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By Elizabeth Ozmun,
Ediscovery Lessons Learned from AMD v.
Advanced Micro Devices,
(AMD) and Intel Corporation (Intel) are the only major purveyors of x86 microprocessors,
the “brains” of almost every computer in the world.
on which the productivity of virtually all business relies.
In the early 2000s,
AMD and Intel exchanged repeated allegations and denials about unlawful Intel monopolistic activities.
the Japan Fair Trade Commission ruled that Intel had violated Japan’s antitrust laws.
asserting civil claims under US antitrust laws.
ACC Docket 67 September 2010
case law is now replete with claims of purported preservation failures involving electronic evidence.
It doesn’t take a cynic to suspect that not all of these assertions are tethered to a genuine belief of actual preservation breakdown.
Counsel for some litigants,
will pounce on any perceived or even David Herron is a partner in the Los Angeles office of non-existent preservation deficiencies to O’Melveny & Myers LLP and is chair of the firm’s Electronic run up costs or achieve another undue Discovery and Document litigation advantage.
He focuses on ediscoveryrelated litigation and counseling. Herron can Anyone who has tried to design,
be contacted at [email protected] implement and monitor an ironclad James Pearl is a partner in the evidence program knows well that Century City office of O’Melveny successfully achieving this goal can be & Myers LLP and a member of the firm’s Business Trial and challenging and expensive.
The risk of Litigation and Antitrust and possible failure is high and potentially Competition Practices.
He focuses on antitrust,
entertainment and general case-altering.
The costs of defending business litigation.
Pearl can be contacted at against charges of evidence [email protected] tion impropriety — that is,
the cost of “discovery into discovery” — can be phenomenal.
Yet the law unquestionably places the burden of compliance squarely on corporate in-house counsel and What you should know about evidence preservation their outside lawyers.
And these tough economic times The evidence preservation,
collection and production have squeezed litigation budgets microscopically thin,
thus challenges posed by AMD v.
Intel were daunting,
even unputting a premium on cost-effective,
defensible evidence precedented.
it is hardly surprising that this case the outset of litigation matters more now than ever before.
spawned evidence preservation issues — and claims and We examine some of the evidence preservation issues counter-claims of evidence spoliation — that produced that arose in litigation,
and which corporate counsel may (some might say,
case-within-a-case confront in almost any case.
array of cutting-edge evidence preservation issues took Intel might offer guideposts to the wary and useful practice turns under the bright lights of the ediscovery stage.
Facing points for the in-house ediscovery practitioner.
an evidence spoliation adverse inference jury instruction,
A brief history of AMD v.
Intel on top of billions of dollars of potential antitrust damages,
the recall the Cold War-era “red telephone” that directly tied evidence preservation warfare that erupted was intense,
the White House and the Kremlin and was designed to withering and woefully expensive for both sides.
Every piece of big-case litigation AMD and Intel settled their dispute in November has its red telephone equivalent,
less than five months before trial and just a matter lead trial counsel of the warring factions.
Although it is of weeks before the decision on the AMD’s then-pending almost always email these days,
the litigation red telemotion asserting Intel’s spoliation of evidence,
and on phone is used only sparingly and,
only when Intel’s competing “sanctions” motion.2 The parties ultimately asked to dismiss these motions in recognition of situation-critical.
the enormous scope and size of their document retention In February 2007,
Robert Cooand productions,
the inherent difficulties those undertakper of Gibson,
sent an email to AMD’s ings imposed,
and each side’s good faith effort to remedilead trial lawyer,
ate any losses that might have ensued.
Intel had detected non-compliance with evidence preservaIntel was not the first case to confront evidence preservation directives by a then-unknown,
tion issues and will most certainly not be the last.
The problems largely cenWhat followed was massive,
worldwide litigation that took five years to conclude.
No one keeps precise records yet on this topic,
but this case also likely became the largest ediscovery case in US civil litigation history: The equivalent of as many as 400 million pages of electronic documents changed hands,
if printed out and laid end-to-end,
would have stretched around the globe — almost three times
the parties collected terabytes of additional electronic data from every imaginable source in the United States and abroad to assess it for relevance
hundreds of employee-custodians from both companies were placed under long-term litigation holds
scores of contract attorneys spent years parsing through the collected data mass
and the evidentiary gems culled from this review were used in more than 300 depositions consuming more than 2,200 hours.
litigation and employment law at Advanced Micro Devices,
where she oversees all worldwide AMD litigation and employment law issues.
and spearheaded AMD’s internal ediscovery effort and preservation program in that case.
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as Intel would later disclose publicly,
were exacerbated by the fact that Intel had neither disabled the “auto-delete” function on its email servers,
nor implemented from case outset a thoroughly-comprehensive back-up tape retention system as a backstop against email loss.
several hundred custodians (more than 375,
as it turned out) had never received litigation hold notices.
The issues were unfolding and dynamic,
and the potential for evidence loss appeared real.
Intel’s remediation plan: Within months,
Intel submitted a court-ordered “remediation plan” that outlined in general terms the apparent scope of data loss and what Intel intended to do about it.
Intel asserted that in the end,
“nothing of any genuine significance will prove to have been lost.” AMD was skeptical.
Intel had in fact preserved a “snapshot” of backup tapes made days after litigation began,
and in November 2005 — five months after the case started — had begun to migrate some custodian email accounts to dedicated servers that were being backed up weekly.
But the combination of Intel’s auto-delete function that purged certain email in as few as 24 hours,
litigation hold notices of questionable comprehensiveness and Intel’s admitted overwriting of some backup tapes,
prompted AMD suspicion of irremediable Intel evidence retention failures.
Intel’s proposed solution was an expensive one.
the initial “snapshot” of its Exchange environment and weeklies of its dedicated email server)
harvest additional data from as many as 1,000 Intel document custodians who were under litigation hold (not all of whom were required by the court’s document production order to actually produce documents)
and create a vast “mush pot” of terabytes of electronic data that would be searched to find documents that a producing custodian should have kept but did not.
This took more than a year to accomplish and,
according to Intel’s public filings,
some $20 million to execute — although the true financial impact was surely much higher.
AMD’s evidence preservation discovery: The court monitored AMD’s discovery into Intel’s preservation failures and,
The first phase was deemed “Remediation Discovery,” and was intended to allow AMD to make a first-blush assessment of Intel’s apparent data loss,
to respond preliminarily to Intel’s out-of-the-box assertion that no evidence of any value had been lost,
and to comment on Intel’s proposed remediation plan.
Intel had proposed to remediate its loss by the only reasonable means then available to it.
AMD asserted then — and later in its evidence spolia
tion motion — that Intel in fact had expunged forever vast (albeit then-unknown) quantities of unique emails material to the litigation.
The second phase of court-sanctioned inquiry was called “Culpability Discovery,” and was intended to allow AMD to plumb Intel’s responsibility,
for its evidence preservation failures.
Intel said that its retention problems were the result of “human error,” the product of in-house counsel’s lapses in oversight and execution caused by the crush of other litigation activities.
This assertion — and the fact that Intel’s in-house counsel helped design and implement Intel’s preservation program — made relevant what in-house counsel did and didn’t do,
Over the course of almost two years,
Intel produced documents,
yielded up its in-house counsel and IT personnel for depositions,
and produced its external ediscovery vendors for both off-the-record interviews and video-taped depositions.
Intel strikes back: Even before it filed its own proposed remediation plan,
Intel launched a searching inquiry into AMD’s preservation program.
The preservation discovery that followed was as thorough and invasive as the court would permit.
While the court dismissed some of Intel’s discovery as Intel simply “fishing for errors,” Intel successfully procured extensive AMD disclosures about its preservation program,
numerous “informal” technical interviews with AMD IT staff and ediscovery vendors,
Intel argued that although AMD had implemented company-wide preservation efforts four months before the case was filed,
had not initiated preservation early enough
that select AMD custodians had themselves not saved all potentially relevant email in the time before AMD implemented an automatic email retention solution known as “journaling” in November 2005,
some five months after the case was filed.
Unknown outcomes: In an attempt to resolve each other’s myriad evidence preservation complaints,
both Intel and AMD made “remedial” document productions designed to cure actual or perceived preservation errors.
costly and daunting preservation discovery battle cleared,
each filed a motion seeking evidence spoliation sanctions against the other.
No one will ever know,
how these motions would have turned out since the parties settled before the court had a chance to decide them.
But we are left with some important lessons learned about defensible evidence preservation protocols and preservation pitfalls to be avoided.
ACC Docket 70 September 2010
ACC Extras on… Evidence Preservation ACC Docket • Why My Human Document Reviewer Is Better than Your Algorithm (May 2010).
Stop relying on document search technology and temporary agencies and take back control of ediscovery. Not only will this eight-step process reduce your costs,
but as your review team becomes better informed,
your litigation strategy will become more effective too.
www.acc.com/humandocrw_may10 • Effective Managment of Litigation Holds and Ediscovery (May 2009).
in-house counsel have adjusted.
Read the answers and applicable best practices to these lingering questions relevant to your company’s legal hold process.
www.acc.com/docket/lithld&edis_may09 • E-Data and Discovery: Protecting Your Company From Avoidable Risk: The Simple Steps That Every Executive Should Know (Jan.
Lack of understanding about data management systems can stand in the way of improving communication between in-house lawyers and IT,
before and after receipt of document requests.
Prepare your organization and avoid potential pitfalls when you respond to an electronic data request.
ACC Alliance • ACC Alliance partner IntraLinks offers corporate legal departments an effective way to manage the exchange and storage of their company’s confidential and sensitive information.
Exclusive discounts are available.
Corporate Technology Counsel for Fios,
discusses the financial crisis,
and impact of litigation on businesses outside the financial
Practical ediscovery considerations Craft defensible litigation hold instructions.
but let’s acknowledge what sometimes happens in practice: When a lawsuit is filed or anticipated,
in-house counsel typically dusts off a litigation hold template or precedent,
makes a few changes to fit the new case (or simply instructs custodians to “save everything”),
and delivers hold instructions to the usual suspects.
so all of this is done quickly,
sector –– focusing on investigation and electronic discovery.
An electronic discovery action plan should be reviewed on a case-by-case basis and tailored for individual clients’ needs,
but the following general guidelines can be applied in nearly any situation.
www.acc.com/quickref/ed-actionpln_mar07 • Top Ten Tips for Corporate Counsel In Dealing with the New FRCP on Ediscovery (Nov.
the amendments to the FRCP forced deep changes in how corporations approach litigation.
collection and production of electronic evidence much earlier during litigation.
www.acc.com/quickref/10tips-frcp_nov06 • Electronic Discovery: Hype,
review and production of information during electronic discovery,
to preserve client confidences and not waive privileged information.
www.acc.com/quickref/edis-hype_sep06 • Ten Tips on Handling Electronic Discovery (Oct.
Review the 10 dos and don’ts of ediscovery.
www.acc.com/quickref/10edtips_oct03 • Discovery in the Digital Age (Jan.
View this guide addressing the evolving legal duties of in-house counsel regarding discovery and computers. It includes overview of the duty to preserve,
and admissibility and authentication.
www.acc.com/quickrefer/disc_digitalage_jan07 ACC has more material on this subject on our website.
where you can browse our resources by practice area or use our search to find documents by keyword.
of analysis about how now might be different than before.
the “usual suspects” may not be everyone who reasonably should be placed under litigation hold.
the spam delivery of instructions that are either unintelligible,
too legalistic or too much trouble to adhere to,
Treat hold instructions with the reverence they deserve.
you must make intelligent effort to assess the claims
stake and the relative importance of elecdvocates for corporate legal MARY MACK,
tronic evidence in arriving at a resolution.
departments have proposed Technology Counsel Fios,
Proportionality has often been forgotten changes to the rules governing [email protected] in the past
it now appears that civil procedure.
there is an existing the judiciary is undergoing an important and overlooked approach to reduce eleccultural shift.
judges may have been waiting for tronic discovery costs available now.
properly formed motions to invoke the proportionality It is well-documented that e-discovery consumes requirement in considering broad discovery requests.
increasing percentages of overall civil litigation costs.
as Federal District Court Judge Judges and legal professionals are exploring various Lee Rosenthal demonstrated in Rimkus,
where she makes initiatives to address the problem,
and several recent explicit reference to the rule and cites proportionality as conferences and rulings have taken up the theme of the decisive factor in determining what is “acceptable” proportionality.
Proportionality shifts attention from the and “reasonable” in “preservation and discovery conduct.” general problem of high-volume,
prohibitively expensive Judge Waxse,
author of several ground-breaking productions to a more focused analysis of whether decisions in e-discovery disputes,
was surprised when discovery costs are proportionate to the value and the he recently re-read the rule and realized it set forth an importance of the case in question.
The American explicit requirement—“the court must”—rather than a College of Trial Lawyers Task Force on Discovery mere recommendation.
Waxse now refers to the propordeclared that,
“Proportionality should be the most tionality provision in the Federal Rules as,
“…probably important principle applied to all discovery.” 1 Federal Rule 26(b)(2)(C)(iii),
the existing procedural rule that the most underused,
valuable rule we have…Judges on addresses proportionality,
is remarkably lucid and robust: their own are supposed to consider this…We don’t need to change the rule
we need to start using the rule.” 2 On motion or on its own,
the court must limit the frequency or What does this mean for corporate legal departments
? extent of discovery otherwise allowed by these rules or by The new emphasis on proportionality has a number of local rule if it determines that…the burden or expense of the practical implications for e-discovery.
Both the number proposed discovery outweighs its likely benefit,
considering and the scope of discovery requests are likely to be the needs of the case,
the parties’ subject to more limits and to closer judicial scrutiny,
the importance of the issues at stake in the action,
discovery process will be increasingly discouraged,
as will the wielding of far-reaching requests as a blunt-force Considerable attention has been paid to the many weapon to compel early settlement.
boilerplate factors contributing to the growing “burden or expense” of requests and universal checklists will no longer pass e-discovery,
yet it is striking in retrospect how quiet the muster.
meaningful cooperation between counjudiciary has been,
about the concept of proportionality as it is appears in the Federal Rules.
and litigants will need to produce accurate,
court-consumable unambiguously states the court must balance the scope documentation as the best means to demonstrate the of proposed discovery against case-specific variables appropriate level of proportionality.
such as the amount of damages and fees in question,
both parties to a case involving large volumes the risks to the parties,
the magnitude of the legal issues at
“Proportionality… probably the most underused,
valuable rule we have.” — Federal Magistrate Judge David Waxse ...........................................
of electronic data will need to undertake a detailed costbenefit analysis early in the litigation process.
risk and disruption of day-to-day business),
and then be prepared to weigh these burdens against the overall value of the case,
the significance of its core legal issues and the anticipated benefits of the requested evidence for its resolution.
Another likely outcome of evoking the proportionality rule is that litigants will be urged to focus initial discovery efforts on the data that appears to be most relevant to
the issues and least burdensome to produce.
in which the scope of each successive effort is narrower and more closely targeted to the key legal issues of the case,
Defensible data sampling and search techniques using tools designed specifically for e-discovery will become increasingly important.
understand these cost drivers intimately.
And a quality vendor won’t hesitate to apply the most precise methods and technologies available to assist in projecting early on what scope of inquiry is reasonable and is proportional to the value of the case.
(See case study sidebar.) So the next time the plaintiff attempts to force early settlement with a broad discovery request,
use proportionality and a trusted e-discovery partner to ensure rationality prevails.
Case Study A large corporation discovered one of its executives did something unethical and potentially illegal.
District Court by a customer in connection with the dismissed executive’s actions in the handling of a product line.
The plaintiff requested that the defendants produce electronic evidence related to all similar matters involving related products at the company.
countered that producing evidence relating to multiple similar product incidents was disproportionate to the value of the case,
which concerned a single customer and a single product line.
including Fios’ proportionality webcast with Judge Waxse,
or to set up a meeting with Mary Mack,
handling e-discovery processing,
hosted review and productions for the defendant,
sampled a subset of the data directly related to the plaintiff’s complaint.
medians and averages pertaining to data volumes were used to project volumes—and costs—associated with expanding discovery to additional matters.
Fios also generated culling reports,
showing drastic reduction in responsiveness when evidence was collected from other custodians.
a random sample of non-hits from the culling process revealed no relevant data was omitted.
All information was included in a formal declaration presented to the court by counsel to demonstrate that requested discovery was disproportionate to the case.
in order to identify with reasonable particularity the documents to be retained.
and you buy yourself a real expense when you later have to collect and review a mass of documents irrelevant to any issue
and the other side will squawk — you may also deprive yourself of evidence needed for your company’s case.
but it deserves due attention at the busy advent of litigation.
you should draft litigation hold instructions in normal-person language.
but your employees aren’t lawyers and legalese is easily misunderstood,
for attention-grabbing reasons,
consider having hold instructions delivered by a high-ranking or well-respected member of management,
since they are more likely to procure
if you truly believe your custodian’s assertions of good faith compliance and doubts can reasonably be resolved against disclosure,
custodian attention and compliance.
avoid the urge to shy away from potential preservation challenges
highlight them and offer useful help.
the company has — as Intel did — a fully-operating autodelete function that it doesn’t intend to disable,
experience teaches that it is best to specifically tell employees about it and instruct them on how they should deal with it.
consider providing custodians the name of a lawyer and an IT professional who have been pre-designated to provide “white glove” preservation assistance when necessary and appropriate.
draft your litigation hold notice expecting that it will be disclosed.
Cases are mixed on whether these communications are privileged or attorney work product.
the parties exchanged litigation hold instructions with the agreement that doing so would not constitute a broader waiver of work product or privilege.
of which is increasingly viewed as non-confidential — or not even as legal advice — is tough.
It’s especially difficult if your judge views it as containing simply “facts” about preservation efforts that the other side deserves to know.
counsel may wish to disclose these notices in order to demonstrate preservation compliance.
and some in-house counsel (since they are human) tend to handle the familiar before dealing with the new and difficult — like those annoying evidence preservation issues.
Who can blame them
? Learning the scope and nuances of the company’s often-complex IT infrastructure and what data is stored where and by what means can be daunting to the uninitiated.
Yet successful preservation programs are those that are initiated promptly,
designed with the input of experienced professionals and implemented with care.
and designating at least one as the legal department liaison to assist in preservation program design and implementation can be helpful.
You will have to learn their language (a sometimes tall task) and cannot permit unintelligible IT-speak to be uttered without cross-examination.
Many have deep experience and while their technical advice is not a sufficient surrogate for the legal advice you must give,
and some sell elixir of questionable curative quality
professed expertise unaccompanied by real-world experience will get you nothing but a bill to pay.