Producing Documents or Electronically Stored Information - A Case Study and Procedure

Transcription

1 Electronic Discovery Reference Model and Metadata March 5, 2012 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel, 2012.

2 Richard T. Robinson Manager of Technology Practice Support Gardere Wynne Sewell LLP 1601 Elm St., Suite 3000 Dallas, TX Richard T. Robinson is the Manager of Technology, Practice Support at Gardere Wynne Sewell, LLP. He is the founder and current President of the Dallas chapter of the Association of Litigation Support Professionals and is often called upon to consult and advise in matters of complex electronic discovery for the firm. After earning his undergraduate degree from Georgetown University, Rich Robinson began his legal technology career in 2000 in Boston, Massachusetts. He worked on, and later managed, the helpdesk of a large Bostonbased firm before moving into legal applications development. It was here that Mr. Robinson developed an appreciation for the complexities of the legal workflow and how technology could be utilized to increase productivity and efficiency. Moving to Rhode Island in 2003, Mr. Robinson joined a Providence-based law firm as a Litigation Technology Specialist. He immediately became involved in complex electronic discovery issues when he worked on collecting and analyzing a sql database in the State of Rhode Island vs. Lead Industries Association, et al, a landmark lead litigation public nuisance case that was the longest jury trial in Rhode Island history. In 2006, Mr. Robinson joined a firm in Austin, TX, as their Director of Litigation Technology where he continued develop his expertise in electronic discovery. Moving to Dallas in 2009, Rich served as the ediscovery Specialist for Jackson Walker, and as an ediscovery Consultant for XACT Data Discovery, before finally joined Gardere Wynne Sewell LLP in March of 2011.

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40 = Hash Totals Math calculation to verify accuracy of count Allows experts to validate that data is the same

41 Disk Fragmentation Delete v. Undelete Copying over all files Slack space

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44 (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use.

45 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

46 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

47 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

48 (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

49 Texas Rule of Civil Procedure 196

50 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

51 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. If the court orders the responding party to comply with the request, the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.

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66 248 FRD 169, Production of All Responsive Documents Generated After February 10, 2003 Impax contends that, except for self-selected discrete categories, Wyeth is refusing to look for or produce documents created or generated after February 10, Wyeth, in response, contends that documents created after February 10, 2003 are irrelevant and that updating the search would be burdensome and unlikely to produce relevant material. Wyeth also contends that it has offered to update searches in those areas that might possibly have subsequent relevant documents generated after February The Court finds that Wyeth's proffered production is reasonable. Wyeth has identified those areas where relevant documents may have been created or generated after February 2003, and is willing to continue to augment its discovery responses. Since Impax has not demonstrated that the broad search it asks for will generate additional relevant documents, the Court concludes that the burden of production on Defendant outweighs its likely benefit to Impax. Accordingly, this portion of Impax's Motion is denied.

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72 Electronic Discovery Reference Model and Metadata March 5, 2012 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel, 2012.