Electronic Discovery
Grossman
Fall 2011
An Introduction to Electronic Discovery: Computers and Complex Information Systems / What is “ESI”?
I. Types of Electronically Stored Information (ESI)
a. Emails
b. Texts
c. Voicemail
d. Photos and videos
e. Twitter, facebook, etc. posts
f. Computers, phones, x-box, ipod, photocopiers,
II. Electronic discovery difficulties.
a. Volume and location make going through the information very difficult.
b. Information is robust. Even when you press delete, the information may not be gone.
c. Information is fragile. Sent a received dates can be changed. If there is opportunity for tampering, then other side has defense that it wasn’t their information.
d. In this day in age, not doing electronic discovery can be seen as malpractice.
i. However, since it can be costly, you may get informed consent from client not to do e-discovery in certain cases.
III. Stored information act
a. limits the type of information that service providers can provide when subpoenaed.
IV. Ephemeral information
a. Short-lived or fleeting information
b. Can try to get preservation order if you think information will disappear.
V. Asymmetrical discovery
a. When one client has a lot of information (i.e. big corporation) and the other has very little (i.e. plaintiff injured by corps product)
i. Employment cases
ii. Shareholder Cases
VI. See Doc 3 – The principles for e-doc production
a. Principles are not binding and are disagreed on, although they are the commonly agreed on.
b. 5 – Preservation kicks in prior to start of litigation, if you are reasonably aware that there will be litigation. (i.e. a train hits someone and you have a video of it, you must keep it)
c. 10 – Usually the privileged information is not separated from everything else. However, there is an ethical obligation to protect clients by excluding privileged information from production.
VII. Practice tips
a. Know what your judge has decided before. No district court can bind another and these cases rarely go up on appeal.
b. Three rules
i. Whatever you do today will not be decided on, whether it was right and wrong, for two years
ii. If you make a mistake, confess immediately
iii. Don’t piss off the judge.
An Overview of the Pertinent Federal Rules of Civil Procedure and New Jersey Rules of Court
I. The rules don’t always mention technology, they are typically technology neutral.
a. Interpreting statutes can be difficult.
i. Is it hearsay if there is a computer printout of what a declarant wrote? à Yes. The computer is not a person and therefore cannot be deemed a declarant, but a person’s statement on the computer is okay.
b. Rules are not always up to date. Technology is always changing and therefore it doesn’t make sense to create rules around certain types of tech.
II. State Rules
a. Two main differences between NJ rules and FRCPs.
i. No meet and confer under state rules.
ii. No automatic disclosure rule in state courts.
b. No uniformity among states.
c. Fed rules are meant to be substantive and go through congress to be made into law. Look to the advisory notes on Fed rules because that is what is important.
III. Potential Rule Changes
a. Three preservation proposals
i. Specific preservation rule that would lay out specific circumstances for a trigger. Defines scope of what you have to do after trigger occurs.
ii. General description of trigger events. Problem is that it sort of leaves us where we are now and doesn’t add anything.
iii. Back end rule – a sanctions rule that addresses when sanctions can be imposed. Right now the circuits are very different on this, so this would create a uniform set of standards.
1. Government seems to like this one.
b. Probably won’t happen till 2013-2014.
IV. Fed. R. Civ. P. 1 – Scope and Purpose
a. These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
b. Cite to this if you make any motion re: discovery
V. Fed. R. Civ. P. 11
a. Have to have good faith reason to bring a suit. Need to investigate before you bring a suit.
VI. Fed. R. Civ. P. 16
a. (b) Scheduling.
i. (1) Scheduling Order. Except in categories of actions exempted by local rule, the district judge–or a magistrate judge when authorized by local rule–must issue a scheduling order:
1. (A) after receiving the parties' report under Rule 26(f); or
2. (B) after consulting with the parties' attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means.
ii. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within the earlier of 120 days after any defendant has been served with the complaint or 90 days after any defendant has appeared.
iii. (3) Contents of the Order.
1. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions.
2. (B) Permitted Contents. The scheduling order may:
a. (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);
b. (ii) modify the extent of discovery;
c. (iii) provide for disclosure or discovery of electronically stored information;
d. (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced;
e. (v) set dates for pretrial conferences and for trial; and
f. (vi) include other appropriate matters.
iv. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge's consent.
to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
3. Specify when there is an email chain that is privileged. Has to be actual legal advice or workproduct for attorney client privilege. Business advice doesn’t count as privileged.
4. If you accidently send privileged information, then you can tell adversary that they need to return/ destroy information. If they have sent it to other people already, then they still have obligation (although there is no clarity as to what do in this case).
5. Fed. R. Evidence 502– Goes along with 26(b)(5)
a. Deals
b. Got rid of subject matter waiver
c. The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
d. (a) Disclosure made in a Federal proceeding or to a Federal office or agency; scope of a waiver.–When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
i. (1) the waiver is intentional;
ii. (2) the disclosed and undisclosed communications or information concern the same subject matter; and
iii. (3) they ought in fairness to be considered together.
e. (b) Inadvertent disclosure.–When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
i. (1) the disclosure is inadvertent;
ii. (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
iii. (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
