ITC TLA E-Discovery Proposals. The Supreme Court amended the Federal Rules of Civil Procedure, effective on January

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1 ITC TLA E-Discovery Proposals The Supreme Court amended the Federal Rules of Civil Procedure, effective on January 1, 2006, to facilitate the production of electronically stored information (ESI). ESI is broadly defined in the case law, and amendments to the Federal Rules of Civil Procedure and the Federal Rules of Evidence have been made over time to manage the discovery process and allow the production of relevant ESI. Limitations against requiring the production of irrelevant ESI, or ESI that is unduly burdensome to collect and produce given the costs and benefits involved, have also been made. The ITC TLA Subcommittee on Electronic Discovery suggests that similar changes be made to the Commission s Rules of Practice and Procedure. The specific proposals below involve (1) amending the Commission s Rules to allow discovery of ESI within certain limits and cost shifting, (2) amending the Commission s Administrative Protective Order to standardize the production of source code and permit the clawback of inadvertently produced information, (3) adding an early meet-and-confer to the ALJ s Ground Rules regarding e-discovery issues, and (4) identifying criteria for the standardized production of ESI. The Subcommittee on Electronic Discovery also reviewed and took note of the Federal Circuit Advisory Committee on E-Discovery s proposed model order. As a result, the Subcommittee has modified its proposal to require the discussion of limitations on the number of custodians and search terms for electronic searches, as well as the proper timeframe for such searches, during the parties early e-discovery meet and confer conference. The Subcommittee on Electronic Discovery invites comments and suggestions about its proposals from the ITC TLA Executive Board.

2 I. Amend Commission Rules Regarding E-Discovery to Correspond to the Federal Rules of Civil Procedure A. Proposal -- Amend Commission Rule (b) and Insert New Subsections (c)-(d) Regarding the Production of ESI and Limitations on that Product 19 C.F.R (b) Scope of discovery. Regarding the scope of discovery for the temporary relief phase of an investigation, see For the permanent relief phase of an investigation, unless otherwise ordered by the administrative law judge, a party may obtain discovery regarding any matter, not privileged, that is relevant to the following: (1) The claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things; (2) The identity and location of persons having knowledge of any discoverable matter; (3) The appropriate remedy for a violation of section 337 of the Tariff Act of 1930 (see (a)(1)(ii)(A)); or (4) The appropriate bond for the respondents, under section 337(j)(3) of the Tariff Act of 1930, during Presidential review of the remedial order (if any) issued by the Commission (see (a)(1)(ii)(B)). It is not grounds for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations of (d). 19 C.F.R (c) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the administrative law judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of (d). 19 C.F.R (d) General Limitations on Discovery. On motion or on its own, the administrative law judge must limit the frequency or extent of discovery otherwise allowed by these rules if the administrative law judge determines that: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; Page 2

3 (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the investigation; or (3) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the importance of the issues at stake in the investigation, the importance of the discovery in resolving the issues, and the public interest. 1. Reason for Proposal The proposed amendments follow the 2006 revisions of Fed. R. Civ. P. 26(b)(1) and 26(b)(2)(B) and (C). The proposed amendment to subsection (b) incorporates a general proportionality limitation on the scope of discovery, and new subsection (d) lists the factors that the administrative law judge may consider in assessing the cost and benefit of requested discovery. New subsection (c) specifically relates to the production of electronic discovery that is not reasonably accessible and provides a framework for the administrative law judge to consider in assessing requests for such discovery. Under this rule, a responding party should still produce electronically stored information that is relevant, not privileged, and reasonably accessible, subject to the (d) limitations that apply to all discovery. Current subsections (c)-(d) would be renumbered as (f)-(g). But for renumbering, these subsections would remain the same, and current subsection (d)(iii) (renumbered as (f)(iii)) would retain the requirement for counsel s certification that the requested discovery is [n]ot unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, and the importance of the issues at stake to the litigation. Adopting these provisions from the Federal Rules of Civil Procedure will address concerns over the scope and proportionality of ESI discovery in an efficient manner. ITC practitioners come from a variety of jurisdictions. Indeed, many of the thirty states adopting e- discovery rules have based their provisions on the Federal Rule, in whole or in part. Thus, not Page 3

4 only will counsel have familiarity with these provisions, there is also a ready source of jurisprudence to guide the ITC and facilitate the smooth transition of this proposal. B. Proposal Insert New Commission Rule (e) Regarding Cost Shifting 19 C.F.R (e). Cost Shifting. (1) Upon motion of a party or sua sponte, the administrative law judge may shift the costs of collecting and producing discovery from the receiving party to the requesting party, where: (a) (b) The administrative law judge determines that, even though the electronically stored information is not reasonably accessible, there is still good cause to produce it, notwithstanding the provisions set forth in [proposed] Commission Rules (c) and (d); or The responding party is willing to stipulate on issues for which the discovery is sought. (2) In determining the equities of shifting costs under the circumstances set forth in 19 C.F.R (e)(1), the administrative law judge shall weigh the following factors: (a) (b) (c) (d) (e) (f) (g) the specificity of the discovery request; the quantity of information available from other and more easily accessed sources; the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; predictions as to the importance and usefulness of the further information; the importance of the issues at stake in the litigation; and the parties resources. 1. Reason for Proposal While there is a presumption that each party bears its own costs of production during discovery, limited ESI cost shifting is desirable. First, it discourages tactical application of burdensome discovery requests, such as those designed to boost the settlement value of an Page 4

5 investigation or to overload a party during a critical time in the case. Second, it encourages an efficient balance between the value of the discovery and its costs. This is especially helpful where there is a structural imbalance in the amount of discovery each party must produce, such that the requesting party has little incentive to negotiate mutual limits. Where good cause is shown for production of ESI deemed not reasonably accessible, the percentage of cost shifting is left to the discretion of the administrative law judge and should be evaluated on a case-by-case basis using the criteria set forth in advisory committee notes concerning the 2006 amendments to Fed. R. Civ. P. 26(b)(2). This set of criteria is similar to the factors in Zubulake v. UBS Warburg LLC, 217 FRD 309 (SDNY 2003), which articulates the cost-shifting test often used prior to the 2006 amendments to the Federal Rules. A key difference, however, is that, under the criteria in the Federal Rules, ESI can be deemed inaccessible due to burden or cost, even if it is physically accessible that is, even if the ESI does not need to be translated or recovered. Instead, the criteria in the advisory committee notes focuses on how much time and money must be expended to determine whether ESI is accessible. Thus, a small company might still be unduly burdened by a request to supply ESI from active hard drive space if collecting that information would require the expenditure of significant resources. The advisory committee notes criteria, then, provide a bit broader protection to responding parties, which is appropriate for the fast-paced forum of the ITC. This set of criteria, however, also includes provisions to ensure good-faith discovery compliance responding parties (e.g. proposed 19 C.F.R (e)(2)(c)). Notwithstanding the specific provisions of this proposal, the propriety of any discovery request should still be evaluated in light of [proposed] Commission Rule (d). Page 5

6 There is support in the current Commission Rules for cost shifting. Current Commission Rule (d)(2) requires that every request for discovery made by a party shall be signed certifying, inter alia, that the request is [n]ot unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, and the importance of the issues at stake in the litigation. If a request is certified in violation of paragraph d(2), under subsections (d)(3) and (4), the Administrative Law Judge or the Commission may impose an appropriate sanction, including ordering to pay to the other parties the amount of reasonable expenses incurred because of the violation to the extent authorized by Rule 26(g) of the Federal Rules of Civil Procedure. Moreover, Administrative Law Judges have used their discretion to shift costs or order that the parties reach agreement on how best to allocate among them an unduly burdensome expense in prior investigations involving production of ESI by Complainants, Respondents, as well as third parties. See, e.g., Certain Optical Disk Controller Chips & Chipsets & Prods. Containing Same, Including DVD Players & PC Optical Storage Devices II, Inv. No. 337-TA-506, Order No. 16 (Sept. 17, 2004); Certain Encapsulated Integrated Circuit Devices & Prods. Containing Same, Inv. No. 337-TA-501, Order No. 37 (Apr. 22, 2004); Certain Zero-Mercury-Added Alkaline Batteries, Parts Thereof, & Prodt.s Containing Same, Inv. No. 337-TA-493, Order No. 75 (Jan. 15, 2004); Certain Network Interface Cards & Access Points For Use In Direct Sequence Spread Spectrum Wireless Local Area Networks & Prods. Containing Same, Inv. No. 337-TA-455, Order No. 45 (Oct. 12, 2001). Indeed, the Administrative Law Judge s ability to shift costs is part of the Court s inherent authority to set conditions for discovery, which include, inter alia, the amount, type, and source of information required to be produced. Page 6

7 II. Amend the Commission Administrative Protective Order (APO) Regarding E-Discovery A. Proposal -- Amend APO to Add Paras Regarding Production of Source Code 18. Source Code. A supplier may designate documents, information, or things as "CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION," which shall mean Litigation Material of a supplier or of any non-parties that a supplier is permitted to produce in this Investigation that constitutes or contains non-public Source Code. A. "Source Code" shall mean source code and object code (i.e., computer instructions and data definitions expressed in a form suitable for input to an assembler, compiler, or other translator). For avoidance of doubt, this includes source files, make files, intermediate output files, executable files, header files, resource files, library files, module definition files, map files, object files, linker files, browse info files, and debug files. B. Materials designated as "CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION," shall only be reviewable by SOURCE CODE QUALIFIED PERSONS. SOURCE CODE QUALIFIED PERSONS include the following: (1) Outside Litigation Counsel as necessarily incident to the litigation of this Investigation; (2) personnel at document duplication, coding imaging or scanning service establishments retained by, but not regularly employed by, Outside Litigation Counsel as necessarily incident to the litigation of this Investigation; (3) the Commission, the Administrative Law Judge, the Commission Investigative Staff, Commission personnel and contract personnel who are acting in the capacity of Commission employees as indicated in paragraph 3 of this Protective Order; (4) court reporters, stenographers and videographers transcribing or recording testimony at depositions, hearings or trial in this Investigation; and (5) Qualified Consultants and/or Qualified Experts in this Investigation (under paragraph 11 of this Protective Order in this Investigation). However, Qualified Consultants and/or Qualified Experts may only review CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION after being expressly identified to the supplier as seeking access to CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION. If the receiving party wishes an already identified Qualified Consultant or Qualified Expert to receive CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION it must re-comply with the provisions of paragraph 11 of this Protective Order in this Investigation, including allowing the supplier an opportunity to object to this Qualified Consultant or Qualified Expert receiving CONFIDENTIAL SOURCE CODE ATTORNEY' S EYES ONLY INFORMATION, and identify the proposed Qualified Consultant or Qualified Expert as seeking access to CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION. C. Source Code shall be provided with the following additional protections: (i) Nothing in this Protective Order shall obligate the parties to produce any Source Code, nor act as an admission that any particular Source Code is discoverable. (ii) Access to Source Code will be given only to SOURCE CODE QUALIFIED PERSONS. Page 7

8 (iii) Access to Source Code shall be provided on at least two "stand-alone" computers (that is, the computers may not be linked to any network, including a local area network ("LAN"), an intranet, or the Internet and may not be connected to any printer or storage device other than the internal hard disk drive of the computer). The stand-alone computers shall be kept in a secure location at the offices of the supplier's Outside Litigation Counsel, or at such other location as the supplier and receiving party mutually agree. Each stand-alone secure computer may be password protected and shall have the Source Code stored on a hard drive contained inside the computer. The supplier shall produce Source Code in computer searchable format on the standalone computer. Each stand-alone computer shall, at the receiving party's request, include reasonable analysis tools appropriate for the type of Source Code. The receiving party shall be responsible for providing the tools or licenses to the tools that it wishes to use to the supplier so that the supplier may install such tools on the stand-alone computers. (iv) The receiving party shall make reasonable efforts to restrict its requests for access to the stand-alone secure computers to normal business hours, which for purposes of this Paragraph shall be 9:00 a.m. through 6:00 p.m. local time at the reviewing location. Upon reasonable notice from the receiving party, which shall not be less than three (3) business days in advance, the supplier shall make reasonable efforts to accommodate the receiving party's request for access to the computers outside of normal business hours. Such an expanded review period shall not begin earlier than 8:00 a.m. and shall not end later than 8:00 p.m. local time at the reviewing location. The parties agree to cooperate in good faith such that maintaining the Source Code at the offices of the supplier's Outside Litigation Counsel shall not unreasonably hinder the receiving party's ability to efficiently conduct the prosecution or defense in this Investigation. The parties reserve their rights to request access to the Source Code at the site of any hearing or trial. Proper identification of all SOURCE CODE QUALIFIED PERSONS shall be provided prior to any access to the stand alone secure computers. (v) All SOURCE CODE QUALIFIED PERSONS who will review Source Code on behalf of a receiving party shall be identified in writing to the supplier at least seven (7) business days in advance of the first time that such person reviews such Source Code. Such identification shall be in addition to any disclosure required under paragraph 18(B) of this Protective Order. The supplier shall provide these individuals with information explaining how to start, log on to, and operate the stand-alone computers in order to access the produced Source Code on the stand-alone secure computers. For subsequent reviews by SOURCE CODE QUALIFIED PERSONS, the receiving party shall give at least one business day (and at least 24 hours) notice to the supplier of such review. (vi) No person other than the supplier may alter, dismantle, disassemble or modify the standalone computers in any way, or attempt to circumvent any security feature of the computers. (vii) No copies shall be made of Source Code, whether physical, electronic, or otherwise, other than volatile copies necessarily made in the normal course of accessing the Source Code on the stand-alone computers, except for: (1) print outs of reasonable portions of the Source Code in accordance with the provisions of paragraphs 18(C)(ix)-(x) of this Protective Order; and (2) such other uses to which the parties may agree or that the Administrative Law Judge or the Commission may order. No outside electronic devices, including but not limited to laptop computers, USB flash drives, zip drives, or devices with camera functionalities shall be Page 8

9 permitted in the same room as the stand-alone computers. The supplier may exercise personal supervision from outside the review room over the receiving party when the receiving party is in the Source Code review room. Such supervision, however, shall not entail review of any work product generated by the receiving party, e.g., monitoring the screens of the stand-alone computers, monitoring any surface reflecting any notes or work product of the receiving party, or monitoring the key strokes of the receiving party. There will be no video supervision by any supplier. (viii) Nothing may be removed from the stand-alone computers, either by the receiving party or at the request of the receiving party, except for (1) print outs of reasonable portions of the Source Code in accordance with the provisions of paragraphs 18(C)(ix)-(x) of this Protective Order; and (2) such other uses to which the parties may agree or that the Administrative Law Judge or the Commission may order. (ix) At the request of the receiving party, the supplier shall within three (3) business days provide one (1) hard copy print out of the specific lines, pages, or files of the Source Code that the receiving party believes in good faith are necessary to understand a relevant feature of an accused product. During the review of Source Code, if a receiving party believes in good faith that contemporaneous access to print-outs of particular pages of the Source Code are necessary to further the Source Code review, the receiving party may request and the supplier shall promptly provide one (1) hard copy print out of such pages. The receiving party shall limit its requests for contemporaneous access to print outs to those pages actually necessary to conduct the Source Code review. If the supplier objects in any manner to the production of the requested source code (e.g., the request is too voluminous), it shall state its objection within the allotted five (5) business days pursuant to this paragraph. In the event of a dispute, the parties will meet and confer within five (5) business days of the objection being raised and if they cannot resolve it the parties will raise it with the ALJ. (x) Hard copy print outs of Source Code shall be provided on bates numbered and watermarked or colored paper clearly labeled CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION on each page and shall be maintained by the receiving party's Outside Litigation Counsel or SOURCE CODE QUALIFIED PERSONS in a secured locked area. The receiving party may also temporarily keep the print outs at: (a) the Commission for any proceedings(s) relating to the Source Code, for the dates associated with the proceeding(s); (b) the sites where any deposition(s) relating to the Source Code are taken, for the dates associated with the deposition(s); and (c) any intermediate location reasonably necessary to transport the print outs (e.g., a hotel prior to a Commission proceeding or deposition). The receiving party shall exercise due care in maintaining the security of the print outs at these temporary locations. No further hard copies of such Source Code shall be made and the Source Code shall not be transferred into any electronic format or onto any electronic media except that: 1. The receiving party is permitted to make up to five (5) additional hard copies for use at a deposition. 2. The receiving party is permitted to make up to five (5) additional hard copies for the Commission in connection with a Commission filing, hearing, or trial, and of only Page 9

10 the specific pages directly relevant to and necessary for deciding the issue for which the portions of the Source Code are being filed or offered. To the extent portions of Source Code are quoted in a Commission filing, either (1) the entire document will be stamped and treated as CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION; or (2) those pages containing quoted Source Code will be separately stamped and treated as CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION; 3. Electronic copies of Source Code may only be made to be included in documents which, pursuant to the Commission's rules, procedures and order(s), cannot be filed or served in hard copy form and must be filed or served electronically. Only the necessary amount of electronic copies to effectuate such filing or service may be stored on any receiving party server, hard drive, thumb drive, or other electronic storage device at any given time. After any such electronic filing or service, the receiving party shall delete all electronic copies from all receiving party electronic storage devices. 4. The receiving party is permitted to make up to six (6) identical CD-ROMs or DVDs that contain an electronic copy of the hard copy print-outs of Source Code provided by the supplier. The receiving party may provide these CD-ROMs or DVDs to Qualified Consultants or Qualified Experts, who may use such CD-ROMs solely for active review of the Source Code. The receiving party is also permitted to make temporary copies necessarily made in the production of these CD-ROMs or DVDs, provided any such copies are immediately deleted once the temporary copies are no longer required for the production of the CD-ROMs or DVDs. 5. The supplier shall, on request, make a searchable electronic copy of the Source Code available on a stand-alone computer during depositions of witnesses who would otherwise be permitted access to such Source Code. The receiving party shall make such request at the time the notice for deposition. (xi) Nothing in this Protective Order shall be construed to limit how a supplier may maintain material designated as CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION. (xii) Outside Litigation Counsel for the receiving party with custody of CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION shall maintain a source code log containing the following information: (1) the identify of each person granted access to the CONFIDENTIAL SOURCE CODE ATTORNEY'S EYES ONLY INFORMATION; and (2) the first date on which such access was granted. Outside Litigation Counsel for the receiving party will produce, upon request, each such source code log to the supplier within twenty (20) days of the final determination of this Investigation. 19. No prejudice. The private parties agree that entering into this Protective Order Addendum is without prejudice to any party's rights to propose, request or otherwise move for different provisions relating to Source Code production in any other litigation. Page 10

11 1. Reason for Proposal The proposed amendments are designed to provide additional protections for highly sensitive source code. Although breaches of the standard Administrative Protective Order ( APO ) are uncommon and typically remediated, a practice has developed during section 337 investigations to amend the standard APO to provide added protections for source code. The proposed amendment adopts many of these provisions, including the following: Limits access to source code to stand alone computers resident in the producing party s outside counsel s offices or other mutually agreed site; Requires the receiving party to provide advance notice of access to source code and the producing party to instruct the source code qualified person how to access the source code; Limits copies of source code to paper copies that are reproduced on bates numbered paper; Requires the receiving party to give the producing party notice and opportunity to object to access by the receiving party s experts and consultants; and Governs the use of source code in depositions, hearings, filing, and service. Consistent with current practice, the parties to ITC investigations would remain free to seek further changes to the APO. B. Proposal -- Amend APO to Add Para. 20 Regarding Clawback of Inadvertently Disclosed Information 20. Clawback. The parties agree that any inadvertent disclosure or production of document(s) shall not be deemed a waiver of, nor prejudice to, any privilege or immunity with respect to such information or document(s) or of any work product doctrine or other immunity that may attach thereto, including without limitation the attorney-client privilege, the joint defense privilege, and the work product doctrine, provided that the producing party notifies the receiving party in writing promptly after discovery of such inadvertent production. All copies of such document(s) shall be returned to the producing party or destroyed within five (5) days of such notice. Also within five (5) days of such notice, the producing party shall serve a privilege log for the document(s) on all parties to the investigation. The producing party shall maintain the referenced document(s) until the parties resolve any dispute concerning the privileged nature of such documents or the administrative law judge rules on any motion to compel such documents. If a dispute arises concerning the privileged nature of the document(s) demanded or returned, the parties shall meet and confer in good faith in an effort to resolve the dispute. If the Page 11

12 parties are unable to resolve the dispute, the receiving party may file a motion to compel the production of such document(s) in accordance with the applicable Ground Rule of the administrative law judge. In the event of such a motion to compel, the producing party shall have the burden to demonstrate the claimed privilege, work product immunity or other immunity. However, in no case will the return of any demanded document be delayed or refused by reason of a party's objection to the demand or by the filing of a motion to compel, nor may a party assert the fact of the inadvertent production as a ground for any such motion. The parties further agree that the responding party will not use or refer to any information contained within the document(s) at issue, including in deposition or at hearing or in any filing, unless and until such a motion to compel that document is granted by an administrative law judge, except as such information may appear in any applicable privilege log. 1. Reason for Proposal To expedite the production of documents in Section 337 investigations, parties have often informally agreed or stipulated to a clawback agreement pursuant to which a party can request the return of an inadvertently disclosed document, and the recipient of that document cannot rely on it or claim that any attorney-client or work product privilege in the document has been waived. At times, parties have successfully moved to include a clawback provision in the Protective Order. Given the volume of discovery in a typical Section 337 investigation, exhaustive privilege reviews are time and cost intensive and they delay the production of documents. Privilege reviews are particularly difficult with respect to electronic records which often, for practical reasons, cannot be thoroughly and individually reviewed within the discovery response times set by the Ground Rules. Including a clawback provision as a standard part of the Protective Order would avoid the negotiations and motions practice currently required to secure clawback protection and encourage timely, comprehensive document productions. The proposed rule in Section (A) above addresses most of the issues likely to come up with respect to interpreting and enforcing a clawback provision, including: (a) that inadvertent production does not waive attorney-client, work product or joint defense privileges; (b) the inadvertently produced documents must be returned or destroyed; (c) a time frame for the return Page 12

13 or destruction of the documents and production of a privilege log for the documents; and meet and confer requirement for any disputes; (d) a requirement that, unless a motion to compel is granted with respect to the document, the receiving party cannot use or refer to any information in the document; and (e) a provision allowing for a motion to compel, but making clear that such a motion does not delay the required return or destruction of the documents. III. Add Meet and Confer Requirement Regarding Electronic Discovery A. Proposal -- Add Early Meet and Confer Requirement to Ground Rules Incorporate the following procedures requiring the parties to confer on electronic discovery matters commencing with the first Discovery Committee conference : 1. Duty to Investigate and Disclose. Prior to the first Discovery Committee conference, counsel shall review with the client the client s information management systems and files, including currently maintained computer files as well as historical, archival, backup, and legacy computer files, whether in current or historic media or formats, such as digital evidence which may be used to support claims or defenses. Counsel shall also identify a person or persons with knowledge about the client s information management systems, including computer-based and other digital systems, with the ability to facilitate, through counsel, reasonably anticipated discovery. 2. Duty to Notify. A party seeking discovery of computer-based or other digital information shall notify the opposing party as soon as possible, but no later than the first Discovery Committee conference, and identify as clearly as possible the categories of information which may be sought. A party may supplement its request for computerbased and other digital information as soon as possible upon receipt of new information relating to digital evidence. 3. Duty to Meet and Confer. During the first Discovery Committee conference, the parties shall confer and attempt to agree on computer-based and other digital discovery matters, including the following: (a) Preservation and production of digital information; procedures to deal with inadvertent production of privileged information; whether restoration of deleted digital information may be necessary; whether back up or historic legacy data is within the scope of discovery; and the media, format, and procedures for producing digital information; (b) Limitations on the number of custodians and search terms for computer-based and other digital searches, and the proper timeframe for such searches; and Page 13

14 (c) Who will bear the costs of preservation, production, and restoration (if necessary) of any digital discovery. Pursuant to Discovery Committee procedures, all disputes on electronic discovery that were resolved and all disputes on which there is an impasse shall be reported in writing to the Administrative Law Judge. B. Proposal - Discuss Production Date for ESI The first Discovery Committee conference should also consider a date for production of source code or other highly confidential ESI requiring modifications to the Protective Order, including the scope of such production and proposed modifications to the Protective Order as follows: Proposed date for production ( Production Date ) of source code and other highly confidential electronic information requiring modifications to the Protective Order during discovery; Scope of production of source code and other highly confidential electronic information requiring modifications to the Protective Order, or to the extent the parties cannot agree, a proposed date prior to the Production Date for raising this dispute with the administrative law judge; Proposed Modifications to Protective Order, including, but not limited to: o site for delivery of source code or other highly confidential electronic information; o number of secured, password protected and non-network computer terminals receiving source code or other highly confidential electronic information; o persons receiving access; o length of time source code will be accessible; o limitations regarding communications including source code, or descriptions of source code or other highly confidential electronic information; o access to source code at depositions and Hearing; and/or o cost sharing. Page 14

15 1. Reasons for Proposals The ITC TLA Subcommittee on Electronic Discovery recommends that the parties be required to confer on electronic discovery matters commencing with the first Discovery Committee conference. Such a requirement would parallel the electronic discovery Meet-And- Confer requirements of the United States Federal District Courts, the Federal Rules of Civil Procedure, and exemplary Local Civil Rule 26.1(d) of the United States District Court for the District of New Jersey. Specifically, the requirements pertaining to electronic discovery that are followed in Fed. R. Civ. P. 26(d) and exemplary D.N.J. Local Civil Rule 26.1(d) discovery conferences, and in the submission of Fed. R. Civ. P. 26(f) Discovery Plans, would be paralleled by the incorporation of such procedures requiring the parties to confer on electronic discovery matters commencing with the first Discovery Committee conference followed by the reporting requirements pursuant to Discovery Committee procedures for all disputes on electronic discovery that were resolved and all disputes in which there is an impasse. V. Standardize Format of ESI Production The production of metadata apart from its native file may impose substantial costs, either in the extraction of such metadata from the native files, or in its review for purposes of redacting non-discoverable information contained in such metadata. Parties are expected to be cognizant of those costs in light of the various factors in [proposed] 19 C.F.R (c). The following principles should be utilized in determining whether metadata may be discovered. A. Proposal - General Principles Regarding ESI Production (1) Metadata is part of electronically stored information ( ESI ). Such metadata, however, may not be relevant to the issues presented or, if relevant, not be reasonably subject to discovery given the 19 C.F.R (c) cost-benefit factors. Therefore, it may be subject to cost-shifting under 19 C.F.R (e). Page 15

16 (2) Metadata may generally be viewed as either system metadata, substantive metadata, or embedded metadata. System metadata is data that is automatically generated by a computer system. For example, system metadata often includes information such as the author, date and time of creation, and the date a document was modified. Substantive metadata is data that reflects the substantive changes made to the document by the user. For example, it may include the text of actual changes to a document. While no generalization is universally applicable, system metadata is less likely to involve issues of work product and/or privilege. (3) Except as otherwise provided in paragraph (5), below, metadata, especially substantive metadata, need not be routinely produced, except upon agreement of the requesting and producing parties, or upon a showing of good cause in a motion filed by the requesting party. Consideration should be given to the production of system metadata and its production is encouraged in instances where it will not unnecessarily or unreasonably increase costs or burdens. As set forth above, upon agreement of the parties, the administrative law judge will consider entry of an order approving an agreement that a party may produce metadata in native files upon the representation of the recipient that the recipient will neither access nor review such data. This section does not address the substantive issue of the duty to preserve such metadata, the authenticity of such metadata, or its admissibility into evidence or use in the course of depositions or other discovery. (4) If a producing party produces ESI without some or all of the metadata that was contained in the ESI, the producing party should inform all other parties of this fact, in writing, at or before the time of production. (5) Some native files contain, in addition to substantive metadata and/or system metadata, embedded metadata, which for purposes of this section, means the text, numbers, content, data, or other information that is directly or indirectly inputted into a native file by a user and which is not typically visible to the user viewing the output display of the native file on screen or as a printout. Examples of embedded metadata include, but are not limited to, spreadsheet formulas (which display as the result of the formula operation), hidden columns, externally or internally linked files (e.g., sound files in PowerPoint presentations), references to external files and content (e.g., hyperlinks to HTML files or URLs), references and fields (e.g., the field codes for an auto-numbered document), and certain database information if the data is part of a database (e.g., a date field in a database will display as a formatted date, but its actual value is typically a long integer). Subject to 19 C.F.R (c)-(d), potential redaction of substantive metadata, and reduction in scope of production of embedded metadata, embedded metadata is generally discoverable and, in appropriate cases, see 19 C.F.R (d), should be produced as a matter of course. If the parties determine to produce embedded metadata, either in connection with a native file production or static image production in lieu of native file production, the parties should normally discuss and agree on use of appropriate tools and methods to remove other metadata, but preserve the embedded metadata, prior to such production. Page 16

17 1. Reason for Proposal The subcommittee believes that providing a template for the form of production of ESI would help make the early stages of discovery in investigations more efficient, in that it will prevent parties from spending needless time and money re-inventing the wheel to establish these common parameters. The parties would agree on the form of production during the electronic discovery meet-and-confer. To the extent the parties wish to alter the standard format, they are free to do so by agreement. An individual party may also seek to alter the standard format by demonstrating to the administrative law judge via motion that there is good cause to warrant some other set of criteria. The subcommittee has also discussed the production of metadata and whether to propose a presumption against the production of metadata, coupled with a requirement for a showing of good cause to obtain its production. The Executive Committee may wish to further consider this issue. Page 17

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