Proposed New Federal Rules• Meet and Confer• Proposed Rule 26(f):

– The parties shall confer…to discuss any issues relating to preservation, disclosure or discovery of electronically stored information including the form in which it should be produced

Preservation Letter Meet & Confer Motion for Sanctions

The New Trinity of EDD Strategy

The EDD conference is no mere formality

Would you go to a mediation unprepared?Meet & confer merits preparation

• Before the Conference

• At the Conference

• After the Conference

Before the conference: Requesting Party

1. Examine what you already know about the e-evidence• Headers, dates and circulation of key e-mail• Path data on key documents (e.g.,

M://mission/marketing/)2. Know what formats you can manage

• E-mail: paper-like production• Databases, spreadsheets, voice mail: native

production• What about application and system metadata?

Before the conference: Requesting Party

3. Communicate issues to be addressed• What must your opponent know about systems?

• Locations• Operating systems and applications• Back up methods and schedules• Native data formats• Data volumes

• Who should be at the conference or available by phone?

4. Know your client’s system• Anticipate boomerang discovery

5. Do you need EDD expert with you or available by phone?6. Consider use of special master or neutral

Before the conference: Producing Party

1. Know your client’s systems• Back up systems, unit inventory and location, data volumes, e-

mail clients, operating systems, retention policies2. Know what formats you can preserve/produce

• Can you preserve application and system metadata?• Voice mail? IM? Mobile devices?

3. Communicate issues to be addressed at conference• What must your opponent know about their systems?

• Locations• Operating systems and applications• Back up methods and schedules• Native data formats• Data volumes

4. Have an EDD expert with you or available via phone5. Respond to preservation letter

At the conference: Requesting Party

1. Setting the agenda requires preparation• Must know client’s systems, need to research target systems (little

knowledge goes long way in insuring candor)• What are your goals? What do you need? Can you tier or stagger?

2. Address preservation needs and limits• Follow up on preservation letter• Must back up tape rotation be suspended?• Is there a genuine going forward preservation need?• Will periodic (i.e., month end) retention suffice?• What are needs with respect to mobile systems, personal systems?• What about VM, IM, PDA, phone?

At the conference: Requesting Party

3. Designate production formats• File formats• Production media

4. Establish deadlines • As reviewed vs. all-at-once• Seek certification of compliance

5. Forensics• Is forensics an issue? No second chances!• Who are key players? Which systems (home? mobile?

assistants’?)• Who will do acquisition? Be sure everyone agrees on process• Who will act as custodian? Use shared hashes to insure integrity• Cost allocation by agreement?

At the conference: Producing Party1. Know your capabilities

• Can you deliver on everything promised?• Know compliance costs and man hours

2. Clearly establish what need NOT be preserved• Must back up tape rotation be suspended?• Is there a genuine going forward preservation need?• What are needs with respect to mobile systems, personal systems?• What about VM, IM, PDA, phone?

3. Memorialize what’s offered, rejected and agreed upon• Make clear what you’ve offered to preserve• Make clear what you declined to preserve and shift burden to ReqP

4. Forensics• Know key players for forensic imaging• Be wary of forensic preservation

5. Lay the groundwork for cost sharing• Put on notice re: costs and seek cost sharing agreements

• (opportune time, as RP anxious for discovery)

After the conference: Requesting Party

• Memorialize requested, rejected and agreed upon• Report Outcome to the court• Submit Agreed Preservation Order

After the conference: Producing Party

1. Memorialize what’s offered, rejected and agreed upon• Make clear what need not be preserved• Make clear what you declined to preserve and shift burden to ReqP

2. Resist preservation order• Serious sanctions typically follow violation of court’s orders

Tips: Both Sides

1. Consider a worksheet• Remember, it’s still all about the paper trail

2. Consider sampling

3. Glossary• Are both sides using terms with same meanings?:

E.g., copy, clone, image, Ghost, bitstream

4. Memorialize. Memorialize, Memorialize• Put it in writing: every agreement plus declined proposals

Questions?