co., 230 F. R. D. 640, 651 (d. Kan. 2005) (“Emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata[.]”). 31 Hagenbuch, 2006 WL 665005 at *2 (quoting FED. R. Civ. P. 34(b)). Production of documents as they are kept in the "usual course of business" plays a role in many disputes. See, e.g., PSEG Power New York, Inc. v. Alberici Constructors, Inc., No. 1:05-CV-657 (DNH/RFT), slip op. 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007) (in ordering party to reproduce over 3,000 e-mails and corresponding attachments at party's expense of between $40,000 to $200,000, court held the party had not complied with Rule 34(b) because it failed to produce the e-mails in the form they were kept in the ordinary course of business); Eastman Kodak Co. v. Sony Corp., Nos. 04-CV-6095T, 04-CV-6547T, 2006 WL 2039968, at *1 (W.D. N.Y. Jul. 20, 2006) (where documents were accessible, were produced in the form in which they were usually maintained, and either party would need substantial time to correlate the information, court denied motion to compel more specific production); Residential Constructors, LLC v. Ace Prop. and Cas. Ins. Co., No. 2:05-CV-01318-BES-GWF, 2006 WL 1582122, at *2 (D. Nev. Jun. 5, 2006) (fact that documents were produced in form they were kept in the ordinary course of business did not prevent responding party from having to create table of contents for those documents). 32 Id. at *2. 33 Id. at *3. Conversion of documents into the PDF or TIFF format versus simply producing the documents in native format has been a significant source of dispute in the past. Compare Williams v. Sprint/United Management Co., No. 03-2200- JWL-DJW, 2006 WL 3691604, at *7 (D. Kan. Dec. 12, 2006) (allowing production in non-native format), Wyeth v. Impax Lab, Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (production of electronic information in native format not required), and Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006) (same) with Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D. N.Y. 2006) (requiring production in native format) and Nova Measuring Instruments, Ltd. V. Nanometrics Inc., 417 F.Supp.2d 1121, 1122 (N.D. Cal. 2006) (same). 34 Id. 35 In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006); cf. CP Solutions PTE, Ltd. V. General Electric. Co., 2006 WL 1272615 (D. Conn. Feb. 6, 2006). When producing information in electronic format, it may be wise to bear in mind the old bromide, "you get what you give." See OK! Am., Inc. v. Advanced Micro Devices, Inc., No. C 04-3171 CRB (JL), 2006 WL 2547464, at *4 (N.D. Cal. Aug. 31, 2006) (defendant could not complain about the unsearchable format within which plaintiff produced electronic documents because defendant produced its electronic documents in the same unsearchable format). 36 Charles O. Bradley Trust v Zenith Capital LLC, 2006 WL 798991 (N.d. Cal. Mar. 24, 2006). Importantly, requests may at times be for more than production of documents. Parties have requested production of information in the form of entire hard drives or computer systems, and some courts have granted such requests while others have denied such requests. Compare Ameriwood Ind., Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *5 (E.D. Mo. Dec. 27, 2006) (allowing requesting party to obtain mirror images of responding party’s hard drives subject to guidelines set by the court); and Electrolux Home Prods., Inc. v Whitesell Corp., No. 3:05-MC-017, 2006 WL 355453, *2 (S.D. Ohio. Feb. 15, 2006) (upholding order allowing examination of computer system because the order protected responding party’s interests); with Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2006 WL 1000306, at *3 (M.D. Fla. Apr. 14, 2006) (denying request to inspect responding party’s computer system because requesting party could not demonstrate that responding party withheld any relevant information stores on computer); and Advante Int’l Corp. v Mintel Learning Tech., No. C 05-01022 JW (RS), 2006 WL 1806151, at *1-2 (N.D. Cal. Jun. 29, 2006) (denying motion to compel an examination of responding party’s computer system because motion was based on unsubstantiated accusations of discovery misconduct but noting that such an examination may be appropriate upon a showing that the opposing party has deleted electronic evidence). 37 Brian Beckham, Production, Preservation, and Disclosure of Metadata, 7 COLUM. SCI. & TECH. L. REV. 1 (2006). 38 Williams v Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (hereinafter Williams). 39 Metadata can be created for email too. Beckham, supra note 68. 40 Id. (citing David Hricik, The Transmission and Receipt of Invisible Confidential Information. http://www.hricik.com/eethics/2.3.html (2006)). 41 Id. 42 PDF (Portable Document Format) or TIFF (Tagged Image File Format) are electronic files that were "imaged" or converted from their native file format into a static image. Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. TECH. & INTELL. PROP. 171, 182 (2006). Note that this once again goes back to the issue of production of documents in their native format. 43 Id. at 652. But see Kentucky Speedway, LLC v. National Ass'n. of Stock Car Auto Racing, NO. CIV.A. 05-138-WOB, slip op., 2006 WL 5097354, at *7-8 (E.D. Ky. Dec 18, 2006) (declining to follow this statement from Williams). Recent cases indicate the best way to ensure receiving metadata is to specifically ask for metadata in the request. Compare D'Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 48 (D. D.C. 2008) (because requesting party failed to specifically request metadata when requesting business "files," court held that requesting party could not complain about the absence of accompanying metadata) with Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc., 248 F.R.D. 556, 558 (N.D. III. 2008) (court's denial of requesting party's motion to compel for metadata was based, in part, on the fact that requesting party did not specifically ask for - nor even mention - metadata in the request). 44 See e.g., N.Y. Bar Ass'n Comm. On Profl Ethics, Ethics Op. 782 (2004), available at http:llwww.nysba.orglContent/NavigationMenu/Attorney_Resources/Ethics Opinions/Opinion 782.htm; see also Ninth Cir. Advisory Bd., Proposed Model Local Rule of Electronic Discovery, Rule 3, at 5 (May 2004), available at http:llwww.kroIlontrack.com/library/9thCirDraft.pdf. 45 Rule 34 is discussed in further detail above. 46 Prior to the Zubulake line of cases, a line of decisions arising from Concord Boat Corp. v. Brunswick Corp. (Concord I), No. LR-C_95-781, 1996 WL 33347247 (E.D. Ark. Dec. 23, 1996), were viewed as the most comprehensive case law addressing discovery of backup tapes. Grant J. Esposito & Thomas M. Mueller, Backup Tapes, You Can't Live With Them and You Can't Toss Them: Strategies For Dealing With Litigation Burdens Associated With Backup Tapes Under the Amended Federal Rules of Civil Procedure, 13 RICH. J. L. & TECH. 13, *11 (2007) (hereinafter "Backup Tapes"). In Concord Il, No. LR-C95-781, 1997 WL 33352759, at *9 (E.D. Ark. Aug. 29, 1997), the court weighed the potential gain of restoring all backup tapes versus the cost of such a search in ordering the responding party to conduct a search of an active email system but not a full restoration of backup tapes. The Concord line of cases, however, have given way to the more recent Zibulake decisions. Esposito & Mueller, Backup Tapes, supra this note at *13. 47 Isom, Electronic Discovery Primer for Judges, 2005 FED. CTS. L. REV. 1 (2005). 48 (citing No. 98 Civ. 8272, 2002 WL 975713 at*9 (S.D.N.Y. May 9, 2002) 49 Isom, Electronic Discovery Primer for Judges, 2005 FED. CTS. L. REV. 1 (2005). 50 Id. 51 Id. 52 Id. 53 The new proposed rules would lessen the risk and therefore the cost of inadvertent disclosure. Id. 54 Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. TECH. & INTELL. PROP. 171, 182 (2006). 55 In addition to the options presented in Rowe Entertainment, litigants may be offered the chance to stipulate at the outset of discovery to a "nonwaiver" agreement, which they can adopt as a casemanagement order. These agreements allow the stipulating parties to avoid the harsh results of an inadvertent waiver. See MANUAL FOR COMPLEX LITIGATION, FOURTH, § 11.446 Discovery of Computerized Data (2004). 56 205 F.R.D. 421, 425 (S.D.N.Y. 2002). For additional example of an accommodating solution to expensive privilege review, see Hake v. Lincoln County, 246 F.R.D. 577, 579 (W.D. Wis. 2007) (court ordered plaintiff to present search terms for the defendant to use and to share the cost of the search with defendant 50/50, but ordered defendant to bear the entire cost of the privilege review if the defendant chose to conduct such a review). 57 Id. (citing 52 Fed. R. Serv. 3d 168 (E.D. La. 2002)) 58 As two commentators suggest, one preemptive way - although not without risk - of avoiding such expense is to "reduce the accumulation of old backup tapes and keep the volume of backup tapes maintained by the company to the absolute minimum required for disaster recovery purposes." Esposito & Mueller, Backup Tapes, 13 RICH. J. L. & TECH. at *49. 59 Id. 60 For a case finding search terms adequate, see In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 WL 2458720, at *2 (N.D. Cal. Aug. 22, 2006). 61 Rowe, 205 F.R.D. at 433. Where a party simply chooses search criteria that is excessively broad, courts have the option of directly ordering the searching party to narrow the search criteria. See Hagemeyer N. Am., Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594, 603 (E.D. Wis. 2004). In the case of a database that is not searchable via search terms, the parties may be required to agree on a plan for pulling samples from the database to determine relevancy of the information in the database. See Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., No. 05 Civ. 9170 RMB JCF, 2006 WL 3771090, at *2 (S.D.N.Y. Dec. 22, 2006). Also, courts may simply provide search terms for a party to utilize. See J.C. Associates v. Fidelity and Guar. Ins. Co., No. 01- 2437 (RJL/JMF), 2006 WL 1445173, at *1 (D.D.C. May 25, 2006). 62 See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978); FED. R. Civ. P. 26; Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 283 (S.D.N.Y. 2003). 63 Zubulake, 216 F.R.D. at 283 (quoting FED. R. CIV. P. 26). 64 Withers, supra note 106, at 182. Inaccessibility has even been viewed as a threshold requirement for determining whether cost-shifting will even be considered. See Peskoff v. Faber, 240 F.R.D. 26, 31 (D.D.C. 2007) ("cost- shifting does not even become a possibility unless there is first a showing of inaccessibility"). Where a party, however, converts electronic information that the party reasonably should have foreseen as discoverable into an inaccessible format, such party may have to shoulder the costs of producing the inaccessible information. See Quinby v. West LB AG, 245 F.R.D. 94,104 (6S.D.N.Y.2006). 65 Id. at 322-323. The court noted that the first two factors (comprising the "marginal utility test") were the most important, the second three factors were the next most important, and the final two factors would rarely make any difference, but could be very important in the few cases to which they would apply. Id. at 323. As far as what costs are shifted once cost-shifting is deemed appropriate, the court in Zubulake III states that generally only the costs of restoration and searching should be shifted. Zubulake III, 216 F.R.D. at 290. For a thorough application of the Zubulake seven factor test, see Quinby, 245 F.R.D. at 106-11. 66 Several cases have adopted a three-part test to decide whether the third party must pay the discovery costs: "whether the nonparty actually has an interest in the outcome of the case, whether the nonparty can more readily bear the costs than the requesting party and whether the litigation is of public importance." E.g., FTC v. US Grant Res., LLC, No. 04-596, 2004 WL 1396315, at *4 (E.D. La. June 18, 2004) (quoting In re Exxon Valdez, 142 F.R.D. 380, 383 (D.D.C. 1992)); In re Seroquel Products Liability Litigation, No. 6:06-md-1769-Orl-22DAB, 2007 WL 4287676, at *3 (M.D. Fla. December 6, 2007). 67 E.g., In Re Honeywell Int'l, Inc. Sec. Litig., No. M8-85, 2003 WL 2272296, at *1 (S.D.N.Y. Nov. 18, 2003). See also Ahner, 2007 WL 2480322, at *6 (ordering third party to produce the requested electronic discovery at its own expense pending a ten day period in which the third party could demonstrate undue burden or expense). 68 E.g., Linder v. Adolfo Calero-Portocarrero, 251 F.3d 178, 179-80, 182-83 (D.C. Cir. 2001). See also Guy Chem. Co. v. Romaco AG, 243 F.R.D. 310, 313 (N.D. Ind. 2007) (stating it would be "fundamentally unfair" to force nonparties to bear the costs of production unless the expense of such production was minimal). 69 See United States v. Premera Blue Cross, No. 1:06MC097, 2007 WL 852080, at *2 (S.D. Ohio Mar. 16, 2007) (ordering nonparty to produce electronic discovery at a minimal expense to nonparty but stating nonparty was to bill plaintiff for cost of production).

70 E.g., In re Application of the Law Firms of McCourts & McGrigor Donald, No. M19-96, 2000 WL 345233, at *3 (S.D.N.Y. Nov. 19, 2001). 71 E.g., In re Honeywell Int'l, 2003 WL 2272296, at *11 resolving motion to compel subpoened electronic documents); Theofel v. Farey-Jones, 359 F.3d 1066 (9t Cir. 2004), cert. denied, 125 S. Ct. 48 (2004) (noting that overbroad subpoena for electronic discovery may violate the Stored Communications Act and the Computer Fraud and Abuse Act). 72 Clark Constr. Group, Inc., 229 F.R.D. at 136 (quoting Zubulake, 220 F.R.D. at 216 (S.D.N.Y. 2003). To establish spoliation, "the movant must show (1) that the adverse party had a duty to preserve evidence and (2) that it nevertheless intentionally destroyed the evidence." Rambus, Inc. v. Infrneon Tech. AG, 220 F.R.D. 264, 281 (E.D. Vir. 2004) (citing Trigon Ins. Co. v. United States, 204 F.R.D. 277, 284 (E.D.Va. 2001)). th 73 Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4 Cir. 2001) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)). 74 Silvestri, 271 F.3d at 590 (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). 75 Silvestri, 271 F.3d at 590. See University of Pittsburgh v. Townsend, No. 3:04-cv-291, 2007 WL 1002317, at *5 (E.D. Tenn. 2007) (lawyer advising client to destroy certain relevant e-mail was inappropriate but was not done with any fraudulent intent, thus no sanctions imposed). 76 McEachron v. Glans, No. 98-CV-17,1999 U.S. LEXIS 21928, at * 3 (N.D.N.Y. Aug. 25, 1999). Similar to this stance, some courts have held that sanctions can be imposed against a party without a showing of bad faith. See United Medical Supply Co. Inc. v. United States, 371 B.R. 823 (Fed. Cl. 2007) (bad faith not a prerequisite to court's exercise of inherent authority to impose sanctions under spoliation doctrine, which was designed to prevent prejudice to one party by another's loss or negligent destruction of evidence). Yet, it may be possible to avoid sanctions altogether if the party facing possible sanctions can show that it made a good faith effort to correct a potentially sanction-warranting mistake. See Crandall v. City of Denver, No. 05-cv-00242-MSK-MEH, 2006 WL 2683754, at *2-3 (D. Colo. Sept. 19, 2006). 77 Creative Resources Group of N.J., Inc. v. Creative Resources Group, Inc., 212 F.R.D. 94, 102 (E.D.N.Y. 2002) (quoting Fed. R. Civ. P. 37(b)). For an example of a court using Rule 37(f) to impose particularly severe sanctions in response to a party's intentional failure to produce important electronically stored information, see Z4 Technologies, Inc. V. Microsoft Corp., No. 6:06-CV-142, 2006 WL 2401099 fE.D. Tex. Aug. 18, 2006). 78 See Lisa Arent et. al, Ediscovery: Preserving, Requesting & Producing Electronic Information, 19 SANTA CLARA COMPUTER & HIGH TECH. L.J. 131 (2002). See also In re Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., No. 06-90026, slip op. 2007 WL 3172642, *7 (Bankr. D. Hawaii 2007) (issuing adverse inference based on responding party's conduct); Doe v. Norwalk Community College, 248 F.R.D. 372, 376 (D. Conn. 2007) (providing three part test for determining whether an adverse jury instruction will be issued); Qantum Communications Corp. v. Star Broadcasting, Inc., 473 F. Supp. 2d 1249, 1270 (S.D. Fla. 2007) (entry of default judgment); In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006) (monetary penalties). 79 Creative Resources Group, 212 F.R.D. at 104. th 80 Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8 Cir. 1988). See also E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588-89 (D. Minn. 2005) (applying these factors and additionally noting that when "the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown ...."). 81 Whiteside v. Watson, 12 S.W.3d 614. 621-22 (Tex. Ct. App. 2000), vacated w.r.m. without opinion. 82 For more cases discussing sanctions imposed for spoliation see Thompson Co. v. General Nutrition Co., 593 F. Supp. 1443 (C.D. Cal. 1984); Thompson v. HUD, 219 F.R.D. 93 (D. Md. 2003). 83 See Nathan Drew Larsen, Evaluating the Proposed Changes to the Federal Rule of Civil Procedure 37: Spoliation, Routine Operation and the Rules Enabling Act, 4 Nw. J. TECH. & INTELL. PROP. 212, 219 2006). 84 Proposed FED. R. Civ. P. 26(b)(2). 85 Proposed FED. R. Civ. P. 37(0(1) & (2). For an thorough critique of the proposed Rule 37 "safe harbor" with accompanying alternative options, see Daniel Renwick Hodgman, A Port in the Storm?: The Problematic and Shallow Safe Harbor for Electronic Discovery, 101 Nw. U. L. Rev. 259, 281-292 (Winter 2007). See also Norwalk Community College, 248 F.R.D. at 378 ("a 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").