Small et al v. University Medical Center of Southern Nevada

Filing 154

SPECIAL MASTER E-DISCOVERY ORDER. Signed by Special Master Daniel B. Garrie on 03/17/2014. (Copies have been distributed pursuant to the NEF - AC)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DANIEL SMALL, et al.,

:
Plaintiffs,
:
:
vs.
:
:
UNIVERSITY MEDICAL CENTER OF
:
SOUTHERN NEVADA
:
Defendant,
:
_________________________________________ :

Case No. 2:13-cv-00298-APG-PAL
SPECIAL MASTER
E-DISCOVERY ORDER

The Special Master attended a conference in chambers with counsel regarding ESI
matters commencing at 10:27 a.m on the 10th day of March, 2014. Present on behalf of
Plaintiffs were Douglas Forrest and Bruce Pixley. Joe Edmondson, Ernie McKinley and Doug
Spring were present on behalf of Defendant.
The court and the Special Master had extensive discussions with counsel, the parties
representatives, and consultants regarding UMC’s ESI collection and production issues, as well
as UMC’s efforts to preserve discoverable materials pursuant to the Plaintiffs’ litigation
hold/preservation letters. The court conveyed serious concerns about UMC’s compliance with
its preservation duties, the manner in which it collected and produced discoverable ESI and its
compliance with the court approved ESI protocol. Following this informal hearing the court
issued an order on the 14th day of March, 2014 that further defined the scope and duties of the
Special Master. See Order (Dkt # 152) (defining scope and duties of Special Master).
HEARING DATES
The Special Master offers the following dates for the next two hearings: March 28th,
March 31st , April 4th , or April 7th. The Special Master requests that the parties select from the
above three dates that will work by end of day March 19, 2014, and send this information to the
Special Master. If this is not possible, then the Special Master will order the parties to be
available for a telephonic hearing on Tuesday, March, 20, 2014 at 10:30am PT for 30 minutes to
resolve scheduling issues.
All hearings will be held at the Las Vegas court house with a court reporter present unless
the parties agree a court reporter is not necessary. The Special Master will coordinate with the
court to confirm space is available.
All hearings will start at 9:00am PT. For the first and second hearing the Special Master
expects the hearings to be at least six hours. The Special master orders the parties to be
PREPARED and their ESI EXPERTS TO BE AVAILABLE either by phone or in-person.
The Special Master orders the parties to provide all materials to be discussed at the
hearing 24-hours prior to the hearing.

FIRST HEARING
In the first hearing, the Special Master intends to cover several issues, including the
following:
 Verify that UMC on-going preservation efforts are in compliance with the
litigation hold/preservation letters sent by Plaintiffs’ counsel.
 Detailed review of the ESI collected by UMC to date that is in Joseph
Edmondson’s possession.
 Results of UMC efforts to resolve the errors with the initial data collected.
I.

VERIFY UMC ON-GOING PRESERVATION EFFORTS ARE IN
COMPLIANCE WITH THE LITIGATION HOLD/PRESERVATION
LETTERS SENT BY PLAINTIFFS’ COUNSEL.

The Special Master seeks to verify that UMC is properly preserving potential ESI
relevant to the parties’ claims and defense in this matter and is in full compliance with the
litigation hold/preservation letter sent by Plaintiffs’ counsel on a going forward basis.
The Special Master orders the parties to provide the following information at the date setforth below where no date and time is specified the parties are to provide the information 24
hours prior to the first hearing.
1. UMC Policies: UMC is to provide data-backup and disaster recovery policies and the
details of software and hardware used in this effort currently and for the time period
in question. UMC is to also identify the IT individual responsible for these systems
and make said individual available for the first hearing. If this individual is not
available for the first hearing, the Special Master requires a declaration from this
individual that details the software, hardware, policies, and practices for data-back
and disaster recovery today and for the time period governing this dispute.
2. Custodian Interviews: UMC is to provide to the Special Master for in-camera review
the custodian interviews of the five initial custodians on or before the end-of-business
on the 22nd day of March, 2014. If this information was not collected by UMC or
Counsel, the Special Master orders UMC to collect this information, using the
custodian interview template attached to this order, and provide the results to the
Special Master 48 hours prior to the first hearing. See Exh. A (“Custodian Interview
Forms).
3. On-going Preservation Efforts: UMC is provide a data-map of the ESI involved in
this litigation for in-camera review on or before the 23rd day of March, 2014. If no
data-map exists, then the Special Master orders UMC to explain why no ESI datamap exists and how Counsel for UMC educated themselves about UMC’s
information and record keeping systems. At the first hearing, UMC should be
prepared to discuss the steps UMC took to preserve each ESI repository identified in
the custodian interviews. In addition, UMC should be prepared to discuss what
technical problems it encountered in preserving this data and to the extent that data
that should have been acquired, was not.
4. UMC Initial Collection: UMC will bring to the first hearing an IT individual that can
access UMC systems and demonstrate to the Special Master that the ESI is being
preserved – including mobile devices. See JOINT STATUS REPORT (Dkt # 128)
(discussing statements by Defendant as to the initial work performed by UMC’s ESI

contractor and the oral statements made by the UMC CIO that an internal UMC
employee performed the collection at the hearing on the 10th day of March, 2014. If
no such individual is available or UMC systems do not allow for remote verification,
UMC is to notify the Special Master in writing on or before the 23rd day of March,
2014. The Special Master orders UMC to be able to discuss a viable alternative
mechanism that achieves the same result at the first hearing.
The intent of the work set-forth above is to verify for the court that UMC is properly
preserving potential ESI relevant to the parties’ claims and defense in this matter and is in full
compliance with the litigation hold/preservation letter sent by Plaintiffs’ counsel on a going
forward basis. In addition, the Special Master will use this information in making a
determination as to the completeness of UMC initial collection, preservation, and production.
II.

DETAILED REVIEW OF THE ESI COLLECTED BY UMC TO DATE THAT
IS IN UMC AND JOSEPH EDMONDSON’S POSSESSION.

The Special Master seeks to determine the completeness of UMC initial collection,
preservation, and production. The Special Master orders the parties to provide the following
information identified below.
1. Chain-of-Custody for Evidence in Joseph Edmonson and UMC Custody: The Special
Master orders UMC to provide in-camera to the Special Master completed Chain-ofCustody for all evidence collected 24-hours prior to the first hearing. See Exh. B
(Law & Forensics chain-of-custody forms part 1 and part 2).
2. UMC Collection Efforts: The Special Master orders UMC to identify the
individual(s) who performed the identification of responsive data and the
individual(s) who performed the collection and make those individual(s) available inperson or over the phone for the first hearing to answer questions, including:
o What criteria was used to identify and distinguish between responsive data
and non-responsive data?
o What audits were performed to confirm that the identification of
responsive data was complete?
o How much total time was spent identifying responsive data?
o Was there any data that was initially identified as responsive that was not
accessible for collection?
o What is the possibility that data that was identified as responsive was not
collected?
o Where there any unexpected logistical issues that prevented the
identification of responsive data from within UMC’s technological
infrastructure?
o Who they received the request to perform the collection?
o Whom did they collect data from?
o What systems/software they collected data from?
o How did they collect the data (e.g., software and configuration of
software)?
o When did they perform the collection?
o When did they receive notice to perform the collection?
o Where there any technical collection failures that occurred.
o Were hash digests generated for the evidence items collected? Has
anyone verified that these hash values are capable of attesting to the
integrity of the data collected?

If the individual(s) is not available to testify at the first hearing, the Special Master orders
UMC to submit a declaration prior to the first hearing that answers the aforesaid
questions, as well as, the additional following information:
 Individuals experience in performing collections.
 Any written records relating to the date the individual received notice to perform
collection.
 The software and version used to perform collection.
 The protocol used to perform the collection.
 The steps taken to preserve the evidence collected including Blackberry personal
device(s) and Blackberry server(s).
 Discussion of any issues that may have arose in performing the collection and the
steps taken to correct these issues.
The Special Master will use this information to verify that UMC did properly collect, preserve,
and search the ESI relevant to the parties’ claims and defense in this matter and that UMC prior
efforts were in full compliance with the litigation hold/preservation letter sent by Plaintiffs’
counsel. The Special Master will also use the information to determine the completeness of
UMC initial collection, preservation, and production.
III.

Results of UMC efforts to resolve the errors with the initial data collected.

The Special Master orders the parties to provide the following information in writing to
24-hours prior to the first hearing.
1. Paraben Software: UMC is to clarify whether the Paraben version used is compatible
with the e-mail boxes that were provided based on published release notes or user
manuals. No more than a single page.
2. Mailboxes Collected: Provide a file list of the e-mail archives collected and provided
for each custodian to the Special Master for in-camera review. The information
should be provided to the Special Master as an Excel file. If UMC not available to
possible the information in Excel format, the Special Master orders UMC to provide
it in whatever format and a written explanation why they were not able to provide as
Excel spreadsheet. No more than a single page. The list is to include technical details
that address the size and quantity of each archive, its respective IT owner, the name
of the e-mail administrator responsible for this archive, and the details of where the
back-ups for each respective archive currently reside.
3. Scan/Repair: The ESI Expert for UMC is to provide a written statement to the Special
Master that details the process and results of the scan/repair effort discussed in the
initial hearing on the mailboxes identified by Plaintiffs’ in the declarations discussed
at the initial hearing. See Pixley Declaration (Dkt #145).
4. Alternative Software E-mail Box Processing Recommendations: ESI experts from
both sides may submit recommendations as to alternative software to process the
UMC e-mail collected. Recommendations are to be limited to two pages and to
include where possible pricing and point of contacts for any software recommend.
Both sides ESI experts should be prepared to discuss any recommendations they
provide at the first hearing.

E-Discovery Playbook: Sample Custodian Interview Form

Witness Interview Outline- General Employee
I.

Preliminary Information
A. Represent [CLIENT]- here to locate and preserve all electronic and hard copy
documents, including e-mail, related to [ACTION] and the devices that are
subject to the action. A more substantive interview may come later.
B. Explain attorney-client privilege-keep discussion confidential; do not discuss case
with others, except the attorneys.
C. Explain outline of the case - concept of what information is relevant in that
context. Include specific discussion of:
1.

Design and development of “Accused Products” cases and display

2.

Sales, marketing, and advertising efforts concerning “Accused Products”

3.

Evidence of profit and/or loss from the brand

D. Explain Preservation Duty
1.
2.

Do you have in your possession any documents or other ESI that may be
relevant?
Discuss steps to preserve documents and ESI

E. Explain upcoming preservation memo and Acknowledgement Form.
II.

Background
A. Obtain Business Card
1. Educational background ____________________________________
2. Length of Employment w/ COMPANY ________________________
a. Title-responsibilities(present and past)

Law & Forensics © 2014.

Exhibit A

E-Discovery Playbook: Sample Custodian Interview Form

3. Identify other people who may have information relevant to these matters:

4. Discuss meaning of documents and electronically stored information. Explain
non-identical documents (including discussion of marginal notes).
III.

Non-Electronic Documents
A. General description of location of non-electronic records or types of nonelectronic records-even if duplicates- that may relate to “Accused Products”

1. Within the above, are there:
a. Documents kept outside office (e.g., home): Yes__
b. Reports: Yes__

No__

No__

c. Presentations from meetings: Yes__

No__

d. Printed emails or other documents: Yes__
e. Calendar entries: Yes__

No__

No__

f. Documentation of discussions: Yes__

No__

g. Meeting minutes where relevant issues discussed: Yes__
h. Marketing materials: Yes__
i.

Advertisements: Yes__

No__

No__

No__

B. Org charts- does department maintain one? Yes__

No__

C. Do you use central or departmental files for work materials (that may relate to
“Accused Products”) Yes__ No__
IV.

General Computing Usage
Law & Forensics © 2012 to 2014.
Page 2 of 9

E-Discovery Playbook: Sample Custodian Interview Form
A. Use a desktop computer? Lap top? ______________________________________
1. How long have you been using this lap top or desk top?
2. When did you get your current device
a. Laptop________________________
b. Desktop_______________________
c. PDA________________________
3. Copy data from last computer onto current? Yes__

No__

4. Who did the migration of the data? __________________
5. What happened to the prior computer?

B. What types of applications do you use?
1. Word-

Yes__

No__

a. Do you track revisions?

Yes__

2. Excel-

Yes__

No__

3. PowerPoint-

Yes__

No__

4. Access-

Yes__

No__

5. Outlook-

Yes__

No__

6. Microsoft project- Yes__

No__

No__

7. Any others that may be used for relevant documents-

Yes__

No__

C. Where do you save your work? (try to record full path of where data is stored)
1. Print out and save paper- Yes__

No__

a. Office file cabinets-

Yes__

No__

b. Central files-

Yes__

No__

c. Other-

Yes__

No__

Yes__

No__

2. On your computer-

a. Hard drive, e.g., C: or network drive names or designations:

Law & Forensics © 2012 to 2014.
Page 3 of 9

E-Discovery Playbook: Sample Custodian Interview Form

b. Your network directory?

c. Shared files space you use?

d. Save in your email folders-

Yes__ No__

(1) Inbox?-

Yes__ No__

(2) PSTs?-

Yes__ No__

Where?

V.

Email:
A. New Policies or Practices
1.

Are you aware of the recent changes in the document retention policies or
practices?

2. What changes were made?

When?

a. Was this the date (03/01/2006) that you had been notified the changes
would be implemented?
Law & Forensics © 2012 to 2014.
Page 4 of 9

E-Discovery Playbook: Sample Custodian Interview Form

b. Were former archive folders and personal folders removed on
03/01/2007? If not, when did this occur?

c. Were all other changes surrounding this new policy implemented in
the same day? If not, how long did it take start to finish?

2. How was it communicated to you?

3. Do you have written communications concerning the new policies or
practices?

4. What did you do to implement the new program?

a. When?
___________________________________________________________
___________________________________________________________
B. How do you organize the emails that you get (that may relate to “Accused
Products”)
Law & Forensics © 2012 to 2014.
Page 5 of 9

E-Discovery Playbook: Sample Custodian Interview Form

1. Do you create folders within your inbox?

a.

Is the process you use much different than what you did under?
COMPANY’s old ESI policy?

2.

a.

Where do you store your PSTs, if any?

Did you ever use PST’s even before the change in COMPANY policy?

C. What are the steps you take on the computer to save your emails?

D. Do you continue to receive emails (that may relate to “Accused Products”)?

Law & Forensics © 2012 to 2014.
Page 6 of 9

E-Discovery Playbook: Sample Custodian Interview Form
E. Are you a member of any email list from which you might receive information
about the “Accused Products”

VI.

Handheld Devices
A. Do you use PDA?

Yes__ No__

B. Do you sync with the office? Yes__ No__
Discuss

VII.

Encryption
A. Ever password protect project work or documents? Yes__ No__
B. Do you encrypt your work?

Yes__ No__

C. How? _________________________________
D. What is your password________________________________?
VIII.

Instant Messaging
A. Do you use instant messaging?

Yes__ No__

B. Have you used IM to communicate about the “Accused Products”?
C. If so, do you save any IM’s (can your IM’s be saved? How? Where?)
IX.

Voicemails
A. Do you keep them?

Yes__ No__

B. Do you have any related to the “Accused Products”? Yes__ No__
If so, when did you receive? Did you save them?
____________________________________________________________________
X.

Removable Media
A. Do you save work on any of the following?
1.

External Hard Drive-

Yes__ No__

Law & Forensics © 2012 to 2014.
Page 7 of 9

E-Discovery Playbook: Sample Custodian Interview Form
2. USB Drive (thumb drive/Flash Drive/memory stick)
3. CD or Floppy?
XI.

Yes__ No__
Yes__ No__

Home or Other Companies
A. Do you work from home or elsewhere using a computer?

Yes__ No__

B. How do you access the office files on your computer?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
C. If so, discuss preservation of home data?
D. Have you saved anything at home related to the “Accused Products”?
____________________________________________________________________
____________________________________________________________________
XII.

Conclusion
Can you think of any other sources that might have any of your information about
“Accused Products” that we have not addressed today?
____________________________________________________________________
____________________________________________________________________

A. Determine the employee’s general relationship to the issues in the litigation.
1. Key – Has significant knowledge of/involvement with at least one relevant
issue:
2. Secondary – Has tangential knowledge of one or more relevant fact;
3. Custodial – No first-hand knowledge of facts relevant to the subject matter of
the action, but has knowledge relating to the location or retention or preservation
of relevant information;
4. No relevant knowledge relating to issues in litigation, including substantive
issues and custodial issues.
CIRCLE ONE:

Key

Secondary

Custodial

No relevant knowledge

B. Future Involvement
1. Active – Is this person still involved with the “Accused Products”
•

Ask custodian to preserve all documentation going forward and advise that we
will be conducting supplemental sweeps to gather additional ESI

2. Historical – Is this person no longer involved in the “Accused Products”
CIRCLE ONE:

Active

Historical
Law & Forensics © 2012 to 2014.
Page 8 of 9

E-Discovery Playbook: Sample Custodian Interview Form
Checklist to Identify Types of Discoverable Digital Information
This checklist will aid Counsel it identifying types of data formats, types of repositories, and
types of often overlooked repositories for ESI.
A. Types of Data Formats
o Identify records created in different applications such as spreadsheet, word processing,
and [SPECIALTY SOFTWARE PROGRAMS]. These may be stored on the hard drive
of a local terminal, exchange servers, USB drives, and backup disks. These records may
reflect, for example, customer lists, financial records, purchase and sales reports, and
personnel files.).
o Identify original documents such as letters, memoranda, and invoices. Of particular
interest are drafts of original documents such as letters or memos. A draft may contain a
line or two discussing potential liability for a course of action that may not be included in
the final letter or memo.
o Computer operation logs recording usage information for instant messenger, shared drive,
user drive, etc.
o Logs and text of email, including ‘trashed’ or deleted messages, and message drafts.
o Logs and text of internal instant messaging service from backup disk.
o Voicemail transcriptions.
B. Types of Repositories
o Databases used by [CLIENT], such as [______].
o Computer programs evidencing a particular process, incorporating specific information,
or demonstrating the use of proprietary methodologies.
o Email servers
o File servers
o Desktops and onsite laptops.
o Home computers
o PDAs
o Shared directories
o Backup disks
o CDs, DVDs
o Cell phones
o Flash memory sticks, thumb drives
o MP3 players
o iPads
o Voice over Internet Protocol (VoIP) phone systems, such as Skype
o Online repositories:
o Corporate workflow programs such as Sharepoint
o Third-party applications such as Google docs, Salesforce.com, Dropbox, etc.
o Third-party email applications, such as Gmail or Yahoo!
o Social networks, such as Facebook, LinkedIn, and Twitter

Law & Forensics © 2012 to 2014.
Page 9 of 9

[Company Collecting]

Case Number#:
Item #:

Evidence Item: ________________
Holding Cabinet Inventory

Evidence Tag ID #:

Individual storing evidence:

Date:

Time:

Name:

ID:

Phone:

Signature:
General Description of This Evidence:

Note: all evidence accepted for storage should be sealed, labeled and initialed in accordance with best
practices for evidence storage.
Status

1

Destination

ID 2 or
Tracking #

Name of Person Initiating This Action

Date

Time

 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External
 Internal
 External

1

“In” when receiving for cabinet storage or “Out” when releasing to investigator or other authorized person.

2

For internal transfers, record ID of receiving person. For external transfers, record receipt or case tracking
number used by outside law enforcement agency (or other) to track their evidence internally.
Law & Forensics © 2014.
High Confidential Information

Exhibit B

Company Name
[Address]
[City], [State] [Zip Code]
[Licenses if any]

Item #
Evidence Tag ID #
___________________
Size of Storage Device

Registration of Physical Evidence
Item # ________________
Case #:
Court Case:
Generic description of
evidence:
Item quantity:
Source of evidence:
Location acquired from:
Identifying details:

Acquired by:

ID: N/A

Date acquired:

Phone:

Time acquired:

Expected Evidentiary Value:

(Pending)
What to look for if further analysis required:

(Pending)
Additional comments:

If item acquired is a storage device include the MD5 hash value for the entire image acquired:

MD5: ______________________________________________________________________________

Individual providing evidence:

Date:

Time:

Name:

ID: N/A

Phone:

Individual receiving evidence:

Date:

Time:

Name:

ID: N/A

Phone:

Signature:

Signature:

Law & Forensics © 2014.
High Confidential Information