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1 ELECTRONICALLY STORED INFORMATION AND THE NEW FEDERAL RULES OF CIVIL PROCEDURE REGARDING DISCOVERY By: Robert M. Vercruysse Gregory V. Murray In this digital age, the wary litigator preparing to launch into the discovery phase of a lawsuit, even a seemingly uncomplicated employment action, will encounter three distinct phenomena which can become the litigation equivalent of "Excedrin Headache No. 1." The first phenomenon is the fact that much discoverable information will be located in a variety of electronic media, including network servers, backup tapes, voic and systems, disks, hand-held computerized personal organizers and any number of desktop, laptop and personal home computers used to conduct business. Indeed, one recent study estimates that fully 93 percent of all information generated worldwide in 1999 was in digital rather than paper form. See P. Lyman & H. Varian, "How Much Information?" (Univ. of Calif. 2000). In 2000, it was estimated that as much as 30 percent of the information stored electronically may never be converted into paper form. See C. Giacobbe, "Allocating Discovery Costs in the Computer Age: Deciding Who Should Bear the Costs of Discovery of Electronically Stored Data," 57 Wash. & Lee L. Rev. 257 (2000). This percentage is surely increasing. More recent estimates suggest that as much as 99 percent of all information currently being created and stored is created and stored electronically. The second phenomenon is the volume of electronically stored information ( ESI ) subject to discovery, which can be staggering. is becoming "the principal means of communication in the workplace," with an estimated 6.6 trillion electronic messages generated in this country in See J. Hart & A. Plum, "Litigating the Production of Electronic Media: 'Disk-Covery' Issues for the 21st Century," SG007 ALI- ABA 169 (2001). In In re Brand Name Prescription Drugs Antitrust Lit., 1995 WL , at 1 (ND Ill June 15, 1995), the defendant contended that responding to the plaintiff's document demands would require a review of 30 million pages of data. And according to "How Much Information?" authors Lyman and Varian, the average white-collar worker receives approximately 40 s at the workplace each day, internal corporate communications via intranets is growing by 30 percent each year and 110 million Americans use in the workplace or at home. The third phenomenon is that the cost of identifying, marshalling, reviewing, organizing and producing ESI can be astronomical and can quickly pose a significant financial hardship for even the deepest of pockets. For example, one party embroiled in an electronic discovery dispute estimated that it would cost $9.75 million to retrieve all e- mails on its backup tapes. See Rowe Entertainment, Inc. v The William Morris Agency,

2 Inc., 205 FRD. 421 (SD NY 2002). The staggering cost associated with unfettered electronic discovery prompted the court in that case to observe, "Too often, discovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter." With the electronic landscape growing at an exponentially faster pace, the federal courts advisory committee attempted to address its impact on pre-trial proceedings in federal court litigation. The end result was amendments to the Federal Rules of Civil Procedure which took effect on December 1, The new rules do not eliminate the cost and burden of electronic discovery. Rather, they attempt to set out guidelines that recognize the new difficulties placed on parties, attorneys and judges by so much information being maintained in electronic format. This paper attempts to set forth the background of the issues, discusses the new federal rules, and provides suggestions to employers for coping with these new demands. WHAT TYPES OF ELECTRONIC INFORMATION ARE DISCOVERABLE? Both the Federal Rules of Civil Procedure and the Michigan Court Rules provide for liberal discovery of information and documents. For example, MCR 2.302(B)(1) provides that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action... (Emphasis added). Accordingly, as with paper documents, the class of electronic information subject to discovery will be broad, including such things as: Records created in different applications such as spreadsheet or word processing applications and stored on a hard drive, floppy disk, magnetic tape, or even punch cards. These records may reflect, for example, customer lists, financial records, purchase and sales reports, and personnel files; Original documents such as letters, memoranda, invoices, and design specifications. 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 which may not be included in the final letter or memo; Databases used by individuals or local area networks; Computer programs evidencing a particular process, incorporating specific information, or demonstrating the use of proprietary methodologies; Computer operation logs containing usage information; Logs and text of electronic messages or , including 'trashed' or deleted messages, message drafts, or mailing lists; 2

3 Electronic messaging records for messages within a specific company's network or across a wider network, such as the Internet; Event data recorders in cars, trucks, and other modes of transportation, including On Star and similar systems; Voice mail; and, Scheduling systems. The importance and certainty of electronic discovery is exhibited in all types of cases and in surprising contexts. For example: A Michigan father lost an appeal on custody issues, in part because of threatening s he sent to his ex-wife and children. Zaidan v Zaidan, 2005 WL (Mich App), unpublished opinion per curiam. In Gonzales v St. Mary s Medical Center of Saginaw, 2005 WL (Mich App), unpublished opinion per curiam, part of the evidence submitted by an age and disability discrimination plaintiff was an in which the vice president in charge of human resources sent warning a nurse manager not to rehire the plaintiff. A woman convicted of murder after conspiring with her recently-acquired lover to kill her new husband had her conviction affirmed, at least in part because the lover, before committing suicide, memorialized in writing and on computer disks, his affair with [the defendant], his conspiracy with [the defendant] to kill [the defendant s] husband, his murder of [the defendant s] husband, and [the defendant s] romantic betrayal of him. People v Miller, 2003 WL (Mich App), unpublished opinion per curiam. SPOLIATION OF EVIDENCE A concern heightened by the requested discovery of ESI is the possibility of a spoliation claim. Spoliation is the destruction of evidence, a likely event when ESI is routinely deleted or written over as part of a company s computer usage and record retention policies. Courts universally condemn the intentional destruction of evidence. Sanctions range from dismissal of a claim or the grant of summary judgment against a party to the preclusion of certain evidence at trial. There is less agreement on the negligent destruction of evidence. Michigan s Standard Civil Jury Instruction on the issue, M Civ JI 6.01, permits a jury to presume that evidence in the control of a party, not produced, when there is no reasonable excuse for not producing it, may be considered adverse to the non-producing party. 3

4 Whatever the potential sanction, it is clear that parties and their counsel must take steps to avoid any suggestion that they have engaged in the spoliation of evidence, in some cases, even before a lawsuit is filed. As stated by the court in Rambus, Inc. v Infineon Technologies AG, 222 F.R.D. 280 (E.D. Va. 2004): The duty to preserve evidence arises not only during litigation but also extends to the period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir 2001) (emphasis added). Therefore, once a party reasonably anticipates litigation, it has a duty to suspend, as to documents that may be relevant to the anticipated litigation, any routine document purging system that might be in effect; failure to do so constitutes spoliation. Id.; see also Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir.1988); Thompson v. United States Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D.Md.2003). In Beck v Haik, 377 F.3d 624 (6th Cir 2004), the Sixth Circuit considered the spoliation issue. The case involved the drowning death of Eugene Beck, who dropped from a bridge (apparently after jumping) into the Manistee River in Manistee, Michigan. The plaintiffs contended that Mr. Beck died because officials of the City and County of Manistee, pursuant to a municipal policy, prevented qualified civilian rescue divers on the scene from saving him, even though the city and county provided no meaningful alternative rescue service of their own. After losing a jury verdict, the plaintiffs appealed, basing their appeal, in part, on a spoliation claim. They made the argument that the county had deliberately destroyed the dispatcher's audio tape of the events of the night Mr. Beck had died. A county witness confirmed that the tape was demagnetized by the dispatcher's office, and thus was unavailable, due to the routine practice of the office to maintain tapes for thirty days, and then, if no one requested preservation of the tape or a copy, to demagnetize and reuse them. The Coast Guard verbally requested the tape during that 30-day period, and the county reviewed the tape with Coast Guard personnel. In addition, an attorney (not a participant in the litigation) filed a written Freedom of Information Act requesting the tape from the night of Beck's death. This FOIA request was filed one or two days before the expiration of the 30-day period, but it was filed with the Manistee County Sheriff's Department, rather than the dispatcher's office. The dispatcher s office did not receive the written FOIA request until shortly after the expiration of 30 days, and by then the tape had been demagnetized. Plaintiffs argued that the Coast Guard's verbal request, and the sheriff's failure to convey the written request to the dispatch office, raised an inference of spoliation of evidence by the County. The district court did not agree. It reasoned that the written request was filed only one or two days before the expiration of the 30-day deadline, and was filed with the sheriff's office rather than the county dispatch office. Thus, it concluded, the logical inference was that an innocent bureaucratic error had prevented the request from being received in time to prevent the destruction of the tape. Reversing and remanding for a new trial, the Sixth Circuit observed: 4

5 The rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law; in this case, the law of Michigan. Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir.1999). Michigan treats evidence of spoliation as relevant to trial proceedings in a number of respects. A trial court has the authority... to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced. Bloemendaal v. Town & Country Sports Ctr. Inc., 255 Mich.App. 207, 659 N.W.2d 684, 686 (2003). A party may also be entitled to special instructions if he can raise an issue of fact as to whether a party has failed to preserve relevant evidence. See Brenner v. Kolk, 226 Mich.App. 149, 573 N.W.2d 65 (1998). The spoliation issue and its sibling, preservation becomes even more important when one considers how many copies of a document are likely to be retained. If an individual sends an to two colleagues with copies to two others, five copies of the now exist. If each recipient sends copies to five others, there are now 25 copies of the original message, not including any potential replies. If the company backs up its data each night, 50 copies will exist the next day, and so on. Moreover, each copy may be somewhat different as information is added to, or the message is edited by, the various recipients. WHO BEARS THE COST OF RESPONDING TO ELECTRONIC DISCOVERY REQUESTS? The Federal Rules of Civil Procedure specify that any matter, not privileged, that is relevant to the claim or defense of any party is discoverable, except where: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. Although the presumption is that the responding party must bear the expense of complying with discovery requests, requests that run afoul of the Rule 26(b)(2) proportionality test may subject the requesting party to protective orders under Rule 26(c), including orders conditioning discovery on the requesting party s payment of the costs of discovery. A court will order such a cost-shifting protective order only upon the filing of a motion by the responding party to a discovery request, and then, only for good cause shown. Thus, the responding party has the burden of proof on a motion for cost-shifting. 5

6 Cost-shifting the imposition of costs on the responding party rather than the requesting party is potentially appropriate only when inaccessible data is sought. When a discovery request seeks accessible data -- for example, active on-line or near-line data - - it is typically inappropriate to consider cost-shifting. ZUBULAKE AND THE CHANGING LANDSCAPE The court acknowledged as the leader in the nation on the issue of electronic discovery and cost-shifting is the U. S. District Court for the Southern District of New York. The leading series of opinions on electronic discovery and cost-shifting was authored by Judge Shira Scheindlin in the case of Zubulake v UBS Warburg, LLC. In all, Judge Scheindlin has issued five electronic discovery-related opinions in what she describes as a relatively routine employment discrimination dispute in which discovery has now lasted over two years. In Zubulake, the plaintiff sued her former employer for gender discrimination and retaliation. She had filed an EEOC charge on August 16, On August 21, a UBS Warburg manager ed a human resources representative, suggesting that Zubulake be fired ASAP, in part so that she would not be eligible for year-end bonuses. In the course of discovery, the plaintiff obtained and produced this to the court. Because of the abundant usage at UBS Warburg, Zubulake requested that UBS Warburg produce all documents concerning any communication by or between UBS employees concerning Plaintiff. In response, UBS produced approximately 350 pages of documents, including about 100 pages of s. UBS did not search for responsive e- mails on its backup tapes. Instead, it informed Zubulake that the cost of searching backup tapes would be prohibitive. Unfortunately for UBS, Zubulake knew that there were additional responsive e- mails because, during the course of the litigation, she had already produced approximately 450 pages of correspondence herself. Questioning UBS Warburg s claim that accessing the requested information was cost-prohibitive, the court required sworn testimony as to UBS Warburg s backup and retrieval systems. Through this testimony, the court discovered that UBS retained every sent or received by its traders on optical disk, even if the was deleted instantaneously on the trader s computer. The court also determined that the optical disks were easily searchable using a program called Tumbleweed. UBS also had 98 backup tapes of its employees s, as well as its active user files. The court ordered UBS to search its active user files and all of its optical disks for responsive and relevant s. The court also ordered UBS to search any five of the 98 backup tapes to determine the likelihood that they would contain relevant documents. UBS hired a third-party vendor to restore and search the backup tapes. The vendor found about 600 responsive s, about 10 percent of the total number of s on the tapes. The cost of the restoration was approximately $19,000. UBS estimated that to perform a similar search on the remaining tapes would cost approximately $274,000. UBS argued that these costs should be shifted to Zubulake. 6

7 In determining whether cost-shifting was appropriate for the discovery of inaccessible data, the court considered the following factors, weighted more-or-less in the following order: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production, compared to the amount in controversy; 4. The total cost of production, compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; and 7. The relative benefits to the parties of obtaining the information. This test modified the list of factors articulated in Rowe Entertainment, Inc. v William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y.), aff d, 2002 WL (S.D.N.Y. May 9, 2002),to meet the concerns of those commentators who argued that the factors articulated in Rowe tend to favor the responding party and frequently result in shifting the costs of electronic discovery to the requesting party. Thus, the foregoing seven-factor test is designed to simplify application of the Rule 26(b)(2) proportionality test in the context of electronic data and to reinforce the traditional presumptive allocation of costs. SEARCH, SEARCH, SEARCH Things did not go well in the Zubulake matter, despite the involvement of the court. On July 20, 2004, Judge Scheindlin issued her fifth discovery opinion in the case, this time directed at the question: Did UBS fail to preserve and timely produce relevant information and, if so, did it act negligently, recklessly, or willfully? Judge Scheindlin sanctioned UBS for the following reasons: Notwithstanding UBS counsel s instructions to retain relevant electronic information, UBS employees deleted relevant s or never produced relevant information to counsel with the result that many discoverable s were not produced to the plaintiff 7

8 until recently, although they had been requested some two years earlier, on June 3, 2002; A number of s responsive to the plaintiff s document requests were deleted and lost altogether; Defendant s counsel failed to request retained information from one key employee, failed to give litigation hold instructions to another, and did not adequately communicate with another employee about how she maintained her computer files; and, Defendant s counsel failed to safeguard backup tapes that might have contained some of the deleted s. Consequently, the court ordered UBS to (1) pay for the re-deposition of relevant UBS personnel as to the newly-discovered s; (2) restore and produce relevant documents from a backup tape; (3) pay for the re-deposition of two witnesses regarding the material produced from the backup tape; and, (4) pay all reasonable expenses, including attorney fees, incurred by Zubulake in connection with the motion to compel. The court also stated that it would give the jury an adverse inference instruction, permitting (but not requiring) the jury to infer that the s not produced would have been unfavorable to UBS. The court concluded: [C]ounsel has a duty to effectively communicate to [his/her] client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with the key players in the litigation, as well as the client s information technology personnel. In addition, when the duty to preserve attaches, counsel must put in place a litigation hold and make that known to all relevant employees by communicating with them directly. The litigation hold instructions must be reiterated regularly and compliance must be monitored. Counsel must also call for employees to produce copies of relevant electronic evidence, and must arrange for the segregation and safeguarding of any archival media (e.g., backup tapes) that the party has a duty to preserve. Once counsel takes these steps (or once a court order is in place), a party is fully on notice of its discovery obligations. If a party acts contrary to counsel s instructions or to a court s order, it acts at its own peril. 8

9 PAPER OR PLASTIC: THE MANNER OF PRODUCTION AND THE ALLOCATION OF COSTS. In re Bristol-Myers Squibb Securities Litigation, 205 FRD 437 (D NJ 2002), involved a putative securities-fraud class action based on false and misleading statements the corporate and individual defendants allegedly made regarding Omapatrilat, an antihypertension drug. Given the nature and scope of the allegations, it was apparent from the outset that extraordinary amounts of information would be produced in discovery. True to expectations, a small mountain of documents -- in excess of 3 million pages -- ultimately was produced by the defendants alone. Prior to the commencement of document production, the plaintiffs had agreed to reimburse the defendants for the cost of reproducing responsive documents at the rate of 10 cents per page. According to the plaintiffs, they did so based on the defendants' preliminary estimate that the universe of responsive documents was in the range of 500,000 pages. In an effort to contain discovery costs, the defendants offered the plaintiffs the opportunity to review the responsive documents before they were copied and produced. When the plaintiffs declined the offer, the defendants began copying and producing the responsive documents in waves. Ultimately, the plaintiffs were presented not only with 3,085,994 pages of documentation -- six times the universe of documents the plaintiffs purportedly were led to believe existed -- but also with invoices for $308, in reproduction costs. Only after learning that their reproduction tab topped $300,000 did plaintiffs' counsel begin to aggressively press the defendants on the issue of whether responsive information existed in electronic form rather than hard copies. Three critical facts surfaced in short order: First, prior to receiving the plaintiffs' formal document requests, the defendants already possessed, in digital form, substantial volumes of responsive information relating to the so-called New Drug Application for Omapatrilat; Second, at some point after the plaintiffs served their document requests, the defendants -- for their own trial preparation purposes -- took the fairly routine step in cases of this magnitude of scanning onto compact discs the remainder of the responsive information that was not previously in electronic form; and, Third, the mountain of hard copy documents that the defendants eventually produced to the plaintiffs was generated not by the traditional reproduction method of photocopying but by the less expensive process of "blowing back" paper copies of the digital images for the plaintiffs at the same time electronic copies were being generated for the defendants through the 9

10 scanning process. This method of reproduction was performed at a cost of approximately 8 cents per page as opposed to the 10 cents per page cost of traditional reproduction the plaintiffs had agreed to assume. Armed with the knowledge that most if not all of the information responsive to their requests was in electronic form, the plaintiffs requested copies of the compact discs containing that information. The request was not surprising given the benefits of discs over hard copies. As stated in the Manual for Complex Litigation (Third) (1995): Because a single disc can store a large amount of information [citing a case in which each disc contained 15,000 pages and could be obtained for $25.00 per disc], voluminous discovery materials can thus be distributed much more conveniently and inexpensively. Computerized search and retrieval of information on a disc can facilitate review of voluminous discovery materials, particularly if adequately indexed. The defendants agreed to accommodate the plaintiffs' request for the compact discs -- for a price. Prior to turning over the discs, the defendants demanded reimbursement not only of the $308, in overdue reproduction costs, but also an additional $216, representing one-half of their cost of scanning the information onto compact discs. Faced now with the prospect of having to advance an eye-popping total of $524, in discovery costs, plaintiffs' counsel upped the ante, refusing to reimburse the defendants for any of the costs associated with duplicating the responsive information in either hard copy or electronic form. The defendants sought an order compelling the plaintiffs to reimburse them for the $524, cost of producing the responsive information in both paper and electronic forms. The court expressed dissatisfaction with what it characterized as the plaintiffs' lack of diligence in pursuing responsive information in electronic form, noting that the plaintiffs' discovery requests specifically targeted paper documents despite the court's emphasis on electronic discovery at an earlier case management conference. However, the court was also troubled by the fact that the defendants possessed, in electronic form, a substantial amount of information regarding the critical New Drug Application prior to producing that same information in hard copy. According to the plaintiffs' motion papers, the hard documents pertaining to the NDA alone consisted of some 1.6 million pages. However, because the defendants did not voluntarily disclose that they possessed the NDA in electronic form at the time they produced the hard copies of documents reflecting that same information, the court declined to require plaintiffs to assume any of the costs associated with reproducing those voluminous records. The court also found that, had the plaintiffs' discovery requests specifically addressed the fairly foreseeable possibility (given the nature and magnitude of the litigation) that documents would be scanned onto disks, the defendants would have been required to disclose the existence of the compact discs, thus almost certainly prompting a request for copies of those discs in lieu of hard copy documents. Under the 10

11 circumstances, the plaintiffs were directed to reimburse the defendants for the reproduction costs relating to the hard copies of responsive materials other than the information pertaining to the NDA. The court also held that the plaintiffs should reimburse the defendants at the lower "blow back" rate of 8 cents per page rather than the initially agreed-upon rate of 10 cents per page. The court held, regarding the scanned documents, that the plaintiffs would have to bear only the nominal costs of actually copying the disks themselves, reasoning that the defendants had intended, until the request for electronic information from the plaintiffs arose, to fully fund the scanning process themselves and that the defendants made the conscious choice of 'blowing back' paper copies without having first given the plaintiffs the option of only paying for discovery once, for paper or for disks. More important than the actual rulings in the case may be the guidance from the court to resolve future disputes early. The court recommended a proactive approach to the unique challenges of electronic discovery, with counsel conferring early and often to come to grips with those issues. For example, the discovery planning conference between counsel mandated under the disclosure rules should be used as a forum in which to identify -- and preferably resolve -- any anticipated problems with respect to electronic discovery. This meeting typically is convened at the earliest phases of litigation. The court suggested that "[i]n the electronic age," the topics to be addressed at such an initial meeting should include: whether the parties possess information in electronic form; whether the parties intend to produce such material; whether the parties' computer software is compatible; whether the privilege issue requires the redaction of the electronic discovery; and, the equitable allocation of costs associated with such electronic discovery. Other cases have also dealt with the costs and manner of production: In proceedings under a state freedom of information law, the trial court properly ordered disclosure of records in computer tape format rather than as hard copies where the agency maintained the requested files in computer format, the files could be reproduced on computer tapes quickly and at minimal cost, while the same information provided as printed copy would use more than 1,000,000 sheets of paper, cost more than $10,000 to print, require 5 to 6 weeks to produce, and finally cost the petitioner hundreds of thousands of dollars to reconvert to a computer-readable format. Brownstone Publishers, Inc. v New York City Dept of Bldgs, 166 AD2d 294 (1st Dep't 1990). 11

12 Defendants in a products liability action arising out of an automobile collision were entitled to a protective order preserving input and output data from each simulation or "iteration" run by plaintiff s expert witness to simulate the way in which the vehicle would perform under hypothetical circumstances. The court overruled the plaintiff's objection that the scope of the order should be limited to computer reconstructions whose results conformed to known physical information corresponding to the actual collision which resulted in plaintiff's injuries. The court reasoned that all information used in generating computer simulations was relevant to the defendants' challenge to such evidence, not merely information which conformed to plaintiff's theory of the case. Bartley v Isuzu Motors Ltd., 151 FRD 659 (D Colo 1993). At the beginning of any litigation in which there may be significant electronic discovery, counsel should consider retaining the services of computer forensics experts, familiarize themselves with their clients' computer infrastructures, take reasonable steps to anticipate problem areas and then raise those issues immediately with their adversaries in an effort to forge real-world solutions to some very difficult challenges. Pragmatism and diligence in confronting these challenges likely will be rewarded. On the other hand, as demonstrated in Zubulake, supra, gamesmanship and indifference may carry a very steep price. THE NEW FEDERAL RULES Zubulake and similar cases have led to amendments to the Federal Rules of Civil Procedure. The Federal Rules govern how cases are litigated and tried in the federal court system. Changes to the rules deal primarily with the discovery (i.e., information exchange) stage of litigation. As referenced in the cases discussed above, the discovery phase can be, and usually is, the most expensive aspect of litigation. The rule changes became effective December 1, The changes modified rules that govern pre-trial and discovery processes. The changes modified six rules and impact five broad areas of discovery. They: (1) require early attention to issues relating to electronic discovery, including the form of production, preservation of ESI, and the problems of reviewing ESI for privilege; (2) require objecting parties to show that the discovery of ESI is not reasonably accessible; (3) establish a procedure for parties to invoke attorney-client and work product protections after the production of documents; (4) establish that interrogatories and document requests apply to ESI and describe a form for producing such information; and, (5) limit sanctions for the loss of ESI as a result of the routine operation of computer systems. The changes to each of the rules are set forth below. Rule 16(b), which addresses scheduling orders and pre-trial planning was amended to provide that the court s scheduling order may provide for disclosures or discovery of electronically stored information. This change requires attorneys and their 12

13 clients to determine, very early in the litigation, the extent to which electronic information will play a role in the litigation. By evaluating electronic data early on, the parties will have more information with which to suggest reasonable scheduling dates to the court and will be in a better position to address any difficulties in producing information, including how burdensome production will be and who will bear the costs of production. The parties may also include a time limit for requesting search terms and the number of times search terms can be proposed. Rule 26, which broadly sets forth discovery requirements, was amended in four separate sections. Rule 26(a)(1)(B) requires parties to make initial disclosures concerning documents and things that a party may use to support its claims or defenses. This rule has been amended to expressly include electronically stored information in the category of information that the party must otherwise provide. The amendment is important to parties because the 26(a)(1)(B) disclosures must be made very early in the litigation. typically before any other discovery has taken place. Rule 26(b)(2) limits the volume of discovery by generally authorizing the court to limit the number of depositions, interrogatories and other discovery requests. Rule 26(b) was changed to include three subsections. Section 26(b)(2)(B) provides that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably assessable because of undue burden or cost. The party from whom the information is sought bears the burden of proving undue burden or cost. Despite the burden or cost, the court may nevertheless order the discovery and set conditions for its production. This rule has benefits and pitfalls for both sides. The party who objects must identify by category and type, the electronic information that it asserts is burdensome and costly to produce, and must be prepared to prove that assertion. On the other side of the equation, the party requesting discovery must be prepared to cover the cost of production as a potential condition of getting that which it seeks. Rule 26(b)(5)(B) addresses the procedure for objecting to the production of materials on the basis of attorney-client or attorney-work product privilege. Rule 26(b)(5)(B) establishes a procedure to assert a privilege claim after ESI has been produced to the other side, leaving the question of waiver to later determination by the court. Previously, privilege questions were required to be raised and resolved before any documents were produced. The committee note to this section recognizes that the risk of privilege waiver and the cost to avoid it in the production of electronic documents will significantly add to the cost and time in producing ESI. Due to the potentially large volume of ESI that is subject to production and the cost and time it would take for an attorney to review it prior to production, Section 26(b)(5)(B) establishes a mechanism for counsel to raise privilege issues after production. Note that the cost of reviewing the information is not eliminated. Rather, it is simply shifted to a point after the actual production of the documents. The receiving party may not use or disclose inadvertently produced privileged material until any waiver claims have been resolved. If the information was disclosed to 13

14 third parties before the receiving party was notified of the privilege claim, the receiving party must take steps to retrieve it. Rule 26(f) requires parties to have a conference to address discovery issues prior to the initial scheduling conference with the court. Rule 26(f) was amended to require parties to discuss any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced at their discovery-planning conference. The parties must also discuss any issues relating to preserving discoverable information. Rules 33 and 34 deal with interrogatories (questions) and document requests, respectively. Rule 33 provides that a party to whom a question is posed can refer the requesting party to a document or documents to glean the answer. Rule 33 was amended to expressly provide that the answering party may refer the requesting party to ESI to gather the answer. The description, however, must be sufficient for the inquiring party to locate and identify the answer from the ESI as readily as the answering party could do so. Rule 34 was similarly amended to provide that a party may request ESI and may further specify the form or forms in which electronically stored information is to be produced. If the requesting party does not specify the form, the amended rule provides that a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. 34(b)(ii). The comments to the new rule provide some guidance in this regard stating, for example, that: If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature. Rule 37 deals with the sanctions that a court may impose upon a party who does not fairly participate in the discovery process. Amended Rule 37(f) provides a safe harbor by providing that the court may not impose sanctions on a party for failing to provide ESI deleted or lost as a result of the routine operation of the party s electronic information system. The court may, however, impose such sanctions in exceptional circumstances, even if the party acted in good faith. The Advisory Committee offers the following guidance regarding when a party can use this safe harbor provision: Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources. Finally, Rule 45, which deals with subpoenas, was amended to include electronically stored information in the description of information that may be compelled by subpoena. Amended Rule 45(d) provides that a person responding to a request for electronically stored information need not produce it if shows that the information is not reasonably assessable. The Rule prescribes the form of producing ESI, 14

15 which is the same as that in Rule 34. The Rule also provides a procedure for addressing inadvertently produced privileged materials, which tracks Rule 26(b)(5)(B). ORGANIZATIONAL E-DISCOVERY POLICIES AND PROCEDURES All organizations should have a records-retention policy (RRP) that requires employees to regularly review, retain and destroy documents created and/or maintained in the course of business. This process is important for the long-term management of the archive, as it substantially reduces the number of documents subject to review in ensuing litigation and makes the retrieval process more effective. Many organizations have instituted policies limiting the space users have available to them on network servers, forcing users to purge unnecessary documents. Traditional records-retention policies typically contain language requiring the following: Delineating documents as "business" and "non-business" communications, instructing staff to retain the former and delete the latter; Setting the term for retaining documents, which should reflect applicable statutory and administrative limitation retention periods, or other applicable laws; and, Establishing uniform indexing procedures to enable rapid recovery of relevant information from the archive. These RRP elements apply equally to paper and electronic information. The RRP should also include two additional procedures specific to electronic data to account for the unique storage and retrieval issues raised by this type of information. First, the RRP should specify a process to "freeze the electronic scene" at the outset of litigation. Unlike paper information, electronic data may change frequently, sometimes without the user's knowledge. If electronic data is not quickly locked-in-place (by saving it to non-rewritable CD-ROMs, for example), the data may change. IT system administrators often recycle system backup tapes, over-writing historically archived data which may give rise to a spoliation claim as discussed above. Please note that a party s obligation to preserve electronic data is not dependent on a specific request to do so. Second, the RRP should confer the responsibility and authority on the recordretention team to preserve and maintain both the paper and electronic archives. This means that for many types of electronic data, records custodians need to manage technical assets and the organization's IT infrastructure, including desktop and laptop computers, servers, backup tapes and other electronic data-storage devices. Procedures for archiving data within these sources should be set forth in the RRP. METADATA A particular type of electronic information that is not readily observable is known 15

16 as metadata, or data about data. Metadata is embedded data. For example, many word processors store information about a document that is not apparent from the face of the document, such as the author or the time it was last accessed or modified. Likewise, the specification (international standard) for enables to be exchanged between different systems. The specification identifies about 30 fields, but the sender and recipients typically see only a few fields -- to, from, subject, date and headline. The sending system may contain more information such as time sent or blank copies blind copies or "bccs." This information, particularly bccs, could be critical in litigation. Microsoft has identified 13 types of metadata that could be embedded in your Word documents (see Knowledge Base Article #223396, "How to Minimize Metadata in Microsoft Office Documents"). They include: author name, initials, company name, computer name, name of the network server or hard disk where the document is saved, file properties and summary information, non-visible portions of embedded OLE objects such as an Excel spreadsheet link or PowerPoint presentation, names of the last 10 document authors, document revisions (track changes), document versions, template information (including embedded VBA code), hidden text and comments. Although metadata is, for the most part, not readily viewable on your computer screen, most metadata components can be easily unearthed in any electronic document. So, when you share files electronically (typically via attachments or Web site postings), you are sharing the metadata as well. In some instances, metadata components can actually be helpful. For example, when collaborating on documents internally, or with co-counsel, it enables you to see tracked changes and clearly identify the authors of those changes. Consider, however, what would happen if documents distributed electronically to opposing counsel contained sensitive hidden text or comments. One solution is to attempt to manually remove the metadata from your documents before you send them out electronically. Because metadata is created in a variety of ways, there is no single method to entirely eliminate it from your documents manually. Microsoft's knowledge base provides dozens of articles on various aspects of the subject of metadata, including manual removal. The only way to achieve easy and consistent removal of metadata from a document is via software automation. To this end, there are a number of software programs available that provide different options for addressing the metadata issue. Most enable you to identify and analyze metadata components within your documents, generate detailed reports of that metadata and then "clean" documents before sending them by eliminating the unwanted metadata. They allow you to save the original versions of your documents, as well as "cleaned" versions for distribution. For the most part, these programs are shrink-wrapped and user-friendly. They quickly provide a level of safety and assurance that is not achievable through any kind of manual process. Regardless of the method selected, employers and counsel should consider 16

17 implementing a system or procedure to protect against unintentional metadata distribution. In the end, the benefits outweigh any associated costs. CONCLUSION The issues raised by electronic discovery are now being explored in depth. The practical impact of the new rules and the broadened discovery they govern will become an increasingly important and contentious part of litigation. More than ever, attorneys and their corporate clients executives, legal staffs, human resource professionals and IT departments will need to work in concert to insure compliance. 17

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