Skinner_E-Discovery_Fall_2011
I. Changes to the Rules of Civil Procedure to Reflect ESI
A. Rule 16
1. 16(b)(3)(B)(iii) – Scheduling orders. The scheduling order may provided for disclosure or discovery of electronically stored information.
2. 16(b)(3)(B)(iv) – Privilege. Parties need to discuss and include any agreements concerning claims of privilege and trial-preparation material after information is produced.
B. Rule 26
1. (b)(2)(B) – Need not provide ESI from sources not reasonably accessible due to undue burden or cost. On motion to compel discovery or for a protective order, the producing party must show that the information is not reasonably accessible b/c of undue burden or cost. The court may still order discovery if the requesting party shows good cause considering 26(b)(2)(C).
2. (f)(2) & (3) – (2) Must discuss any issues about preserving discoverable information; and develop a proposed discovery plan (includes ESI). (3)(C) Discovery plan must state the parties’ views and proposals on any issues about disclosure or discovery of ESI, including the forms in which it should be produced.
3. (f)(3)(D) – Privilege and non-waiver agreements. The parties must discuss claims of privilege, including any non-waiver agreements.
C. Rule 33
1. (d) – Can respond to interrogatories by referring to ESI.
D. Rule 34
1. (a)(1)(A) – Testing and sampling. Any party can serve a request on any other party to produce and allow the requesting party to test and sample ESI within the producing party’s possession, custody, or control.
2. (b)(1)(C) – Forms of production. Request for production may specify the form or forms in which ESI is to be produced. (2)(D) & (E) – Procedures. Lay out procedures for responding to a specified form for ESI and producing ESI.
E. Rule 37
1. Sanctions. Safe Harbor Rule (37(e)) – No sanctions for failing to produce ESI lost as a result of the routine, good-faith operation of an electronic information system.
F. Rule 45
1. Subpoenas. Changes in the rules apply to non-parties as well.
II. Characteristics of ESI
A. Recognized by Judicial Committee
1. Volume – Much more volume with ESI than with paper discovery (lots more). More to sift through. Sift→identify→review.
2. Multiple places/locations – same document can be stored in several locations at the same time.
3. Need the application that created it.
4. Metadata – other properties embedded into the document. Document has a story to tell. Privilege and work-product issues.
5. Delete does not mean delete
6. Cost – NOT usually cited as a difference from paper discovery
7. Storage – not recognized by Judicial Committee
8. Organic – documents can be changed. Constantly evolving.
9. Technological advancements
B. Storing ESI
1. Online/local – on your computer and easily accessible
2. Near-line – on a flash drive
3. Offline/remote – magnetic tape stored away from location
III. Preservation of Electronic Information
A. Records Management Policy
1. Arthur Andersen v. United States
a. Shredding documents in accordance with a records retention policy is fine.
b. However, if you reasonably anticipate litigation, you must not destroy potentially relevant documents.
c. Duty to preserve – substantive law (pre-suit). Once you know, or reasonably know about litigation, you must preserve relevant documents.
i. Must send litigation hold letter to client
ii. Data map – shows the flow of information. Counsel needs to know where the data is going.
d. Model for E-Discovery Response Team
2. Rambus v. Inferion
a. Even lawful records retention programs must be suspended or adjusted when litigation is reasonably anticipated and the in-place program runs the risk of destroying potentially relevant information.
b. If you initiate the complaint, the duty to preserve lies on the plaintiff too.
B. Implementing the Duty to Preserve
1. Zubulake v. Warburg (Zubulake V)
a. Preservation obligations: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.
b. Counsel must then oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.
i. Must become familiar with client’s document retention policies and client’s data retention architecture.
ii. Must determine how client personnel retained documents.
iii. Must make some reasonable steps to ensure sources of relevant info are located.
c. Reasonableness of producing ESI is limited to ESI in a party’s
i. Possession,
ii. Custody, OR
iii. Control
d. What must the lawyer do?
i. Issue the litigation hold when litigation is reasonably anticipated (litigation hold letter)
ii. Communicate directly with key players
iii. Instruct employees to produce electronic copies of relevant active files and backup files.
e. Litigation hold letter – no real precedent before Zubulake, but now it is pretty much accepted nationwide.
i. Whether litigation hold letter is privileged
ii. All e-discovery case law accepts a litigation hold letter as a best practice
iii. For clients with a multi-state business, they must tailor their practices to the strictest standards for a litigation hold.
iv. Constitutional issue: Do litigation hold requirements intrude into constitutional right against self-incrimination?
C. Trigger Date
1. Zubulake (IV) –
a. Two primary issues surrounding duty to preserve
i. Trigger date (Date on which duty to preserve attaches) arises when a party knows or reasonably anticipates litigation.
ii. Scope of preservation. As a general rule, a party need not preserve all backup tapes (i.e., those that are inaccessible: maintained for disaster recovery). But a party must also make sure not to destroy unique, relevant evidence that might be useful to an adversary.
b. Summary of preservation obligations
i. Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. Generally does not apply to inaccessible backup tapes used for disaster recover
Chaveriat –
2. Hatfill v. NY Times –
3. Phillips v. Net Blue – plaintiff did not have to preserve links or pictures in emails.
4. Rule 26
a. (a)(1)(A)(2) – A party must produce copies of ESI within its possession, custody, or control that it will use to support its claims or defenses.
5. Rule 34
a. (a)(1) – A party may request another party to produce ESI within that party’s possession, custody, or control.
IV. Data Collection
A. Searching All Appropriate Sources
B. The Role of Outside Counsel
V. Production Issues
A. Rule 34: Form of Production
1. D’Onofrio v. SFX Sports Group – D’Onofrio did not ask specifically for native format, so she got “reasonably usable” format.
2. Forms in which info can be produced
a. Paper
b. Static image – pdf, tiff. OCR capable
c. Load file – static image with specified metadata attached. OCR capable. This is where most people have landed. Most ask for a load file.
d. Native – as user sees it on the application. Difficult to Bates stamp.
3. Rule 34
a. (a) – Can ask for ESI and can test or sample producers data b/f production
b. (b)(2)(E)(i) – A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.
i. Usual course of business = as they appear on the custodian’s computer.
ii. Organize and label = Bates number the documents to match the request.
iii. Need to review before producing…
1. Attorney-client privilege
2. Relevancy issues
iv. Often the producing party will have its own index to know if it complied.
v. Alabama rule makers want to expand form of production to include in the request whether you want usual course of bus. or organize and label.
1. Currently, in AL, producers produce however they want.
c. (b)(2)(E)(ii) – If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
i. Requesting party should specify form for producing ESI.
ii. If request does not specify the form,
1. Producing party must produce it in…
a. form or forms in which it is ordinarily maintained OR
b. a reasonably usable form or forms.
2. (b)(2)(D) – After choosing which form, the producing party must then identify which forms it intends to produce it in before it actually produces.
a. This is so because the form it chooses may not be “reasonably usable” to the requesting party.
3. If parties cannot agree about the form…
a. Requestor will likely file a motion to compel production in the form it wants.
b. Producer will file a motion for a protective order per 26(c)(1) to protect itself from undue burden or expense.
