eric e packel - polsinelli€¦ · employees in several cases involving non-compete covenants and...

Departments

Practice Areas

EducationJ.D., University of

Oklahoma, 1993, with distinction; Recipient, American Jurisprudence Award, Trial Techniques

B.A., University of Kansas, 1990

AdmissionsMissouri, 2000 Oklahoma, 1993

Court AdmissionsU.S. District Court,

District of Kansas, 2000 U.S. District Court,

Western District of Missouri, 2000

U.S. District Court, Eastern District of Missouri, 2005

U.S. District Court, Northern District of Oklahoma, 1993

U.S. District Court, Eastern District of Oklahoma

U.S. District Court,

Trial

Business Litigation Labor and Employment Employment Litigation

[email protected] Kansas City

Phone: 816.360.4249Fax: 816.572.5049

ERIC E PACKEL Shareholder

In his litigation practice, Eric E. Packel primarily focuses on trial work involving labor and employment law. Most recently, he has devoted a significant amount of his practice to representing employers in collective actions brought pursuant to the Fair Labor Standards Act, a topic on which he has also written and lectured. In one such case, he was lead counsel for a company defending a 742 member collective class.

Throughout his career, Mr. Packel has represented employers in numerous discrimination lawsuits in state and federal courts in cases involving Title VII gender discrimination, race discrimination, sexual harassment, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, the Family and Medical Leave Act, the Missouri Human Rights Act, the Kansas Act Against Discrimination, whistleblower claims, and workers compensation retaliation. Mr. Packel has represented management in arbitrations before the Public Employer-Employee Relations Board. He has also represented employers and employees in several cases involving non-compete covenants and non-solicitation agreements.

In addition to employment claims, Mr. Packel has tried cases involving the Freedom of Speech clause of the First Amendment, negligent retention of employees, sexual assault, intentional infliction of emotional distress, products liability, and personal injury in Missouri, Kansas, Oklahoma and Iowa. He has also defended securities brokerage firms before arbitration panels of the National Association of Securities Dealers.

In 2007, Mr. Packel obtained the sixth largest jury verdict in Kansas City-area courts, based upon claims against an employee for breaching fiduciary duties and misappropriating trade secrets.

Memberships and Affiliations

■ Asthma and Allergy Foundation of America, Board Member ■ Board for the Kansas City Business Partnership Initiative Founding Member ■ American Bar Association, Labor and Employment Law Section ■ The Missouri Bar ■ Oklahoma Bar Association, Charter Member, Litigation Section ■ Kansas City Metropolitan Bar Association ■ Human Resource Management Association of Johnson County ■ Society for Human Resource Management ■ Former Ambassador for Treads and Threads, benefiting University of Kansas Hospital

Distinctions

■ AV Rated Martindale Hubbell ■ Recipient of Ingram's 40 Under 40 distinction, 2007

EXPERIENCE

Western District of Oklahoma

U.S. District Court, District of Colorado, 2002

U.S. Court of Appeals, Eighth Circuit, 2002

United States Supreme Court, 2006

Mr. Packel's experience includes:

■ Lead trial counsel in numerous jury trials ■ Recently successfully defeated FMLA class certification ■ Sixth largest jury verdict in 2007 for Kansas City-area courts ■ Currently defending multiple FLSA collective actions ■ Obtained defense verdict in multimillion dollar First Amendment Civil Rights Claim

PUBLICATIONS & PRESENTATIONS

2009 Effective Labor - Management Relations Sponsored by Satellite Broadcasting Communications AssociationPresentation given at the annual National "Sky Forum," a national webinar to satellite companies

2009 The Risk and Reward of Merging Your "Social" and "Professional" LivesSponsored by Kansas City Metropolitan Community College

2009 Your Disabled Workforce - Did You Know You Had One? Satellite Broadcasting and Communications Association Newsletter

2009 Where We Go From Here: Litigation Strategies in Defending Americans With Disabilities Act Amendment Cases and Cases After the Implementation of New FMLA RegulationsSponsored by the Labor and Employment Law Committee of the Kansas City Metropolitan Bar Association

March 2008 FLSA Collective Actions: Time to Bet the Company or Time to Protect the Company?Polsinelli Employment Law Workshop

2007 Employee Privacy in the WorkplacePolsinelli Employment Law Workshop

2006 Employment Law Class and Collective ActionsPolsinelli Employment Law Workshop

April 2006 Defeating ‘Trendy’ Overtime Collective Actions Midwest In-House

2006 Address Sexual Harassment QuicklyThe Kansas City Star

2006 Conducting Proper Investigations Into Fraud, Embezzlement and HarassmentPresented to Kansas Medical Society Annual Meeting

2005 Approaching the ADA from a Different PerspectivePresented to Kansas City Business Partnership Initiative

2004 Trial By Fire: Application of the Fair Labor Standards Act Overtime ExemptionsPresented to American Payroll Association

2003 Managing and Accommodating Employees with Disabilities without Running Afoul of the Law: Update on Recent ADA DecisionsPresented to Council in Education Management

2003 Balancing Employee Privacy Rights with Business NecessityPresented to Council on Education Management

2001 Life in the Trenches: The Truth about Employment Discrimination Cases and How to Avoid ThemPresented to Joplin Chamber of Commerce and Missouri Southern University

2001 Employer Obligations to Military PersonnelUSERRA

2001 Examination of Human Resources Professional in a Mock Trial SettingPresented to Missouri Human Resource Conference

2001 Discrimination in Public Accommodations: An Overview of Title III of the ADAPresented to existing clients

2001 Federal Employment Law and the Ten Elements of an Employment-Related InvestigationPresented to Human Resource Management Association of Johnson County

March 2001 Recent Amendments to the Federal Rules of Civil Procedure and Evidence for Missouri PractitionersPresented to National Business Institute

2001 The Aging Workforce: Legally Attracting and Retaining Older Workers in Today’s Labor Market Presented to Council on Education in Management

2000 Survival Guide to Employment LitigationPresented to Human Resource Management Association of Johnson County

2000 Employer Self-Audits: A Checklist on Employment and Labor Self-Audit IssuePresented to existing clients

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Recent “Litigation Hold” DevelopmentsPresented by: Eric E. Packel

©2010 Polsinelli Shughart PC

What is “Litigation Hold?”

Concerns “duty to preserve” evidenceLetter directing party to segregate and protect from destruction certain documents and data that are, or arguably may be, relevant to a potential or pending litigation, regulatory investigation or audit.

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When is it triggered?

When litigation is “reasonably anticipated”“Reasonable anticipation” is when an organization is on notice of a credible threat that it will become involved in litigation or anticipates taking action to initiate litigation


What is included in a party’sduty to preserve?

Issuance of written litigation hold;Identification of key players;Ensurance that key players’ electronic and paper records are preserved;Cease deletion of e-mail or preserve records of former employees in party’s possession, control or custody;

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What is included in a party’sduty to preserve?

Preserve backup tapes when they are the sole source of relevant information, or when they relate to key players, if the relevant information maintained by these players is not obtainable from readily accessible sources.

Recent Cases

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Pension Committee of Montreal, et al. v. Banc of America Securities, et al.

05 Civ. 9016 (SDNY Jan. 15, 2010)

“By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records will inevitable result in the spoliation of evidence.”



Pension Committee Guidelines:– Dismissal of case if intentional destruction including

wiping hard drives– Adverse inference instruction that facts be deemed

admitted when bad faith– Adverse inference permitting jury to presume that

evidence was relevant and favorable when gross negligence in not preserving

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– “Gross negligence” includes• Failure to collect paper and electronic records from

key players;• Destruction of e-mail and backup tapes


Rimkus v. Cammarata07-CV-00405 (SDTX Feb. 19, 2010)

No adverse inference unless “bad faith”But, jury hears evidence about failure to preserve and decides whether bad faith If jury finds bad faith in destroying/not preserving, then adverse inference that the destroyed evidence was relevant and prejudicial

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What is happening in Kansas and Missouri?

About the Presenter

In his litigation practice, Eric E. Packelprimarily focuses on trial work involving labor and employment law. Most recently, he has devoted a significant amount of his practice to representing employers in collective actions brought pursuant to the Fair Labor Standards Act, a topic on which he has also written and lectured.

Eric E. PackelPolsinelli Shughart PC

Twelve Wyandotte Plaza

120 West 12th StreetKansas City, Missouri

64105816.360.4249

[email protected]

polsinelli.com

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Recent “Litigation Hold” DevelopmentsPresented by: Eric E. Packel

RECENT ESI CASES IN THE DISTRICT OF KANSAS AND THE WESTERN AND EASTERN DISTRICTS OF MISSOURI Eric Packel, Esq.

______________________________________________________________________________

District of Kansas Cases

White v. Graceland College Center for Professional Development & Lifelong Learning, Inc., 2009 WL 722056 (D.Kan.)

FMLA wrongful discharge case in which Plaintiff claimed Defendant decided to terminate her employment after she informed it of her need to take FMLA leave for surgery on July 2, 2004. White at *1. Defendant claimed it had no knowledge of Plaintiff’s FMLA leave at the time of the decision, and that while Plaintiff was absent for surgery of which it was not aware, Defendant realized Plaintiff had falsified company records. Defendant, therefore, decided to discharge Plaintiff for falsifying records.

During the course of the case, Defendant initially produced emails in paper form. The Court then ordered Defendant to produce electronic, native copies of emails and attachments to confirm when emails and attachments were created. Id.

Later, Plaintiff sought to have the Court order Defendant to produce attachments to an email or Defendant’s backup tapes for analysis by a computer expert. Id. Alternatively, she asked for Defendant to provide her expert with access to Defendant’s network or hard drives so the native attachment could be viewed. Id. The Court denied without prejudice to compel production of the emails and attachments with metadata intact pending a computer expert’s advice on the issue. Id. Subsequently, Plaintiff retained an expert to analyze three emails between supervisors and attachments to determine creation dates of materials. Id. at *2. The expert found discrepancies between creation dates and sent dates. Id. The expert stated it was necessary to review the email in the senders’ “sent items” as well as the recipients’ “inbox” to determine when an email was created and transmitted. He also stated that he would need to conduct a forensic analysis of the computer that created the documents and emails. Id. at *3.

Plaintiff thereafter renewed her motion, seeking an order compelling Defendant (1) to re-produce electronic and native copies of three emails and attachments from the “inbox” folders of the recipients; (2) to produce the PST or OST files of Outlook mailboxes that either sent or received the emails; (3) to produce mirror images of the computer hard drives that created any of the documents attached to the emails; and (4) allow Plaintiff’s computer expert to verify the accuracy of system clocks of computers that created the email attachments. Id.

Defendant responded to the motion by explaining that discrepancies between creation dates of email attachments were due to documents being templates which were modified as needed. Id. Defendant also stated that one Vice President’s emails were not available from her

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inbox or “sent items.” Id. Emails which were previously produced concerning that Vice President were found on other employees’ archived and inbox folders. Id.

The Court ordered Defendant to reproduce in native format the emails and attachments from both the email recipients’ inbox folders and the senders’ sent folders. Id. at *4. Even though Defendant attested that one Vice President’s emails were no longer available, the Court still ordered they be produced, stating that Defendant “does not explain why they are not available.” Id. The Court further stated “at this point the Court is left wondering why no emails for Hovland-Saunders [the Vice President] prior to January 1, 2005 are available considering that Defendant’s email is stored on an Exchange server and the same emails were available for [other employees].” Id.

The Court also ordered Defendant to produce the Outlook PST and OST files from executives’ mailboxes for the three emails at issue in their electronic native format. Id. at 6. (A PST file is a personal store folder file in Microsoft Outlook normally stored on the users hard drive. An OST file is a folder file in Microsoft Outlook that is used to save folder information that can be accessed off-line and makes it possible for the user to work off-line and then synchronize changes with the Exchange server they connect.) Id. at *5. Finally, the Court ordered Defendant to allow Plaintiff direct access to the computer hard drives that created or modified the documents attached to two of the emails. Id. at *8.

Summary: In a garden variety wrongful discharge case, the Defendant produced correspondence presumably indicating when it made a decision to terminate Plaintiff’s employment. As recently as 10 years ago, production of hard copies of those documents would have been the end of any discovery issue on the subject. Because of modern computer systems and the discovery of ESI, along with different Courts’ interpretation of the Federal Rules of Civil Procedure’s scope with respect to ESI, the Defendant in this case ended up having to not only produce hard copies of the emails, along with certain electronic access, but then had to provide additional access from the inbox and “sent items” boxes of senders and recipients as well as electronic file folders which connect with Exchange servers.

Speiker v. Quest Cherokee, LLC, 2009 WL 2168892 (D.Kan.)

Plaintiffs, owners of mineral interests in lands containing oil and gas leases owned by Defendant, alleged that Defendant failed to pay proper royalties. Plaintiff sought to represent a class of owners of mineral and/or royalty interests. During the course of the case, Defendant objected to producing certain ESI such as email evidencing the categorization of leases or overriding royalty instruments based on language of royalty clauses. Spieker at *2.

Defendant objected to producing the ESI, and obtained an estimate from a third-party vendor of approximately $82,500.00 to process the volume of requested email files and an additional $38,000.00 to copy the ESI information in TIFF format. Id. (TIFF format refers to graphic file formats for storing bit.mat images with different compression formats and resolutions.) Defendant also estimated attorney fees of $250,000.00 for a “privilege and relevance” review by counsel of the ESI. Id. Defendant also argued that it had recently installed

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software, and that its in-house IT staff had no internal experience in producing ESI in litigation, and therefore was unable to obtain the ESI. Id.

The Court held, “Defendant’s pessimistic arguments concerning its ability to generate the requested ESI materials in-house are not persuasive.…this Court is aware of no case where a party has been excused from producing discovery because its employees have not previously been asked to search for and/or produce discovery materials.” Id. The Court also stated “Defendant’s estimated cost for generating ESI data responsive to Plaintiff’s production requests is greatly exaggerated.” Id.

The Court also dismissed Defendant’s argument that the requested email data was “not reasonably accessible.” Id. at *4. The Court again reasoned that Defendant’s cost estimates were greatly exaggerated and did not meet the definition of being “not reasonably accessible” pursuant to Fed. R. Civ. P. 26(b)(2)(B). Id. Finally, the Court dismissed Defendant’s argument that the requested ESI was cumulative of the vast amounts of other discovery, including electronic discovery, which had previously been produced. Id. The Court’s holdings were largely based upon the premise that “documents and correspondence are powerful evidence and a party is generally entitled to review relevant documents rather than take an opposing party’s word.” Id.

Patterson v. Goodyear Tire and Rubber Company, 2009 WL 1107740 (D.Kan.)

In this case, Plaintiff sought policies relating to employee use of company computers, email storage conventions, electronic media deployment, allocation and maintenance procedures, and personal or home computer usage for work-related activities. Patterson at *5. He also sought back-up tapes containing email and other electronic data from January 1998 to June 2007. Id. Plaintiff waited until three months before the discovery deadline to seek the ESI. This delay prompted the Court to state “this is unacceptable.” Id. at 6. “These issues come before the Court much too late in the process. Had the parties complied with their duties under the District’s ESI guidelines, many – if not all – of these issues could have been addressed in a much more timely fashion, if not avoided altogether.” Id. Nevertheless, the Court ordered Defendant to search back-up tapes for two relevant individuals on three dates, employing the search terms “Michael”, “Mike”, and “Patterson.” Id.

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Cases in the Federal District Courts of Missouri

The caselaw in the Eastern and Western Districts of Missouri on the subject of ESI is much more sparse than it is in the District of Kansas. ESI, however, has been the subject of some discovery disputes in Missouri Federal Courts as well.

Overlap v. Alliance Bernstein Investments, Inc., 2007 WL 5780994 (W.D. Mo.)

In this case, Plaintiff sought to compel Defendant to produce email accounts of all individuals who worked as wholesalers or on any help desk in two of Defendant’s locations, as well as all individuals listed on Rule 26 Disclosures. Overlap at *1. At a hearing on the issue, Defendant provided testimony that its system only contained emails of certain individuals from Defendant who were registered with NASD. Id. Despite this testimony, the Court found that Defendant “has failed to sustain its burden of proving that the electronic documents on the system are not reasonably accessible. [Defendant’s representative’s] testimony established that the electronic documents in C.A.M.M. can be searched, Defendant has the ability to perform these searches in-house and that the actual human time (as opposed to the computer time) required to perform these searches is minimal.” Id. at *2. Further, based upon testimony presented as to how back-up tapes can be searched, the Court ordered Defendant to search backup tapes using certain search terms and produce all emails and attachments responsive to the search. Id. at *3.

Ameriwood Industries, Inc. v. Liberman, 2006 WL 3825291 (E.D. Mo.)

This was a misappropriation of trade secrets, tortious interference, and conspiracy type of case brought by Defendants’ former employers against Defendants concerning their recent formation of a company and alleged improper use of Plaintiff’s computers, confidential files and information. Plaintiff sought to compel Defendants to produce “all computer or portable or detachable hard drives, or mirror images thereof, used by [Defendants] including but not limited to any computer or portable or detachable hard drive in their homes.” Ameriwood at *2. Plaintiff based its motion upon an assertion that Defendants’ former employers forwarded Plaintiff’s customer information and other trade secrets from Plaintiff’s computers to Defendants’ personal email accounts. Id. at *3. Defendants responded that they had already disclosed information and had not refused to search through their ESI for such communications. Id.

The Court noted that some ESI might not be obtained during a typical search, citing the Advisory Committee’s note to Fed. R. Civ. P. 26(f):

Computer programs may retain draft language, editorial comments, and other deleted matter (sometimes referred to as “embedded data” or “embedded edits”) in an electronic file but not make them apparent to the reader. Information describing the history, tracking, or management of an electronic file (sometimes called “metadata”) is usually not apparent to the reader viewing a hard copy or a screen image. Id.

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Defendants also submitted affidavits describing significant costs of copying hard drives, recovering deleted information, and translating the recovered data into searchable and reviewable formats. Id. While the Court found that other deleted or active versions of emails may exist on Defendants computers, it also found that Defendants had established the information was not reasonably accessible because of undue burden and cost. Id. Nevertheless, the Court found that Plaintiff had shown good cause to allow it to obtain mirror images of Defendant’s hard drives, but ordered Plaintiff to incur the costs of doing so. Id. at *5. The Court directed the following procedure for handling the ESI at issue:

1. Plaintiff was to select a computer forensics expert to produce mirror images of all computers and portable or detachable hard drives in Defendants’ possession.

2. Defendants then would make available to the expert at their places of business and residences all of the computer equipment at issue.

3. Within 10 days of inspection and imaging, the expert was to provide the parties with a report describing the equipment Defendants produced and the expert’s actions with respect to each piece of equipment.

4. The expert was ordered to recover from the mirror images all available word processing documents, incoming and outgoing email messages, PowerPoint or similar presentations, spreadsheets, and other files including those which were “deleted.” Id. The expert was ordered to provide the recovered documents in a reasonably convenient and searchable form to defendants counsel along with information showing when files were created, accessed, copied, or deleted. Id.

5. Within 20 days of the receipt of the recovered documents and data, Defendants’ counsel was ordered to review the records for privilege and responsiveness, appropriately supplement responses to discovery, and send Plaintiff’s counsel all responsive and non-privileged documents and information, in addition to a privilege log. Id. at *6.

Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Copyright © 2010 Polsinelli Shughart PC.

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FEDERAL RULES CONCERNING ESI

Eric Packel, Esq.

______________________________________________________________________________

In December 2006, The Federal Rules of Civil Procedure were revised to address numerous ESI issues. The Federal Rules which were amended are Rules 16, 26, 33, 34, 37 and 45. A summary of the electronic discovery amendments is below:

Fed. R. Civ. P. 16(b).

This amendment provides that the District Judge or Magistrate Judge must issue a scheduling order which may “provide for disclosure or discovery of electronically stored information.)” In the District of Kansas, the Court has issued standard guidelines for discovery of ESI, which is contained in these materials.

Fed. R. Civ. P. 26(a).

This amendment adds “electronically stored information” as its own category of information which a party must disclose if the disclosing party has it in its possession, custody or control and may use it to support its claims or defenses.

Fed. R. Civ. P. 26(b)(2).

This amendment sets up a two-tier discovery process for accessible and inaccessible data, and provides procedures for cost shifting on inaccessible data. Fed. R. Civ. P 26(b)(2)(B) states:

Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the Court may nonetheless order discovery from such sources if the party shows good cause, considering the limitations of Rule 26(b)(2)(C). The Court may specify conditions for the discovery.

Fed. R. Civ. P. 26(b)(5).

This amendment allows “clawback” of privileged information which is inadvertently produced.

Fed. R. Civ. P. 26(f).

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This amendment provides that, during the parties’ Planning Conference, the parties must discuss “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

Fed. R. Civ. P. 33(d).

This amendment allows a party, in responding to an interrogatory, to refer to electronically stored information rather than providing a written answer to the interrogatory. Of course, if a party does so, the party must also allow access to the electronically stored information.

Fed. R. Civ. P. 34(b).

This amendment allows a requesting party to specify the form or forms in which electronically stored information is to be produced.

Fed. R. Civ. P. 37.

This amendment provides:

Absent exceptional circumstances, a Court many not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of electronic information system.

This amendment, however, does not relieve parties from their obligations to implement a “litigation hold” once litigation is reasonably anticipated. If a party should reasonably anticipate litigation will ensue, the party should immediately delay routine ESI procedures.

Fed. R. Civ. P. 45.

This amendment allows parties to subpoena ESI.

Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Copyright © 2010 Polsinelli Shughart PC.

1For definitions of terms used in these guidelines, see The Sedona Conference® Glossary:E-Discovery & Digital Information Management (Second Edit ion) athttp://www.thesedonaconference.org/dltForm?did=TSCGlossary_12_07.pdf.

2For a discussion of “form of production,” see Fed. R. Civ. P. 34(b) cmt. to 2006amendments.

THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

Guidelines for Discovery of Electronically Stored Information (ESI)

These guidelines are intended to facilitate compliance with the provisions ofFed. R. Civ. P. 16, 26, 33, 34, 37, and 45, as amended December 1, 2006 andDecember 1, 2007, relating to the discovery of ESI. In the case of any assertedconflict between these guidelines and the above-referenced rules, the latter shallcontrol.

1. Existence of ESI. Prior to the Fed. R. Civ. P. 26(f) conference, counsel should becomeknowledgeable about their clients’ information management systems and their operation, includinghow information is stored and retrieved. In addition, counsel should make a reasonable attempt toreview their clients’ ESI to ascertain the contents, including backup, archival and legacy data(outdated formats or media).1

2. Duty to disclose. Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) must include any ESI that thedisclosing party may use to support its claims or defenses (unless used solely for impeachment). Todetermine what information must be disclosed pursuant to this rule, counsel should review, withtheir clients, the clients’ ESI files, including current, back-up, archival, and legacy computer files.Counsel should be aware that documents in paper form may have been generated by the client’sinformation system; thus, there may be ESI related to that paper document. If any party intends todisclose ESI, counsel should identify those individuals with knowledge of their clients’ electronicinformation systems who can facilitate the location and identification of discoverable ESI prior tothe Fed. R. Civ. P. 26(f) conference.

3. Duty to notify. A party seeking discovery of ESI should notify the opposing party of that factimmediately, and, if known at the time of the Fed. R. Civ. P. 26(f) conference, should identify asclearly as possible the categories of information that may be sought. Parties and counsel arereminded that, under Fed. R. Civ. P. 34, if the requesting party has not designated a form ofproduction2 in its request, or if the responding party objects to the designated form, then theresponding party must state in its written response the form it intends to use for producing ESI.

3For a more detailed description of matters that may need to be discussed, see Craig Ball, Askand Answer the Right Questions in EDD, LAW TECHNOLOGY NEWS, Jan. 4, 2008, accessed onFeb. 1, 2008 at http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1199441131702# and reprintedin these Guidelines with permission at Appendix 1.

4. Duty to meet and confer regarding ESI. During the Fed. R. Civ. P. 26(f) conference, theparties should confer regarding the following matters:3

(a) ESI in general. Counsel should attempt to agree on steps the parties will take tosegregate and preserve ESI in order to avoid accusations of spoliation.

(b) E-mail information. Counsel should attempt to agree on the scope of e-mail discoveryand e-mail search protocol.

(c) Deleted information. Counsel should attempt to agree on whether responsive deletedinformation still exists, the extent to which restoration of deleted information is needed, andwho will bear the costs of restoration.

(d) “Embedded data” and “metadata.” “Embedded data” typically refers to draftlanguage, editorial comments, and other deleted matter retained by computer programs.“Metadata” typically refers to information describing the history, tracking, or managementof an electronic file. The parties should discuss at the Fed. R. Civ. P. 26(f) conferencewhether “embedded data” and “metadata” exist, whether it will be requested or should beproduced, and how to handle determinations regarding privilege or protection of trialpreparation materials.

(e) Back-up and archival data. Counsel should attempt to agree on whether responsiveback-up and archival data exists, the extent to which back-up and archival data is needed,and who will bear the cost of obtaining such data.

(f) Format and media. Counsel should attempt to agree on the format and media to beused in the production of ESI.

(g) Reasonably accessible information and costs. The volume of, and ability to search,ESI means that most parties’ discovery needs will be satisfied from reasonably accessiblesources. Counsel should attempt to determine if any responsive ESI is not reasonablyaccessible, i.e., information that is only accessible by incurring undue burdens or costs. Ifthe responding party is not searching or does not plan to search sources containingpotentially responsive information, it should identify the category or type of suchinformation. If the requesting party intends to seek discovery of ESI from sources identifiedas not reasonably accessible, the parties should discuss: (1) the burdens and costs ofaccessing and retrieving the information, (2) the needs that may establish good cause forrequiring production of all or part of the information, even if the information sought is notreasonably accessible, and (3) conditions on obtaining and producing this information suchas scope, time, and allocation of cost.

4For a detailed discussion on this issue, see Hon. John M. Facciola, Sailing on ConfusedSeas: Privilege Waiver and the New Federal Rules of Civil Procedure, 2006 Fed. Cts. L. Rev. 6(Sept. 2006) at http://www.fclr.org/2006fedctslrev6.htm.

(h) Privileged or trial preparation materials. Counsel should attempt to reach anagreement regarding what will happen in the event privileged or trial preparation materialsare inadvertently disclosed. If the disclosing party inadvertently produces privileged or trialpreparation materials, it must notify the requesting party of such disclosure. After therequesting party is notified, it must return, sequester, or destroy all information and copiesand may not use or disclose this information until the claim of privilege or protection as trialpreparation materials is resolved.

(1) The parties may agree to provide a “quick peek,” whereby the responding partyprovides certain requested materials for initial examination without waiving anyprivilege or protection.

(2) The parties may also establish a “clawback agreement,” whereby materials thatare disclosed without intent to waive privilege or protection are not waived and arereturned to the responding party, so long as the responding party identifies thematerials mistakenly produced.

Other voluntary agreements should be considered as appropriate. The parties should beaware that there is an issue of whether such agreements bind third parties who are not partiesto the agreements.4

5. Duty to meet and confer when requesting ESI from nonparties (Fed. R. Civ. P. 45). Partiesissuing requests for ESI from nonparties should attempt to informally meet and confer with thenon-party (or counsel, if represented). During this meeting, counsel should discuss the same issueswith regard to requests for ESI that they would with opposing counsel as set forth in paragraph 4above.

[February 1, 2008]

APPENDIX 1

Ask and Answer the Right Questions in EDD

Craig BallLaw Technology NewsJanuary 4, 2008

Sometimes it’s more important to ask the right questions than to know the right answers, especiallywhen it comes to nailing down sources of electronically stored information, preservation efforts andplans for production in the FRCP Rule 26(f) conference, the so-called “meet and confer.”

The federal bench is deadly serious about meet and confers, and heavy boots have begun to meetrecalcitrant behinds when Rule 26(f) encounters are perfunctory, drive-by events. Enlightenedjudges see that meet and confers must evolve into candid, constructive mind melds if we are to takesome of the sting and “gotcha” out of e-discovery. Meet and confer requires intense preparation builton a broad and deep gathering of detailed information about systems, applications, users, issues andactions. An hour or two of hard work should lie behind every minute of a Rule 26(f) conference.Forget “winging it” on charm or bluster and forget “We'll get back to you on that.”

Here are 50 questions of the sort I think should be hashed out in a Rule 26(f) conference. If youthink asking them is challenging, think about what’s required to deliver answers you can certify incourt. It’s going to take considerable arm-twisting by the courts to get lawyers and clients to do thismuch homework and master a new vocabulary, but, there is no other way.

These 50 aren’t all the right questions for you to pose to your opponent, but there's a good chancemany of them are . . . and a likelihood you'll be in the hot seat facing them, too.

1. What are the issues in the case?2. Who are the key players in the case? 3. Who are the persons most knowledgeable about ESI systems? 4. What events and intervals are relevant? 5. When did preservation duties and privileges attach? 6. What data are at greatest risk of alteration or destruction? 7. Are systems slated for replacement or disposal? 8. What steps have been or will be taken to preserve ESI? 9. What third parties hold information that must be preserved, and who will notify them? 10. What data require forensically sound preservation? 11. Are there unique chain-of-custody needs to be met? 12. What metadata are relevant, and how will it be preserved, extracted and produced? 13. What are the data retention policies and practices? 14. What are the backup practices, and what tape archives exist? 15. Are there legacy systems to be addressed? 16. How will the parties handle voice mail, instant messaging and other challenging ESI?

17. Is there a preservation duty going forward, and how will it be met? 18. Is a preservation or protective order needed? 19. What e-mail applications are used currently and in the relevant past? 20. Are personal e-mail accounts and computer systems involved? 21. What principal applications are used in the business, now and in the past? 22. What electronic formats are common, and in what anticipated volumes? 23. Is there a document or messaging archival system? 24. What relevant databases exist? 25. Will paper documents be scanned, and if so, at what resolution and with what OCR and

metadata?26. What search techniques will be used to identify responsive or privileged ESI? 27. If keyword searching is contemplated, can the parties agree on keywords? 28. Can supplementary keyword searches be pursued? 29. How will the contents of databases be discovered? Queries? Export? Copies? Access? 30. How will de-duplication be handled, and will data be re-populated for production? 31. What forms of production are offered or sought? 32. Will single- or multipage .tiffs, PDFs or other image formats be produced? 33. Will load files accompany document images, and how will they be populated? 34. How will the parties approach file naming, unique identification and Bates numbering? 35. Will there be a need for native file production? Quasi-native production? 36. On what media will ESI be delivered? Optical disks? External drives? FTP? 37. How will we handle inadvertent production of privileged ESI? 38. How will we protect trade secrets and other confidential information in the ESI? 39. Do regulatory prohibitions on disclosure, foreign privacy laws or export restrictions apply?40. How do we resolve questions about printouts before their use in deposition or at trial? 41. How will we handle authentication of native ESI used in deposition or trial? 42. What ESI will be claimed as not reasonably accessible, and on what bases? 43. Who will serve as liaisons or coordinators for each side on ESI issues? 44. Will technical assistants be permitted to communicate directly? 45. Is there a need for an e-discovery special master? 46. Can any costs be shared or shifted by agreement? 47. Can cost savings be realized using shared vendors, repositories or neutral experts? 48. How much time is required to identify, collect, process, review, redact and produce ESI? 49. How can production be structured to accommodate depositions and deadlines? 50. When is the next Rule 26(f) conference (because we need to do this more than once)?

eric e packel - polsinelli€¦ · employees in several cases involving non-compete covenants and...

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