COMING: NEW FEDERAL RULES ON E-DISCOVERY
|
|
- Brittney Pierce
- 8 years ago
- Views:
Transcription
1 COMING: NEW FEDERAL RULES ON E-DISCOVERY By: M. Sean Fosmire Garan Lucow Miller, P.C. Executive Summary Now that e-filing is up and running, the federal courts have moved on to e-discovery and have adopted detailed rules to describe the procedures and parameters of the discovery of electronically stored data. These rules are scheduled to take effect on December 1, 2006, unless congress takes contrary action. This article provides a summary of the main points of the rules, with which all counsel who practice in the federal courts must be familiar. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (the Standing Committee ) has accepted the recommendations of the Advisory Committee on the Federal Rules of Civil Procedure on the adoption of amendments to several rules intended to update their provisions pertaining to the retention of electronic documents and to the discovery of documents produced, stored, and maintained in electronic format. These amendments were approved by the Supreme Court in April 2006, have been transmitted to Congress, and will take effect on December 1, 2006, absent contrary action by Congress. The affected rules are: Rule 16 Initial conferences Rule 26 General provisions for discovery Rule 33 Interrogatories Rule 34 Document production Rule 37 Sanctions regarding discovery Rule 45 Subpoenas In addition, the Advisory Committee on Evidence Rules is proposing a related amendment to Rule 502 of the Federal Rules of Evidence, to address the issue of waiver of attorney-client privilege after selective or inadvertent disclosure of privileged information. Since the Federal Rules of Evidence are statutorily-enacted, this amendment will require affirmative action by Congress. See 28 USC 2074(b). The amendment recognizes in general that there cannot be a single solution that can be imposed uniformly in every case and as to every party. It thus directs that the parties discuss the issues of production and translation at the time of their Rule 26(f) conference. Initial conferences and general provisions (Changes to Rules 16 and 26) The former phrase data compilations used in Rule 26(a), included in the list of items as to which discovery or disclosure must be allowed, will be changed to the broader phrase electronically stored information. That phrase, which can be abbreviated as ESI, is used in all of the amendments to the affected rules. The amendment adds a new subsection 5 under Rule 16(b) to include provisions for disclosure or discovery of electronically stored information as one of the matters to be addressed in the Court s order. Rule 26(f), governing mandatory conferences between counsel and disclosure without discovery requests, adds a reference to require that counsel discuss any issues relating to preserving discoverable information as well as any issues relating to disclosure or discovery of ESI, including (importantly) the form in which ESI shall be produced. (See the discussion of rule 34 below for more information on this issue.) It also requires that the parties address any claims of privilege or work product protection. The amendment recognizes in general that there cannot be a single solution that can be imposed uniformly in every case and as to every party. It thus directs that the parties discuss the issues of production and translation at the time of their Rule 26(f) conference, and anticipates that the court will resolve any early-recognized issues or disagreements at the Rule 16 Conference. The Committee Notes recognize that the court must try to strike a balance between the need to provide discovery and the need of a party to continue routine operations critical to ongoing activities. Thus the issue of the preservation of ESI as it exists (or as it existed at a particular point in time) is another issue that needs to continued on page 22 Vol. 23 No. 2 October
2 Continued from page 21 be addressed by the parties under Rule 26(f) and by the court during the Rule 16 Conference. In this context, though, the Committee Notes caution: The requirement that the parties discuss preservation does not imply that courts should routinely enter preservation orders. A preservation order entered over objections should be narrowly tailored. Ex parte preservation orders should issue only in exceptional circumstances. The Committee Notes do not mention the question of discoverability of secondary and redundant means of storage of ESI, but that is again an issue that should be addressed at both conferences. Unlike paper documents, ESI is routinely copied and duplicated for security and backup purposes, often numerous times, and disputes regarding the extent to which a party should be able to obtain discovery of such archives have arisen in a number of cases. There are in fact at least ten different types of secondary data, beyond the primary electronic data itself. The amendment does not purport to address issues relating to where discoverable ESI may come from; that is an issue that the courts will have to resolve on a case by case basis. Interrogatories and document requests (Changes to Rules 33 and 34) Rule 33(d) (interrogatories) is proposed to be amended to allow a party to designate ESI as a source of information as an alternative to answering interrogatories, in the same fashion as the designation of business records for this purpose. Under the proposed amendment to Rule 34 (document requests), the scope of production is widely defined to include anything stored in any medium from which information may be obtained. The previous provisions requiring that the information may be required to be translated, if necessary, by the respondent into reasonably useful form are preserved. There is a significant new provision relating to the form that ESI may take. The requesting party may now specify the form of production in his request. The amendment to Rule 34(b) would provide that: The request may specify the form or forms in which electronically stored information is to be produced. The form of production can be a crucial issue. ESI may be kept on a party s computers or server banks in any number of different formats, on different operating systems and platforms, and using different software products. The responding party may file an objection to the specified form of production, and the amendment would require the responding party who objects to state the form or forms it intends to use. It also requires the respondent to designate a form in which the ESI will be produced if the requesting party did not specify a form of production. The form of production can be a crucial issue. ESI may be kept on a party s computers or server banks in any number of different formats, on different operating systems and platforms, and using different software products. The courts and the parties have to consider not only Windows and MacOS as commonly-used operating systems; many large corporations operate mainframe computers manufactured by Sun Microsystems, running Sun s Sparc operating system, or by IBM, which might run any of the numerous flavors of Unix as well as Windows. Many network or internet servers are based on Unix or Linux operating systems. The questions which might arise when such ESI is at issue include: Should a party be required to produce ESI in its original format? Should a party be permitted to produce ESI in its original format? Should a party be required to produce ESI in a converted electronic format? Should a party be required to produce ESI as printed pages? Should a party be permitted to produce ESI as printed pages? Each of the various options has benefits, and each has disadvantages. Responding to a discovery request by printing documents to paper provides a well-recognized product, readable by everyone, but of course this approach sacrifices many of the advantages of using electronic information. Text on paper cannot be searched and cannot be copied and pasted to other documents. Producing e-documents in their original format maintains the fidelity and usefulness of the data, if the recipient also has the system and the software which can make sense of them, but if it does not, it is no better than electronic gibberish. In many cases, conversion of the data to a common denominator format which can bridge the gap between the producer and recipient is the best solution. Information contained in databases or spreadsheets can often be exported to a comma-delimited or tabdelimited text file, as one example. Printing some forms of data to Adobe Acrobat, as another example, maintains the usefulness of the machinereadable text and at the same time pro- 22 Michigan Defense Quarterly
3 duces a cross-platform product which can be read on any computer running any operating system. (It will not reliably include all metadata contained in the original, though, and that metadata may in some fairly unusual cases be relevant and discoverable.) There is a logistical issue as well. Although neither the amendment nor the Notes mentions this fact, the provisions relating to the form in which ESI is produced should include consideration of the physical storage media on which the ESI is temporarily stored for transmission and distribution. There are various types of portable media that can be used for these purposes, beyond the familiar CDs and DVDs, but not all will be interchangeable with all systems. The default method of response (if the parties do not agree, if the court does not enter an order, or if the requesting party does not specify) is that the responding party must produce ESI in a form in which it is ordinarily maintained, or in a form that is reasonably useable. Lastly, it specifies that a party need not produce the same ESI in more than one form. It is important to note that this restriction relates to the end product only; the amendment does not restrict the sources from which ESI may be requested, and it does not prohibit requesting ESI from several similar sources. As an example, if a backup system includes multiple sequential versions of the same document, with changes over time, or if it shows that there were no such changes over time, there is nothing in the amendment that restricts the right to secure this information, if it is relevant to the issues involved in the case. The Committee Notes again observe that sound policy militates against attempting to be too inclusive in defining what comes under the broad definition of ESI. They comment: The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(l) is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as . The rule covers either as documents or as electronically stored information information stored in any medium, to encompass future developments in computer technology. Rule 34(a)(l) The default method of response (if the parties do not agree, if the court does not enter an order, or if the requesting party does not specify) is that the responding party must produce ESI in a form in which it is ordinarily maintained, or in a form that is reasonably useable. is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments. They also observe that the requirement that information be translated... into reasonably useful form relates solely to machine translation, and does not include a requirement that foreign languages be translated into English. The Rule 34(a) requirement that, if necessary, a party producing electronically stored information translate it into reasonably usable form does not address the issue of translating from one human language to another. See In re Puerto Rico Elect. Power Auth., 687 F.2d 501, (1st Cir. 1989). Sanctions for non-compliance (Changes to Rule 37) This rule, which governs sanctions for failure to provide discovery, would be amended to add one very important limitation on the power of the court to sanction a party or its attorney for spoliation of evidence as a result of routine computer maintenance. The proposed new subrule 37(f) would specify: (f) Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. The Committee Notes observe: [This amendment] focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. There would be a restriction on the scope of this subsection, however. Rule 37(f) applies to information lost due to the routine operation of an information continued on page 24 Vol. 23 No. 2 October
4 Continued from page 23 system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a litigation hold. Among the factors that bear on a party s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information... 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. Thus, an attorney representing a party which maintains ESI may not use the amended rule to disregard the obligation that would otherwise apply, under the Federal Rules and under the case law which has been developed to interpret and apply them to ESI, to ensure that reasonable steps are taken, particularly after a lawsuit is filed, to maintain the integrity of ESI. Subpoenas (Rule 45) The amendment of this rule adds ESI as a class of documents that can be obtained, and specifies copying, testing, or sampling in addition to inspection as an activity that the party receiving the subpoena (the respondent) must allow. The amendment of this rule adds ESI as a class of documents that can be obtained, and specifies copying, testing, or sampling in addition to inspection as an activity that the party receiving the subpoena (the respondent) must allow. Like Rule 34, it allows the issuing attorney to specify the form in which ESI is to be produced. Subrule 45(C)(2)(A)(b) similarly allows the respondent to object to the specified form of production, and for the issuance of an order to resolve the dispute if needed. Privilege (FRE 502) We will not attempt a detailed discussion of the proposed amendments governing the release of privileged information. The problems become acute when electronic information is disclosed because the volume of documentation and information is often significantly higher than in the past. The proposed amendments would modify Rule 502 to provide that 1. An inadvertent disclosure of privileged material is not deemed a waiver of privilege if the disclosing party took reasonable precautions to safeguard the confidentiality of the information and if he or she took reasonably prompt action to rectify the error. 2. A limited disclosure to a governmental agency is not a waiver as to later use of the information in litigation. 3. These default provisions may be modified by agreement between the parties or by order of the court. The Committee notes observe that the circuit courts have issued conflicting rulings on these issues, and that the amendment would provide needed uniformity and predictability to attorneys and to litigants. Summary With the possible exceptions of the form of production provisions under Rule 34 and the good faith spoliation defense added under Rule 37, these changes are evolutionary rather than revolutionary. They reflect the growing need for courts and litigants to deal with the fact that businesses now rely heavily on electronic means of communication and storage of information, and they reflect the reality that outsiders sometimes will have to be given access to that information to the same extent that they may be given access to other records maintained in the course of operations. The amendment and the accompanying notes do recognize a need to reconcile the inherent conflicts and to balance the need for discovery in litigation against the need of a business to keep its operations 24 Michigan Defense Quarterly
5 going forward without undue disruption. The good faith exception under Rule 37 should provide some needed relief from overly enthusiastic spoliation accusations. Although the amendments themselves do not specifically so state, sound practice and the case law mentioned in recent issues of this publication suggest that it is incumbent upon every attorney to confer with the client as early as possible in order to explore these issues and to formulate a plan of action in advance, so that both attorney and the client will be prepared to respond when the discovery requests begin coming in. It may be helpful to take guidance from local rule 26.1 of the Middle District of Pennsylvania, adopted in December 2005, which requires that lawyers: inquire into the computerized information-management systems used by their clients so that they are knowledgeable about the operation of those Sound practice and the case law mentioned in recent issues of this publication suggest that it is incumbent upon every attorney to confer with the client as early as possible in order to explore these issues and to formulate a plan of action in advance systems, including how information is stored and how it can be retrieved. inform their clients of the need to preserve information stored in computerized informationmanagement systems so that information relevant to the claims or defenses in the case is not in any way destroyed. For those who are interested, the collection of these proposals, the versions as considered by the Committee, and the full text of all Committee notes can be found online at Reports/ST pdf. The report of the Advisory Committee on the proposed amendment to FRE 502 dated May 15, 2006 can be found at ports/ev pdf. General information about the rules and the rulemaking process can be found at gov/rules/. Sean Fosmire is a partner in the Marquette office of Garan Lucow Miller, P.C. and a regular contributor to the Quarterly. His address is sfosmire@garanlucow.com. NEW SECTION CHAIRS Labor & Employment Dean F. Pacific Dean F. Pacific is a Partner at his firm, Warner Norcross & Judd LLP. He concentrates his practice on litigation and labor and employment law.dpacific@wnj.com Labor Practice Management Patrick F. Geary Patrick F. Geary is a shareholder and CEO of Smith Haughey Rice & Roegge. He also chairs the Product Liability Department. pgeary@shrr.com Vol. 23 No. 2 October
grouped into five different subject areas relating to: 1) planning for discovery and initial disclosures; 2)
ESI: Federal Court An introduction to the new federal rules governing discovery of electronically stored information In September 2005, the Judicial Conference of the United States unanimously approved
More informationMichigan's New E-Discovery Rules Provide Ways to Reduce the Scope and Burdens of E-Discovery
1 PROFESSIONALS MILLER CANFIELD LAW FIRM B. Jay Yelton III Michigan's New E-Discovery Rules Provide Ways to Reduce the Scope and Burdens of E-Discovery To a large extent Michigan's new e-discovery rules
More informationIn-House Solutions to the E-Discovery Conundrum
125 In-House Solutions to the E-Discovery Conundrum Retta A. Miller Carl C. Butzer Jackson Walker L.L.P. April 21, 2007 www.pointmm.com I. OVERVIEW OF THE RULES GOVERNING ELECTRONICALLY- STORED INFORMATION
More informationREALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY
REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY Steven M. Gruskin Carl J. Pellegrini Sughrue Mion, PLLC 2100 Pennsylvania Ave. NW Washington, DC 20037 www.sughrue.com On December 1, 2006, the Federal
More informationElectronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys
Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys By Ronald S. Allen, Esq. As technology has evolved, the federal courts have
More informationThe Top Ten List (and one) of Changes to the Federal Rules
The Top Ten List (and one) of Changes to the Federal Rules The List (1) The rules now refer to electronically stored information, which is on equal footing with paper. Rules 26(a)(1), 26(b)(2), 26(b)(5)(B),
More informationE-Discovery: New to California 1
E-Discovery: New to California 1 Patrick O Donnell and Martin Dean 2 Introduction The New Electronic Discovery Act The new Electronic Discovery Act, Assembly Bill 5 (Evans), has modernized California law
More informationDISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP
DISCOVERY OF ELECTRONICALLY-STORED INFORMATION IN STATE COURT: WHAT TO DO WHEN YOUR COURT S RULES DON T HELP Presented by Frank H. Gassler, Esq. Written by Jeffrey M. James, Esq. Over the last few years,
More informationAmendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents
Amendments to Federal Rules of Civil Procedure Electronic Discovery effective Dec. 1, 2006 Copyright David A. Devine GROH EGGERS, LLC Rules amended: 16, 26, 33, 34, 37 & 45 Sources of information: Rules
More informationA Brief Overview of ediscovery in California
What is ediscovery? Electronic discovery ( ediscovery ) is discovery of electronic information in litigation. ediscovery in California is governed generally by the Civil Discovery Act. In 2009, the California
More informationElectronic Discovery
Electronic Discovery L. Amy Blum, Esq. UCLA University of California, Los Angeles 1 Topics Not Covered Best practices for E-mail E use and retention in the ordinary course of business Records Disposition
More informationFEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step.
A BNA, INC. DIGITAL DISCOVERY & E-EVIDENCE! VOL. 7, NO. 11 232-235 REPORT NOVEMBER 1, 2007 Reproduced with permission from Digital Discovery & e-evidence, Vol. 7, No. 11, 11/01/2007, pp. 232-235. Copyright
More informationA PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE
A PRIMER ON THE NEW ELECTRONIC DISCOVERY PROVISIONS IN THE ALABAMA RULES OF CIVIL PROCEDURE Effective February 1, 2010, the Alabama Rules of Civil Procedure were amended to provide for and accommodate
More information2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE BOSTON E-DISCOVERY SUMMIT 2013 DECEMBER 3, 2013
1 2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE BOSTON E-DISCOVERY SUMMIT 2013 DECEMBER 3, 2013 CONTEXT 2006 FEDERAL COURT E-DISCOVERY AMENDMENTS The 2006 Federal E-Discovery
More informationTHE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS
THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS Cynthia L. Gibson, Esq. Katz, Teller, Brant & Hild 255 East Fifth Street Suite 2400 Cincinnati, OH 45202 (513) 977-3418 cgibson@katzteller.com
More informationNew E-Discovery Rules: Is Your Company Prepared?
November 2006 New E-Discovery Rules: Is Your Company Prepared? By Maureen O Neill, Kirby Behre and Anne Nergaard On December 1, 2006, amendments to the Federal Rules of Civil Procedure ( FRCP ) concerning
More informationIN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS DIVISION. v. Case No. [MODEL] ORDER REGARDING E-DISCOVERY IN PATENT CASES
[NOTE: This is a redline/strikeout version of Appendix P, the Model Order Regarding E- Discovery in Patent Cases. This version shows changes that were made to Federal Circuit Chief Judge Randall Rader
More informationIN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682. Pretrial Conferences; Scheduling; Management.
IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682 Amending Civil Rules 16, 26, 33, 34, 37, and 45 concerning Discovery of Electronic Information IT IS ORDERED: 1. Civil Rule 16 is amended to read
More informationAssembly Bill No. 5 CHAPTER 5
Assembly Bill No. 5 CHAPTER 5 An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280,
More informationUNDERSTANDING E DISCOVERY A PRACTICAL GUIDE. 99 Park Avenue, 16 th Floor New York, New York 10016 www.devoredemarco.com
UNDERSTANDING E DISCOVERY A PRACTICAL GUIDE 1 What is ESI? Information that exists in a medium that can only be read through the use of computers Examples E-mail Word Documents Databases Spreadsheets Multimedia
More informationELECTRONIC DISCOVERY. Dawn M. Curry
ELECTRONIC DISCOVERY Dawn M. Curry Nutter McClennen & Fish LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Telephone 617.439.2000 www.nutter.com E-Discovery Facts 93-99% of
More informationE-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE. Ana Maria Martinez April 14, 2011
E-DISCOVERY & PRESERVATION OF ELECTRONIC EVIDENCE Ana Maria Martinez April 14, 2011 This presentation does not present the views of the U.S. Department of Justice. This presentation is not legal advice.
More informationHow To Schedule A Case In The Court Of Appeals
IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE IN RE: AMENDMENTS TO THE TENNESSEE RULES OF CIVIL PROCEDURE Filed: June 20, 2008 ORDER The Advisory Commission on the Rules of Practice & Procedure annually
More informationANALYSIS OF ORIGINAL BILL
Franchise Tax Board ANALYSIS OF ORIGINAL BILL Author: Evans Analyst: Deborah Barrett Bill Number: AB 5 See Legislative Related Bills: History Telephone: 845-4301 Introduced Date: December 1, 2008 Attorney:
More informationE-Discovery in Practice: A Roadmap for Financial Institutions
E-Discovery in Practice: A Roadmap for Financial Institutions Martha R. Mora Martha R. Mora, Esq. ARHM&F Avila Rodriguez Hernandez Mena & Ferri LLP 2525 Ponce de Leon Blvd., Suite 1225, Coral Gables, Florida
More informationPROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES
PROPOSED ELECTRONIC DATA DISCOVERY GUIDELINES FOR THE MARYLAND BUSINESS AND TECHONOLOGY CASE MANAGEMENT PROGRAM JUDGES What follows are some general, suggested guidelines for addressing different areas
More informationLegal Arguments & Response Strategies for E-Discovery
Legal Arguments & Response Strategies for E-Discovery The tools to craft strategic discovery requests & mitigate the risks and burdens of production. Discussion Outline Part I Strategies for Requesting
More informationFriday 31st October, 2008.
Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules
More informationRule 26. General Provisions Governing Discovery.
Published on Arkansas Judiciary (https://courts.arkansas.gov) Rule 26. General Provisions Governing Discovery. (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods:
More informationE-DISCOVERY IN FEDERAL COURT: SIX CHANGES YOU SHOULD MAKE TO YOUR PRACTICE IN THE DISCOVERY PHASE OF THE CASE By Kary Pratt
E-DISCOVERY IN FEDERAL COURT: SIX CHANGES YOU SHOULD MAKE TO YOUR PRACTICE IN THE DISCOVERY PHASE OF THE CASE By Kary Pratt 1. YOU MUST CHANGE THE WAY YOU REQUEST DOCUMENTS - FRCP 34(a) explicitly recognizes
More informationCORPORATE RECORD RETENTION IN AN ELECTRONIC AGE (Outline)
CORPORATE RECORD RETENTION IN AN ELECTRONIC AGE (Outline) David J. Chavolla, Esq. and Gary L. Kemp, Esq. Casner & Edwards, LLP 303 Congress Street Boston, MA 02210 A. Document and Record Retention Preservation
More informationDOCUMENT RETENTION STRATEGIES FOR HEALTHCARE ORGANIZATIONS
Overview. DOCUMENT RETENTION STRATEGIES FOR HEALTHCARE ORGANIZATIONS A comprehensive and consistently applied document retention policy is necessary to reduce the risk of being charged with spoliation
More informationCOURT OF QUEEN S BENCH OF MANITOBA PRACTICE DIRECTION GUIDELINES REGARDING DISCOVERY OF ELECTRONIC DOCUMENTS
COURT OF QUEEN S BENCH OF MANITOBA PRACTICE DIRECTION GUIDELINES REGARDING DISCOVERY OF ELECTRONIC DOCUMENTS Introduction While electronic documents are included in the definition of document contained
More informationOverview of E-Discovery and Depositions in U.S. IP Litigation
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Overview of E-Discovery and Depositions in U.S. IP Litigation Naoki Yoshida April 19, 2013 TOPICS E-Discovery in U.S. IP Litigation Depositions in U.S.
More informationSupreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods.
Supreme Court Rule 201. General Discovery Provisions (a) Discovery Methods. Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination
More informationE-Discovery Best Practices
José Ramón González-Magaz jrgonzalez@steptoe.com E-Discovery Best Practices www.steptoe.com November 10, 2010 Importance of E-Discovery 92% of all data is ESI. Source: Berkeley Study. 97 billion e-mails
More informationE-DISCOVERY GUIDELINES. Former Reference: Practice Directive #6 issued September 1, 2009
CIVIL PRACTICE DIRECTIVE #1 REFERENCE: CIV-PD #1 E-DISCOVERY GUIDELINES Former Reference: Practice Directive #6 issued September 1, 2009 Effective: July 1, 2013 Introduction 1. While electronic documents
More informationE-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers
MARCH 7, 2007 E-Discovery: The New Federal Rules of Civil Procedure A Practical Approach for Employers By Tara Daub and Christopher Gegwich News of the recent amendments to the Federal Rules of Civil Procedure
More informationThe Law On Discovery and Production of Electronic Evidence: Where Are We Now? Where Are We Going? Glenn A. Smith. June 10, 2009
The Law On Discovery and Production of Electronic Evidence: Where Are We Now? Where Are We Going? Glenn A. Smith June 10, 2009 Discovery On January 1, 2010, Rules will be amended by adding the following
More informationThe Intrusive Nature of Discovery in U.S. Patent Litigation
The Intrusive Nature of Discovery in U.S. Patent Litigation October 16, 2014 Jeffrey R. Schaefer jschaefer@ulmer.com All patent infringement litigation in the U.S. takes place in federal courts. Cases
More informationMeasures Regarding Litigation Holds and Preservation of Electronically Stored Information (ESI)
University of California, Merced Measures Regarding Litigation Holds and Preservation of Electronically Stored Information (ESI) Responsible Officials: Executive Vice Chancellor and Provost Vice Chancellor
More informationGeneral Items Of Thought
ESI PROTOCOLS & CASE LONG BUDGETS General Items Of Thought What s a GB =??? What Are Sources Of Stored Data? What s BYOD mean??? The Human Factor Is At Play! Litigation Hold Duty Arises When? Zubulake
More informationSEVENTH CIRCUIT ELECTRONIC DISCOVERY PILOT PROGRAM FOR DISCOVERY OF ELECTRONICALLY STORED
SEVENTH CIRCUIT ELECTRONIC DISCOVERY PILOT PROGRAM PROPOSED PRINCIPLES FOR DISCOVERY OF ELECTRONICALLY STORED INFORMATION Sean M. Hendricks, J.D. Client Services Manager (312) 893-7321 / shendricks@forensicon.com
More informationBEYOND THE HYPE: Understanding the Real Implications of the Amended Federal Rules of Civil Procedure. A Clearwell Systems White Paper
BEYOND THE HYPE: UNDERSTANDING THE REAL IMPLICATIONS OF THE AMENDED FRCP PA G E : 1 BEYOND THE HYPE: Understanding the Real Implications of the Amended Federal Rules of Civil Procedure A Clearwell Systems
More informationDepartment of Veterans Affairs VA Directive 6311 VA E-DISCOVERY
Department of Veterans Affairs VA Directive 6311 Washington, DC 20420 Transmittal Sheet June 15, 2012 VA E-DISCOVERY 1. REASON FOR ISSUE: To establish policy concerning the care and handling of documents
More informationPreservation and Production of Electronic Records
Policy No: 3008 Title of Policy: Preservation and Production of Electronic Records Applies to (check all that apply): Faculty Staff Students Division/Department College _X Topic/Issue: This policy enforces
More informationCIVIL DISCOVERY STANDARDS* AUGUST 1999 [NOVEMBER 2003 DRAFT AMENDMENTS TO ELECTRONIC DISCOVERY STANDARDS]
http://www.abanet.org/litigation/taskforces/electronic/amendments.doc CIVIL DISCOVERY STANDARDS* AUGUST 1999 [NOVEMBER 2003 DRAFT AMENDMENTS TO ELECTRONIC DISCOVERY STANDARDS] *The Standards, which appear
More informationReduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY
2016 CLM Annual Conference April 6-8, 2016 Orlando, FL Reduce Cost and Risk during Discovery E-DISCOVERY GLOSSARY Understanding e-discovery definitions and concepts is critical to working with vendors,
More informationIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Regents of the University of Colorado, The v. Allergan, Inc. et al Doc. 69 Civil Action No. 1:14-cv-01562-MSK-NYW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO THE REGENTS OF THE UNIVERSITY
More informationUnderstanding ediscovery and Electronically Stored Information (ESI)
Copyright The information transmitted in this document is intended only for the addressee and may contain confidential and/or privileged material. Any interception, review, retransmission, dissemination
More informationData Preservation Duties and Protocols
Data Preservation Duties and Protocols November 2008 HOU:2858612.3 Discussion Outline I. The Differences Between Electronic and Paper Discovery II. The Parameters of Electronic Discovery III. Rule 37(e)
More informationE-DISCOVERY IN THE US
E-DISCOVERY IN THE US A PRIMER Changing legal requirements and growing volumes of electronically stored information have made the discovery process more daunting and costly than ever before. This article
More informationE-Discovery Quagmires An Ounce of Prevention is Worth a Pound of Cure Rebecca Herold, CISSP, CISA, CISM, FLMI Final Draft for February 2007 CSI Alert
E-Discovery Quagmires An Ounce of Prevention is Worth a Pound of Cure Rebecca Herold, CISSP, CISA, CISM, FLMI Final Draft for February 2007 CSI Alert While updating the two-day seminar Chris Grillo and
More informationLitigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S
Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S What is a Litigation Hold Notice? Notice from an authorized department (e.g., Attorney General s Office Torts
More informationIN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION. Case No. 5:07-CV-231-F
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION Case No. 5:07-CV-231-F PAMELA L. HENSLEY, ) ) Plaintiff, ) ) v. ) ) PROPOSED JOINT JOHNSTON COUNTY BOARD
More informationPurpose: To ensure that e-discovery Requests and Litigation Hold Notices are received, routed and responded to in a timely and thorough manner.
No. IT 135 Effective Date: 7-1-2011 Last Revised Date: 6-23-2014 Approved By: IT Director Policy Name: E-Discovery Policy Citywide Policy _ IT Policy _ IT Procedure X Purpose: To ensure that e-discovery
More informationArchiving and The Federal Rules of Civil Procedure: Understanding the Issues
Archiving and The Federal Rules of Civil Procedure: Understanding the Issues An ArcMail Technology Research Paper ArcMail Technology, Inc. 401 Edwards Street, Suite 1620 Shreveport, Louisiana 71101 www.arcmailtech.com
More informationMetadata, Electronic File Management and File Destruction
Metadata, Electronic File Management and File Destruction By David Outerbridge, Torys LLP A. Metadata What is Metadata? Metadata is usually defined as data about data. It is a level of extra information
More informationCase 1:13-cv-00586-AWI-SAB Document 41 Filed 02/20/14 Page 1 of 13
Case :-cv-00-awi-sab Document Filed 0// Page of 0 DALE L. ALLEN, JR., SBN KEVIN P. ALLEN, SBN 0 ALLEN, GLAESSNER & WERTH, LLP 0 Montgomery Street, Suite 0 San Francisco, California 0 Telephone: () -00
More informationHong Kong High Court Procedure E-Discovery: Practice Direction Effective September 1, 2014
CLIENT MEMORANDUM Hong Kong High Court Procedure E-Discovery: Practice Direction Effective September 1, 2014 August 28, 2014 Mandatory application of e-discovery Mandatory application of e-discovery to
More informationElectronic Evidence and Discovery: The Changes in the Federal Rules. April 25, 2007 Bill Belt
Electronic Evidence and Discovery: The Changes in the Federal Rules April 25, 2007 Bill Belt Key dates» 2000 Judge Scheindlin coins term ESI in Boston College Law Review Article.» 2000 Chair of the Advisory
More informationE-Discovery for Paralegals: Definition, Application and FRCP Changes. April 27, 2007 IPE Seminar
E-Discovery for Paralegals: Definition, Application and FRCP Changes April 27, 2007 IPE Seminar Initial Disclosures ESI Electronically Stored Information FRCP 26(a)(1)(B) all ESI must be disclosed initially
More informationwww.salixdata.com 513-381-2679
Electronic Discovery Presented by: Jonathan Adams www.salixdata.com 513-381-2679 Our Goal Explain E-Discovery in layman s terms Equip you to be able to add value to your organization SALIX is the region
More informationREED COLLEGE. ediscovery GUIDELINES FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS
REED COLLEGE ediscovery GUIDELINES FOR PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS TABLE OF CONTENTS A. INTRODUCTION... 1 B. THE LANDSCAPE OF ELECTRONIC RECORDS SYSTEMS... 1 1. Email Infrastructure...
More information4/10/2015. Be Prepared: How The New Changes To The FRCP Affect Information Governance. Your Presenters. Agenda
Be Prepared: How The New Changes To The FRCP Affect Information Governance Presented by John Isaza, Esq., FAI CEO, Information Governance Solutions, LLC Wednesday, April 15, 2015 1:00 p.m. (PDT) Your Presenters
More informationPRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS
PROCEDURE 4040P Community Relations PRESERVATION AND PRODUCTION OF ELECTRONIC RECORDS Electronic Discovery Committee To help meet its obligations, the WSD uses an Electronic Discovery Committee, made up
More informationFive Rules for Discovery of Electronically Stored Information
Five Rules for Discovery of Electronically Stored Information Eastern North Carolina Inn of Court Spring Meeting New Bern, NC May 17, 2012 M ARK SCRUGGS C LAIMS COUNSEL L AWYERS MUTUAL 5020 Weston Parkway,
More informationCalifornia Enacts New E-Discovery Rules that Mirror Federal Court E-Discovery Rules - with One Exception
A Timely Analysis of Legal Developments A S A P In This Issue: July 2009 On June 30, 2009 California became the 22nd state to enact separate rules that specifically address electronic discovery. The new
More informationand ediscovery Peter Pepiton ediscovery Product Manager CA Information Governance
Electronic Record Retention and ediscovery Peter Pepiton ediscovery Product Manager CA Information Governance Agenda What is all this ediscovery buzz? Email is major focus of ESI Impact of New FRCP rules
More informationGUIDELINES FOR USE OF THE MODEL AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION
GUIDELINES FOR USE OF THE MODEL AGREEMENT REGARDING DISCOVERY OF ELECTRONICALLY STORED INFORMATION Experience increasingly demonstrates that discovery of electronically stored information ( ESI poses challenges
More informationINTERNET ISSUES: PROTECTING TRADE SECRETS NEW E-DISCOVERY RULES. William R. Denny Potter Anderson & Corroon LLP September 26, 2006
INTERNET ISSUES: PROTECTING TRADE SECRETS NEW E-DISCOVERY RULES William R. Denny Potter Anderson & Corroon LLP September 26, 2006 Agenda What is a Trade Secret? Tracking Down the Anonymous Blogger Strategies
More informationCorporate Governance - The Importance of a Compliant Record Retention Program. by Christopher N. Weiss 1
Corporate Governance - The Importance of a Compliant Record Retention Program by Christopher N. Weiss 1 A. Rationale for a Sound Record Retention Policy Record retention is crucial to disciplined corporate
More informationDiscussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners
Discussion of Electronic Discovery at Rule 26(f) Conferences: A Guide for Practitioners INTRODUCTION Virtually all modern discovery involves electronically stored information (ESI). The production and
More informationFDU - Records Retention policy Final.docx
Records and Information Management Program Policy and Procedure Responsible Office Office of the General Counsel Effective Date 04/01/2012 Responsible Official General Counsel Last Revision I. Rationale
More informationNEW RULES FOR ELECTRONICALLY STORED INFORMATION
April 3, 2007 NEW RULES FOR ELECTRONICALLY STORED INFORMATION SUMMARY: On December 1, 2006, the federal courts enacted new rules to address electronically stored information ( ESI ) such as emails, reports,
More informationDOCSVAULT WhitePaper. Concise Guide to E-discovery. Contents
WhitePaper Concise Guide to E-discovery Contents i. Overview ii. Importance of e-discovery iii. How to prepare for e-discovery? iv. Key processes & issues v. The next step vi. Conclusion Overview E-discovery
More informationRule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver. (a) Scope of waiver. In federal proceedings, the waiver by
Advisory Committee on Evidence Rules Proposed Amendment: Rule 502 Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (a) Scope of waiver. In federal proceedings, the waiver by
More informationThe e-discovery edge: Expertise and preparation can save millions *
The e-discovery edge: Expertise and preparation can save millions * magine having to produce every e-mail you've sent or received in the past year, including ones you've deleted. Then add every spreadsheet
More informationE-Discovery in Michigan. Presented by Angela Boufford
E-Discovery in Michigan ESI Presented by Angela Boufford DISCLAIMER: This is by no means a comprehensive examination of E-Discovery issues. You will not be an E-Discovery expert after this presentation.
More informationSet out below are our comments, which are quite minor, on each of the specific guidelines.
Vincent T. Chang, Chair Federal Courts Committee New York County Lawyers Association 14 Vesey Street New York, NY 10007 March 20, 2013 COMMENTS OF THE NEW YORK COUNTY LAWYERS ASSOCIATION FEDERAL COURTS
More informationCounsel must be fully familiar with the Uniform Civil Rules for the Supreme Court 22 NYCRR Part 202.
JUSTICE GERALD E. LOEHR, J.S.C. Rockland County Supreme Court 1 South Main Street New City, New York 10956 Courtroom 1 Tel: (845) 483-8343 Fax: (845) 708-7236 Staff Bruce J. Pearl, Principal Law Secretary
More informationLEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES
LEGAL HOLD OBLIGATIONS FOR DISTRICT EMPLOYEES INSERT YOUR NAME HERE Place logo or logotype here, Otherwise delete this text box. AGENDA.. Federal Rules of Civil Procedure What is a legal hold? What are
More information102 ediscovery Shakedown: Lowering your Risk. Kindred Healthcare
102 ediscovery Shakedown: Lowering your Risk Long-Term Care Session HCCA Compliance Institute April 27, 2009 Las Vegas, Nevada Presented by: Diane Kissel, Manager IS Risk & Compliance Kindred Healthcare,
More informationE-Discovery Basics For the RIM Professional. Learning Objectives 5/18/2015. What is Electronic Discovery?
E-Discovery Basics For the RIM Professional By: Andy Sokol, CEDS, CSDS Adding A New Service Offering For Your Legal & Corporate Clients Learning Objectives What is Electronic Discovery? How Does E-Discovery
More informationHIPAA IN A NUTSHELL: A Synopsis of How the HIPAA Privacy Rules Impact Ex Parte Communications. By Larry A. Golston, Jr.
HIPAA IN A NUTSHELL: A Synopsis of How the HIPAA Privacy Rules Impact Ex Parte Communications By Larry A. Golston, Jr. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C. 272 COMMERCE STREET POST OFFICE
More informationDigital Government Institute. Managing E-Discovery for Government: Integrating Teams and Technology
Digital Government Institute Managing E-Discovery for Government: Integrating Teams and Technology Larry Creech Program Manager Information Catalog Program Corporate Information Security Information Technology
More informationFederal Trade Commission Privacy Impact Assessment
Federal Trade Commission Privacy Impact Assessment for the: W120023 ONLINE FAX SERVICE December 2012 1 System Overview The Federal Trade Commission (FTC, Commission or the agency) is an independent federal
More informationPredictability in E-Discovery
Predictability in E-Discovery Presented by: John G. Roman, Jr. National Manager, Practice Group Technology Services Nixon Peabody LLP Tom Barce Assistant Director of Practice Support Fulbright & Jaworski
More informationEPA Classification No.: CIO 2155-P-3.0 CIO Approval Date: 04/04/2014 CIO Transmittal No.: 13-011 Review Date: 04/04/2017
EPA Classification No.: CIO 2155-P-3.0 CIO Approval Date: 04/04/2014 CIO Transmittal No.: 13-011 Review Date: 04/04/2017 Collection and Retention Procedures for Electronically Stored Information (ESI)
More informationLegal Developments in ediscovery: Implications for Security Management
Legal Developments in ediscovery: Implications for Security Management Richard S. Swart and Robert F. Erbacher Utah State University richard.swart@usu.edu Robert.Erbacher@usu.edu Abstract This paper defines
More informationThe E-Discovery Challenge Moves to the C-Suite
The E-Discovery Challenge Moves to the C-Suite New Legislation is Upping the Ante Even Further, Making It Crucial to Manage E-Discovery at the Enterprise Level Understanding E-Discovery Risk Whether information
More informationCase4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION
Case4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION STANDING ORDER FOR MAGISTRATE JUDGE KANDIS A. WESTMORE (Revised
More informationPART I ARTICLE. apply to all insurers domiciled in this State unless exempt. (b) The purposes of this article shall be to:
THE SENATE TWENTY-EIGHTH LEGISLATURE, 0 STATE OF HAWAII A BILL FOR AN ACT RELATING TO INSURANCE BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: PART I SECTION. Chapter, Hawaii Revised Statutes,
More informationRecords Retention & E-Discovery. Preserving Electronically Stored Information for Litigation
Records Retention & E-Discovery Preserving Electronically Stored Information for Litigation Introduction Increasingly, data is created, sent, received, and stored electronically. In fact, 89 billion business
More informationE-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK
E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK If your company is involved in civil litigation, the Federal Rules of Civil Procedure regarding preservation and production of electronic documents
More informationThe E-Discovery Process
POOLING PROVISIONS The E-Discovery Process A publication of Nevada Public Agency Insurance Pool The e- discovery process the search of electronic records for use as legal evidence can cost thousands of
More informationJAMS Dispute Resolution Rules for Surety Bond Disputes
JAMS Dispute Resolution Rules for Surety Bond Disputes Effective February 2015 JAMS DISPUTE RESOLUTION RULES FOR SURETY BOND DISPUTES JAMS provides arbitration and mediation services worldwide. We resolve
More informationRESPONDING TO SUBPOENAS AND REQUESTS FOR EXPERT WITNESS SERVICES. I. Purpose 1. II. Scope
SMITHSONIAN DIRECTIVE 113, July 24, 2012 RESPONDING TO SUBPOENAS AND REQUESTS FOR EXPERT WITNESS SERVICES I. Purpose 1 II. Scope 1 III. Roles and Responsibilities 3 IV. Policy 4 V. Definitions 5 5 I. Purpose
More informationFRONTIER REGIONAL/UNION#38 SCHOOL DISTRICTS. Records Retention Policy for Electronic Correspondence
EH I. Introduction FRONTIER REGIONAL/UNION#38 SCHOOL DISTRICTS Records Retention Policy for Electronic Correspondence All business conducted by government agencies are subject to the Public Records law
More information