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Electronic Discovery
University of Oklahoma College of Law
Gensler, Steven S.

Electronic Discovery
 
I.                   Introduction
a.       Subrin Article- Are We Nuts
                                                              i.      U.S. different than many other countries, adversarial nature of the legal system sometimes accounts for adversarial nature in the discovery process
1.      U.S. lower standard for pleadings places more of the burden on the lawyers to ensure that cases are ran smoothly
2.      U.S. does not have to ability to replace judges with lawyers in the discovery process. Judges step in to regulate and discipline not to conduct
b.      Marcus Article
                                                              i.      Is the litigation system in the US flawed or broken? Time, expense, etc.
1.      There have always been complaints even prior to the e-discovery era
2.      Not broken because every system may be considered “flawed” one cannot cherry pick the good aspects of every other system to point out flaws in our system
3.      Why is discovery so expensive? Great amount of power and discretion is given to lawyers to direct discovery
a.       Judges have no “dog in the hunt”
4.      Discovery should not be a fight it should be amenable
5.      Mechanics of locating and producing massive amounts of electronic data-can you find everything? How much error are we willing to accept?
II.                Review of General Discovery Framework
a.       FRCP 26(a)(1), (d), (f); FRCP 16(b), (c)
                                                              i.      26(a)(1)- required disclosures- intial disclosures
1.      Party must disclose
a.       Name (if known), address and telephone number of each individual likely to have discoverable information and the subject of the discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment
b.      Copy –or a description by caregory and location-of all documents, ESI, and tangible things that disclosing party has in its possession that may support its claims or defenses, unless solely for impeachment
c.       Computation of each category of damages
d.      Insurance agreement
e.       (C) Time for initial disclosures- 14 days after the parties’ rule 26(f) unless set by stipulation or court order
f.       (D)-if party is served or joined at later date after 25(f) conference then must make initial disclosures within 30 days after being served or joined, unless different time set by stipulation or court order
g.      (E) basis for initial disclosures; unacceptable excuses- party must make its initial disclosures based on information then reasonably available to it. Not excused from making disclosures because it has not fully investigated the case
                                                            ii.      (d) Timing and sequence of discovery
1.      Timing- party may not seek discovery until after 26(f)
2.      Sequence- Unless on motion
a.       Discovery methods may be used in any sequence; and
b.      Discovery by one party does not require another party to delay discovery
                                                          iii.      (f) Conference of the Parties; Planning Discovery
1.      Conference timing- parties must confer as soon as practicable, or at least 21 days before a scheduling conference is to be held or a scheduling order due under 16(b)
2.      Conference Content; Parties’ Responsibilities
a.       Parties consider nature/basis for claims and the possibility of settlemtn, arrange for disclosures, preservation issues, and develop a proposed discovery plan. Submit to court a within 14 days after the conference a written report outlining the plan
3.      Discovery Plan-must state views and  proposals on”
a.       Changes in timing, form required under 26(a)
b.      Subjects on which discovery may be needed, whether discovery should be completed in phases or limited and focused on particular issues
c.       Any issues of ESI including form in which it should be produced
d.      Issues of privilege
4.      Expedited schedule
                                                          iv.      16(b) Scheduling Order
1.      District judge or magistrate judge must issue a scheduling order
a.       After receiving the parties report under 26(f); or
b.      After consulting with parties at a scheduling conference or by any other means
2.      Timing-judge must issue as soon as practicable, earlier of 120 days after any D has been served or 90 days after D has appeared
3.      Contents
a.       Required-limit time to join parties, amend pleadings, complete discovery, and file motions
b.      Permitted- May modify (Review remainder of Rules)
b.      When does discovery begin? When the client walks in and presents a problem/other side- when you think that you might get sued
c.       No FRCP for preservation/document retention-this arises from federal common law
                                                              i.      Litigation must be reasonably anticipatedàpreservation of documents may arise prior to the lawsuit
d.      What do you preserve? How do you know what is relevant?
                                                              i.      Some say save everythingàvaries from judge to judge
e.       26(a)(1)-you must give certain stuff to other parties without a request
                                                              i.      Stuff that you are going to use
f.       26(f) requires that the parties have a conference first- this may be done over the phone, formality is fairly lax
                                                              i.      26(f)(1)-meet early, as soon as practicable or in any event at least 21 days before a scheduling conference is to be held or a scheduling order due under 16(b).
                                                            ii.      26(f)(2)- what to talk aboutàbasis for claims and defenses (determines the scope of discovery)
                                                          iii.      26(f)(3)- discovery plan- timing, form of ESI, written and submitted the judge 14 days after the 26(f) conference and in advance of rule 16 conference
                                                          iv.      Judge may limit or expand discovery based on discretion
1.      Judge needs to know 1. The claims 2. Category of case, etc.–>sets up discovery plan
                                                            v.      WHEN IS MORATORIUM LIFTED? Discovery plan lifts the morato

r discovery movant must include certification that movant has in good faith conferred or attempted to confer with opposing counsel.
a.       3(A) Motion to compel discovery
b.      3(B)- motion to compel discovery response
2.      (5) payment of Expenses/Protective Orders
a.       If the motion is granted- court may order the party whose conduct necessitated the motion to pay reasonable expenses
                                                            v.      Remember that judge may expand subject matter of the case
                                                          vi.      What is privilege? Attorney-client, spousal, priest, etc. No list of privilege with in rule 26-cannot be overcome by substantial need/hardship
                                                        vii.      Claim and defense vs. Subject Matter- marginal difference between the two
                                                      viii.      What will stop discovery oppression?
1.      Probably not judicial limits-but depends on individual judges interpretation of the rules-26(b)(2)
2.      Scope of rules will not limit it much (relevant but not privileged)
                                                          ix.      26(g)- Sanctions are rarely used
1.      Signing certifies:
a.       Consistent with rules
b.      Not interposed for an improper purpose
c.       Neither unreasonable nor unduly burdensome/expensive
                                                                                                                                      i.      Duty of “good faith”
                                                            x.      26(c)-Protective Order
1.      Protects from annoyance, oppression, UB, expense, etc.
2.      MUST respond to requests cannot ignoreàan objection is a sufficient response
                                                          xi.      37(a)- Motion to compel discover
1.      Remedy for requesting party
2.      BOTH 26(c) and 37(a) requires parties to confer first
                                                        xii.      FRCP 34- Producing Documents/EDI and tangible things
1.      Request may ask to produce and permit party to inspect, copy, test, or sample items within responding party’s custody or control
2.      Or Permit entry onto land to survey, inspect, measure, etc.
3.      (b) Procedure- contents of the report must
a.       Describe each item or category with reasonable particularity;
b.      Specify a reasonable time, place and manner for inspection and performing the related acts; and
c.       MAY SPECIFY FORM