CASE STUDY: EDISCOVERY IN A CLASS ACTION

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CASE STUDYE-DISCOVERY IN A CLASS ACTION

• Rick Resetaritz
• Assistant General Counsel
• Oklahoma Department of Human Services
• OKDHS Legal Division
• P.O. Box 53025
• Oklahoma City, OK 73152-3025
• [phone]
• email richard.resetaritz_at_okdhs.org

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Case Study E-Discovery in a Class Action

• The Oklahoma Department of Human Services IT
  environment
• 10,364 networked computers including 3200 tablets
• 170 remote site servers
• 150 central servers
• 1 mainframe
• Compliant SACWIS system on an Oracle database

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E-Discovery in a Class Action continued

• 30 TB of ESI
• 3.5 TB of emails on an Exchange platform
• VTS backup for Exchange
• Storage Capacity of 63 TB

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In February 2008, a national advocacy
organization filed a federal civil rights lawsuit
seeking certification of a class of 10,000
children.

• Scope of Preservation
• Stored information in any format which relates
  in any way to child welfare, foster care, child
  care, out-of home care or treatment for children
  in legal custody of OKDHS, or child welfare
  management, performance, budgets, audits,
  funding, contracting, organization, operations,
  training, procedures, maltreatment, reporting and
  investigations, and personnel.

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ESTIMATE OF ESI

• 10 TB of potentially relevant ESI on servers and
  individual hard drives
• 2500 ESI custodians
• Other Locations
• Third-Party Vendors (e.g. University of Oklahoma)
• Multifunction printer hard drives
• Fax machine memory
• Smart phone memory

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UNIQUE PROBLEMS

• In ordinary cases, proportionality is a limit
  upon the extent of required expenditure. What
  cost is proportional to civil rights and safety
  of 10,000 children?
• Collection of more than 10 TB of ESI from 2500
  custodians located through the state would be
  cost prohibitive. A decision was made that the
  agency would preserve ESI in place.

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UNIQUE PROBLEMS CONTINUED

• Certain preservation (e.g. metadata, voicemails,
  VTS backup) could not occur without compromising
  the ability to protect children
• Authorized email archiving and e-discovery
  platform had been delayed in procurement process
• Agency could not competitively bid services from
  an e-discovery provider for timely assistance

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UNIQUE PROBLEMS CONTINUED

• Some custodians did not appreciate the difference
  between ESI and paper
• No outside law firm understood the complexities
  of the agencys IT infrastructure

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WHAT WENT RIGHT

• Preparation
• Prompt litigation hold
• Communication
• Snapshot
• Preserve in place

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WHAT WENT RIGHT continued

• Evaluate collection tools
• Arrangement for Culling and Searching through
  E-Discovery Vendor Retained by Counsel
• Multiple 26(f) Conferences from April through
  June
• Active Monitoring
• Cooperation

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PROBLEMS

• Length of procurement process delayed needed
  software
• No means of timely procurement of e-discovery
  provider
• Lack of central archiving left e-mails scattered
  in thousands of locations
• Discovery of unknown caches of various reports
  and small Access databases

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PROBLEMS continued

• SACWIS is not designed for e-discovery
• Logistics of collection
• Cost and Budgeting
• Records retention schedule did not mention
  certain ESI

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LESSONS

• A unified IT/Legal team is essential to all
  e-discovery
• Provider contracts and e-discovery software need
  to be in place
• Prepare and plan for the 26(f) conference(s) from
  the beginning
• Prompt preservation and productive 26(f)
  conferences are critical

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LESSONS continued

• E-discovery requires a conceptual leap from
  thinking in paper
• E-discovery is a continuous process that must be
  actively managed
• E-discovery is a critical new role for IT
• Adversarial approaches to e-discovery are
  counterproductive

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POTENTIAL COST SAVINGS IN THE 26(f)

• Seek production in a form and schedule that can
  be produced internally
• Resume recycling of back up tapes
• Agree not to require bit-by-bit imaging for
  preservation
• Agree not to seek metadata
• Separate production of ESI from production of
  paper documents by limiting requests for
  production to search of paper files and
  conducting a single search for ESI according to
  an agreed procedure

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POTENTIAL COST SAVINGS IN THE 26 (f) continued

• Agree on a common search methodology (e.g.
  keywords) and production format or formats
• Agree to limit dates of preservation
• Agree to limit number of custodians
• Agree to ESI categories to be preserved from
  these custodians for this period emails, email
  attachments, databases, Word files, Excel
  spreadsheets

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POTENTIAL COST SAVINGS IN THE 26 (f) continued

• Agree on any cost allocations and schedule of
  production
• Encryption of files in transit
• Agree on entry of an order for post-production
  assertion of privilege

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AVOIDING CLAIMS OF SPOLIATION

• Update records schedules to comply with Records
  Management Act
• Engage in litigation readiness planning
• Issue a detailed written litigation hold as a
  standard practice
• Decide how far you should proceed in preservation
  of ESI
• Monitor the litigation hold
• Interview key custodians as to where ESI may
  exist.
• Act reasonably and in good faith with good
  documentation.

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AVOIDING CLAIMS OF SPOLIATION continued

• In the absence of agreement, obtain protection
  from the Court in the form of a protective order
  for preservation demands which are unreasonable
• In the absence of agreement, have a defensible
  approach
• Concentrate on emails, active data, and databases
• Be aware of automatic deletion, default settings,
  procedure for departing custodians, procedure for
  repair, re-imaging, etc.
• In appropriate cases, impound and replace hard
  drives
• Do not narrow preservation until 26 (f) conference