WHOSE NEEDLE? WHOSE HAYSTACK?: COST ALLOCATION IN ELECTRONIC DISCOVERY. Stephen F. McKinney, Esq. Haynsworth Sinkler Boyd, P.A.

Save this PDF as:
 WORD  PNG  TXT  JPG

Size: px
Start display at page:

Download "WHOSE NEEDLE? WHOSE HAYSTACK?: COST ALLOCATION IN ELECTRONIC DISCOVERY. Stephen F. McKinney, Esq. Haynsworth Sinkler Boyd, P.A."

Transcription

1 WHOSE NEEDLE? WHOSE HAYSTACK?: COST ALLOCATION IN ELECTRONIC DISCOVERY Stephen F. McKinney, Esq. Haynsworth Sinkler Boyd, P.A. Introduction By now, most all of us have been on the receiving end of a request that a client produce each and every electronic record in its possession, however stored and in whatever format, related to or touching in any way upon the [product, transaction, incident ] at issue in this litigation. Ahead lies the daunting prospect of time, money, manpower and general business disruption associated with responding to a broad request for electronic information. Fortunately, some trial and even appellate courts have developed a framework in which Rule 26 and other similar procedural rules can be made relevant and effective in redressing the inequities that can be associated with overbroad hunting for frequently less than meaningful needles. This paper addresses those judicial efforts specifically associated with equitably shifting the cost of production. The Digital Explosion Digital information is no longer a marginal curiosity or extravagance for our clients it is now their life s blood. traffic has surpassed telephone and postal communications in volume many times over, with American businesses generating 3.5 billion messages per day. A small company of 10 employees will create 250,000 pages (125 boxes) of annually. A University of California study concluded that 93% of all information generated/created annually in the United States is originally produced in digital form.

2 Unfortunately, as digital information has made businesses more efficient and cheaper to operate, the primary corporate management tool for such information has become redundancy: duplicate, duplicate, duplicate. This problem is compounded by the fact that the primary disaster recovery tool for most application software (e.g. Microsoft Word) is also redundancy. As a result, the document production challenge for litigators has increased dramatically as increasing amounts of information are stored exclusively in digital media, in various formats and various locations. In order to assert effective, appropriate objections and manage discovery costs, litigators need to be prepared to urge upon the courts before which they practice strategies to allocate the cost burden of electronic production based upon a fair evaluation of the production requests made. Electronic Discovery and Rule 26: Old Dog, New Tricks Electronic data is subject to the same disclosure rules as paper records. Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002) (citations omitted), see also Fed. R. Civ. P. 34. It is presumed that the responding party will bear the expense or burden of complying with a discovery request, but the responding party may request an order under Rule 26(c) conditioning discovery on the requesting party s partial or full payment of the costs of discovery. Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 358 (1978). Cost-shifting from the responding party to the requesting party should be considered only when the burden or expense of electronic discovery outweighs the likely benefit. Fed. R. Civ. P. 26(b)(2)(iii). By focusing on the Rule 26(b)(2) balancing factors a court should be able to reach a fair result when determining the scope of discovery of electronic records. Thompson v. HUD, 219 F.R.D. 93, 98, (D.Md. 2003). A court is required, sua sponte, or upon receipt of a Rule 26(c) motion, to evaluate the costs and benefits related to a potentially burdensome discovery request. Id. -2-

3 When considering electronic discovery a court should consider the factors laid out in Rule 26(b)(2). The factors to be considered are: (1) whether the discovery sought is unreasonably cumulative or duplicative; (2) whether the information sought is obtainable from some other more convenient, less burdensome or inexpensive source; (3) whether the party seeking the information already has had adequate opportunity to obtain the information; and (4) whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2). In determining if a burden outweighs the benefit a court is to take into consideration the needs of the case, the amount in controversy, the resources of the parties, the importance of the issues at stake in the litigation, and of the discovery sought to the resolution of the issues. Id. The Marginal Utility Approach The court in McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001), borrowed the economic principle of marginal utility to help determine which party should bear the cost of producing electronic data. Id. at 34. The court stated that the more likely it is that the medium contains information that is relevant to the suit, the fairer it is that the responding party bear the expense. Id. The less likely it is, the more unjust it would be to make the responding party bear the expense. Id. The difference is at the margin. Id. Using the marginal utility approach, courts may order the responding party to produce a sample, and document the time and money spent performing the sample run. Id. at The company, after completing the sample, then files a sworn statement of the expenses incurred and the results achieved. Id. at 35. Courts then often permit the parties to argue why the results and the expenses do or do not justify a further search. Id. The Marginal Utility Approach has been subsumed by both Rowe, 205 F.R.D. 421, and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 320 (S.D.N.Y. May 13, 2003) ( Zubulake I ). -3-

4 The Rowe Test In Rowe Entm't, Inc. v. William Morris Agency, Inc., Magistrate James C. Francis devised a new formula to determine if, and when, costs should be shifted to the requesting party. 205 F.R.D The Rowe test considers eight factors: (1) the specificity of the discovery request; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party. Id. at 429. The eight factors are equally relevant, and none is given greater weight than the other. Id. at 429. The court went on to explain some of the factors in greater detail and apply the factors to the facts of the case. The court found that for the first factor the more specific the requesting party s discovery demands, the less appropriate it is to shift the cost of production. Rowe, 205 F.R.D. at 429. For factor three the court stated that prior production of discovery in one form does not preclude a request for discovery in another form, however, it is justifiable to shift the cost of producing the discovery in the different form to the requesting party. Id. at 430. When the court examined the purposes for which the responding party maintained the data, the court decided that data that is stored and accessible in everyday, ordinary use does not warrant cost shifting; however, data with no current business use back-up tapes or data deleted but not yet completely destroyed may warrant cost shifting. Id. at 431. The court reasoned that when the responding party benefits from the information produced there is less support for shifting costs. Id. Benefits to the responding party may come as a collateral benefit to the responding party s business computer programs or hardware or it may help the responding party in the litigation itself. Id. When -4-

5 considering the costs of production, the court examined cases in which sums as low as $1,680 have warranted cost shifting, even an expense of $16,000 has met the threshold for a defendant with assets exceeding one-half billion dollars. Id. Finally, the court found that where discovery will be incremental, it is more appropriate to place the cost burden on the party that will ultimately decide how expansive the discovery will be. Id. at 432. Since being handed down, the Rowe test has been the gold standard for deciding costshifting of electronic discovery. Zubulake I, 217 F.R.D. at 320. However, not all courts have used the Rowe test because it has been perceived as too easily permitting cost-shifting to the requesting party. Thompson, 219 F.R.D. at 98. In published decisions, federal district courts in New York, Louisiana, Tennessee, Illinois, and Minnesota have used the Rowe test in considering cost-shifting of electronic discovery. Zubulake I and III In 2003, in the same New York District Court, Magistrate Shira A. Scheindlin reconsidered the cost-shifting factors in two opinions in the Zubulake v. UBS Warburg LLC 1 cases. As an initial question the court found it must determine if cost-shifting should be considered at all? Following Rule 26(c), the court found that cost-shifting is appropriate only when the discovery request is unduly burdensome or cost prohibitive; this determination turns on if the data is kept in an accessible or inaccessible form. Zubulake I, 217 F.R.D. at 318. A court must have a thorough understanding of the responding party's computer system. Id. at 324. For data kept in an accessible format, the usual rules of discovery apply and cost-shifting is not appropriate. Id. The court should 1 Of concern in this presentation are Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. May 13, 2003) ( Zubulake I ) and its follow up case Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003) ( Zubulake III ). Zubulake II (Zubulake v. UBS Warburg LLC, 2003 U.S Dist. LEXIS 7940 (S.D.N.Y. May 13, 2003)) dealt with Zubulake s request to report the contents of a confidential deposition to the SEC, NASD, and the NYSE. Zubulake IV (Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. October 22, 2003)) dealt with Zubulake s request for sanctions against USB for its failure to preserve missing backup tapes and for deleting s. -5-

6 consider cost-shifting only when inaccessible data is requested. Id. The expense of producing or time required to produce the data may be a significant factor in determining what is considered accessible and inaccessible. See OpenTV v. Liberate Techs., 219 F.R.D. 474, 477 (N.D.Cal. 2003) (following the Zubulake test). The Zubulake court laid out three types of accessible electronic data data that does not need to be manipulated to be used: active, online data such as hard drives, near-line data such as optical disks, and offline storage/archives such as floppy disks, often referred to as JBOD ("Just a Bunch Of Disks"). Zubulake I, 217 F.R.D. at The court determined that there are often two types of inaccessible electronic data data that must be restored or retrieved out of the ordinary course of business at an expense to the producing party: backup tapes, and erased, fragmented or damaged data. Id. at 319. The disadvantage of backup tapes is that to read any particular block of data, you need to read all the preceding blocks. Id. As a result, the data on a backup tape are not organized for retrieval of individual data. Id. factors are: The Zubulake court revised the Rowe test into seven factors for a court to consider, the (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) The importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. Zubulake I, 217 F.R.D. at 322. The first 6 factors correspond to the three explicit considerations of Rule 26(b)(2)(iii). Id. at 323. The Zubulake court declared that the seven factors should not be just added up but that they should be weighed in descending order of importance. Zubulake I, 217 F.R.D. at 323. The first two -6-

7 factors together constitute the marginal utility test and indicate how useful the discovery will be to deciding the issues in the case. Id. These two factors are weighed the most heavily. Id. The second group of factors (factors 3, 4, and 5) to be weighed address the cost issues: How expensive will this production be? and Who can handle that expense? Id. Factor number 6 stands alone as the third group, and will rarely come into play. Id. Factor number 7 is the least important because it is fair to presume that the response to a discovery request generally benefits the requesting party. Id. Once a court has determined that cost-shifting is appropriate, there is a failure to fully delineate the weight of each factor in determining the extent to which costs should be shifted. [P]recise allocation is a matter of judgment and fairness rather than a mathematical consequence of the seven factors.... Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 289 (S.D.N.Y. July 24, 2003) ( Zubulake III ). Finally, the court followed the McPeek court s lead in finding that the court needs a factual basis to determine if cost-shifting is warranted. Zubulake I, 217 F.R.D. at 323. Courts will need the responding party to restore and produce responsive documents from a small sample of backup tapes so that the court will have the information needed to perform the cost-shifting analysis. Id. at 324. The responding party should keep complete and accurate records of the costs associated with producing the sample records. Id. (quoting McPeek, 202 F.R.D. at 34-35). In published decisions, federal district courts in New York and California have used the Zubulake test in considering cost-shifting of electronic discovery. Practice Tips 1. Initially, request only forms of accessible data, for which cost-shifting is inappropriate. Use the data obtained from the initial request to help demonstrate the relevance and importance of obtaining inaccessible data. -7-

8 2. The better the requesting party can show that the electronic data contains relevant information, the less likely that a court will shift the cost of production. 3. Privileged documents pose a problem for responding parties seeking cost-shifting. Cost-shifting is generally appropriate only for the cost of restoration and searching, however, the responding party should always bear the cost of reviewing and producing the data once is has been converted into an accessible form. Zubulake III, 216 F.R.D. at 290. a. Cost-shifting is appropriate for restoration only due to the fact that the producing party can control the cost of reviewing the documents and that once the data is restored to accessible format cost-shifting is no longer appropriate. Id. b. Devices to differentiate privileged documents from discoverable documents may become important cost-savers in the future, so long as, the devices are effective and are followed. 4. Once data has been restored to accessible format cost-shifting, it is inappropriate to request costshifting. Request the protective order prior to production. 5. Responding party tips: a. Argue lack of relevance and that the data is available in hard copy. b. Always request a sampling first to help show lack of relevance and extreme cost. c. Under the Zubulake test, if any of the factors show cost-shifting argue some percentage of the cost should be shifted. The court in Zubulake found that only one factor favoring cost shifting (Factor 7) was enough to shift 25% of the cost of production to the requesting party. Zubulake III, 216 F.R.D. at 289. In a case in which factors 1, 2, 3, and 5 weighed against cost-shifting, factors 4 and 7 weighed in favor, and factor 6 was -8-

9 neutral, the court ruled that the two parties were to split the cost evenly. OpenTV, 219 F.R.D. at State amendments to their Civil Procedure Rules. Both Texas (Tex. R. Civ. P ) and Mississippi (Miss. R. Civ. P. 26(b)(5)) have amended their rules to guide parties and the courts in considering cost-shifting of electronic discovery. a. A requesting party must specifically request production of electronic or magnetic information and specify the form in which they want it produced. Tex. R. Civ. P b. The responding party must produce the requested information that is reasonably available in the ordinary course of business and that is responsive to the request. Id. c. If, through reasonable efforts, the responding party cannot retrieve the information requested or produce it in the form requested, the responding party must file an objection with the court. Id. d. 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. Id. (emphasis added) e. Mississippi s rule is identical except that it is left to the court s discretion on whether to shift the costs of electronic discovery. See Miss. R. Civ. P. 26(b)(5). Conclusion The challenge for litigation counsel in protecting their clients from abusive and/or simply unfair requests for electronic discovery is to convince the courts before which they practice that existing discovery rules, rigorously applied, are robust enough to create an equitable field of battle for discovery. -9-

10 -10-

DISCOVERY 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 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 information

E-Discovery: Who Bears The Costs? (Part I)

E-Discovery: Who Bears The Costs? (Part I) E-Discovery: Who Bears The Costs? (Part I) By: KRISTIN B. PETTEY, ESQ. With the growth in the use of electronic media for communication and data storage, there has been a concomitant growth in the need

More information

E-Discovery: Who Bears The Costs? (Part II)

E-Discovery: Who Bears The Costs? (Part II) E-Discovery: Who Bears The Costs? (Part II) By: In the first part of this article, E-Discovery: Who bears the costs? (Part I), the five types of data storage identified by Judge Sceindlin in Zubulake v.

More information

PROPOSED 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 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 information

The Unsignaled Intersection at 26 & 45: How to Safely Guide Third Parties Across the E-Discovery Superhighway

The Unsignaled Intersection at 26 & 45: How to Safely Guide Third Parties Across the E-Discovery Superhighway 75 DEF. COUNS. J. 228 (2008) The Unsignaled Intersection at 26 & 45: How to Safely Guide Third Parties Across the E-Discovery Superhighway Stephen F. McKinney Elizabeth H. Black HAYNSWORTH SINKLER BOYD,

More information

Zubulake: The Catalyst for Change in ediscovery

Zubulake: The Catalyst for Change in ediscovery Abstract Zubulake: The Catalyst for Change in ediscovery Penny Herickhoff Minnesota State University Vicki M. Luoma Minnesota State University Common law countries have been struggling with electronic

More information

UNDERSTANDING 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. 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 information

Amendments to Federal Rules of Civil Procedure. electronically stored information. 6 Differences from Paper Documents

Amendments 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 information

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROSCOE FRANKLIN CIVIL ACTION NO. 02-3359 v. GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY O Neill, J. November 9, 2004 MEMORANDUM

More information

Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Case 6:13-cv-01168-EFM-TJJ Document 157 Filed 06/26/15 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CARGILL MEAT SOLUTIONS CORPORATION, v. Plaintiff, PREMIUM BEEF FEEDERS,

More information

Electronic 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 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 information

E-DISCOVERY: BURDENSOME, EXPENSIVE, AND FRAUGHT WITH RISK

E-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 information

Electronic Discovery: Lessons from Zubulake

Electronic Discovery: Lessons from Zubulake Electronic Discovery: Lessons from Zubulake Bruce J. Douglas Daniel J. Ballintine Presented November 29, 2006 to Larkin Hoffman Daly & Lindgren Ltd. 1 Introduction What is a Zubulake, anyway, and how do

More information

A Brief Overview of ediscovery in California

A 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 information

Cyber Tech & E-Commerce

Cyber Tech & E-Commerce MEALEY S LITIGATION REPORT Cyber Tech & E-Commerce The Duty To Preserve Data Stored Temporarily In Ram: Is The Sky Really Falling? by J. Alexander Lawrence Morrison & Foerster New York, New York A commentary

More information

Assembly Bill No. 5 CHAPTER 5

Assembly 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 information

E-Discovery: New to California 1

E-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 information

COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Fall 2014

COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Fall 2014 COURSE DESCRIPTION AND SYLLABUS LITIGATING IN THE DIGITAL AGE: ELECTRONIC CASE MANAGEMENT (994-001) Professors:Mark Austrian Christopher Racich Fall 2014 Introduction The ubiquitous use of computers, the

More information

1 of 2 DOCUMENTS. Vasquez v. California School of Culinary Arts, Inc. No. B250600

1 of 2 DOCUMENTS. Vasquez v. California School of Culinary Arts, Inc. No. B250600 Page 1 1 of 2 DOCUMENTS Vasquez v. California School of Culinary Arts, Inc. No. B250600 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO 230 Cal. App. 4th 35; 2014 Cal. App. LEXIS

More information

Richmond Journal of Law & Technology Volume XIII, Issue 3. Benjamin D. Silbert*

Richmond Journal of Law & Technology Volume XIII, Issue 3. Benjamin D. Silbert* THE 2006 AMENDMENTS TO THE RULES OF CIVIL PROCEDURE: ACCESSIBLE AND INACCESSIBLE ELECTRONIC INFORMATION STORAGE DEVICES, WHY PARTIES SHOULD STORE ELECTRONIC INFORMATION IN ACCESSIBLE FORMATS Benjamin D.

More information

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013

Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. Xact Data Discovery. ediscovery for DUMMIES LAWYERS. MDLA TTS August 23, 2013 MDLA TTS August 23, 2013 ediscovery for DUMMIES LAWYERS Kate Burke Mortensen, Esq. kburke@xactdatadiscovery.com Scott Polus, Director of Forensic Services spolus@xactdatadiscovery.com 1 Where Do I Start??

More information

Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments

Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments Electronic Discovery - What s All The Talk About? November 2004 1313 North Market

More information

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE

SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE SAMPLING: MAKING ELECTRONIC DISCOVERY MORE COST EFFECTIVE Milton Luoma Metropolitan State University 700 East Seventh Street St. Paul, Minnesota 55337 651 793-1246 (fax) 651 793-1481 Milt.Luoma@metrostate.edu

More information

Handling Costly E-Discovery Demands in Smaller Cases

Handling Costly E-Discovery Demands in Smaller Cases Chapter 9 Handling Costly E-Discovery Demands in Smaller Cases Neal Walters Neal Walters is of counsel with the firm of Ballard Spahr Andrews & Ingersoll, LLP in its Voorhees, New Jersey office. Mr. Walters

More information

A 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 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 information

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO Filed 8/27/14 Vasquez v. Cal. School of Culinary Arts CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions

More information

Legal Arguments & Response Strategies for E-Discovery

Legal 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 information

REALITY BYTES: A NEW ERA OF ELECTRONIC DISCOVERY

REALITY 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 information

4/23/2014. E-Discovery. What is ESI? Discovery. Electronically Stored Information. The downside. Discovery generally. E-Discovery

4/23/2014. E-Discovery. What is ESI? Discovery. Electronically Stored Information. The downside. Discovery generally. E-Discovery E-Discovery Emily Keimig Lori Philips 303.299.8240 404.567.4377 ekeimig@shermanhoward.com lphillips@shermanhoward.com What is ESI? Electronically Stored Information The downside Discovery Discovery generally

More information

Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age

Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age Any and all documents Meets Electronically Stored Information: Discovery in the Electronic Age Panel Members Judge Ronald L. Buch, Moderator Panelists The Honorable Paul W. Grimm U.S. District Court for

More information

Electronic Discovery: Litigation Holds, Data Preservation and Production

Electronic Discovery: Litigation Holds, Data Preservation and Production Electronic Discovery: Litigation Holds, Data Preservation and Production April 27, 2010 Daniel Munsch, Assistant General Counsel John Lerchey, Coordinator for Incident Response 0 E-Discovery Rules Federal

More information

2004 E-Discovery Developments: Year in Review

2004 E-Discovery Developments: Year in Review 2004 E-Discovery Developments: Year in Review Sean Foley, Esq., Legal Consultant Michele C.S. Lange, Esq., Staff Attorney, Legal Technologies January 20, 2005 Presenters Sean Foley, Esq., Legal Consultant

More information

2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE BOSTON E-DISCOVERY SUMMIT 2013 DECEMBER 3, 2013

2013 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 information

Elements of a Good Document Retention Policy. Discovery Services WHITE PAPER

Elements of a Good Document Retention Policy. Discovery Services WHITE PAPER Elements of a Good Document Retention Policy Discovery Services WHITE PAPER Document retention especially the retention of electronic data has become a hot topic in the legal industry. In the wake of several

More information

E- DISCOVERY RULES FEDERAL COURT 2007

E- DISCOVERY RULES FEDERAL COURT 2007 E- DISCOVERY RULES FEDERAL COURT 2007 TABLE OF CONTENTS I. INTRODUCTION...1 II. THE GENESIS AND NEED FOR THOSE AMENDMENTS...1 III. A Case Study Zubulake...3 Facts of Zubulake...4 Discovery of Records on

More information

Best Practices in Electronic Record Retention

Best Practices in Electronic Record Retention A. Principles For Document Management Policies Arthur Anderson, LLD v. U.S., 544 U.S. 696 (2005) ( Document retention policies, which are created in part to keep certain information from getting into the

More information

Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES

Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES Book Review THE ELECTRONIC EVIDENCE AND DISCOVERY HANDBOOK: FORMS, CHECKLISTS, AND GUIDELINES by Sharon D. Nelson, Bruce A. Olson and John W. Simek American Bar Association 2006 745 pp. Reviewed by William

More information

SHIFTING BURDENS AND CONCEALING ELECTRONIC EVIDENCE: DISCOVERY IN THE DIGITAL ERA

SHIFTING BURDENS AND CONCEALING ELECTRONIC EVIDENCE: DISCOVERY IN THE DIGITAL ERA SHIFTING BURDENS AND CONCEALING ELECTRONIC EVIDENCE: DISCOVERY IN THE DIGITAL ERA Rebecca Rockwood* *University of Richmond, T.C. Williams School of Law, J.D. candidate 2007. Cite as: Rebecca Rockwood,

More information

AN E-DISCOVERY MODEL ORDER

AN E-DISCOVERY MODEL ORDER AN E-DISCOVERY MODEL ORDER INTRODUCTION Since becoming a staple of American civil litigation, e-discovery has been the subject of extensive review, study, and commentary. See The Sedona Principles: Best

More information

FEDERAL PRACTICE. In some jurisdictions, understanding the December 1, 2006 Amendments to the Federal Rules of Civil Procedure is only the first step.

FEDERAL 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 information

EIGHT-MINUTE ELECTRONIC DISCOVERY

EIGHT-MINUTE ELECTRONIC DISCOVERY EIGHT-MINUTE ELECTRONIC DISCOVERY Adam T. Klein, Esq. Tarik F. Ajami, Esq. Douglas C. James, Esq. Rachel Wilhelm Outten & Golden LLP 3 Park Avenue 29 th Floor New York, New York 10016 Technophobes, relax:

More information

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS DIVISION. v. Case No. [MODEL] ORDER REGARDING E-DISCOVERY IN PATENT CASES

IN 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 information

Outlaw v. Willow Oral Argument Motions for Sanctions

Outlaw v. Willow Oral Argument Motions for Sanctions William Mitchell E-Discovery Symposium Outlaw v. Willow Oral Argument Motions for Sanctions Mary T. Novacheck, Esq. Partner Bowman and Brooke LLP Outlaw's Motion: Cost Shift Vendor Fees to Willow Prior

More information

AUTION! Electronic. The courtroom falls silent. Pinning you with her gaze, the judge inquires, Do you have any questions,

AUTION! Electronic. The courtroom falls silent. Pinning you with her gaze, the judge inquires, Do you have any questions, AUTION! Electronic Picture yourself in the courtroom waiting for the judge. You sit at counsel table next to your client and your partner. The gavels raps, and the judge assumes the bench. She is visibly

More information

New Amendments to Rule 26 Dictate Use of Electronic Discovery Technology by Larry Johnson, Esq. Director, Electronic Discovery Services

New Amendments to Rule 26 Dictate Use of Electronic Discovery Technology by Larry Johnson, Esq. Director, Electronic Discovery Services New Amendments to Rule 26 Dictate Use of Electronic Discovery Technology by Larry Johnson, Esq. Director, Electronic Discovery Services Fios Copyright 2000, by Fios, Inc Under the Rules Enabling Act, 28

More information

ADDRESSING THE COSTS AND COMITY CONCERNS OF INTERNATIONAL E-DISCOVERY

ADDRESSING THE COSTS AND COMITY CONCERNS OF INTERNATIONAL E-DISCOVERY ADDRESSING THE COSTS AND COMITY CONCERNS OF INTERNATIONAL E-DISCOVERY John T. Yip Abstract: The volume of electronically stored information (ESI) is expanding rapidly. Under the Federal Rules of Civil

More information

Backup Tapes in. Preservation, Disclosure and. Grant J. Esposito 1

Backup Tapes in. Preservation, Disclosure and. Grant J. Esposito 1 Backup Tapes in Civil Litigation: Preservation, Disclosure and Production Grant J. Esposito 1 In the rapidly evolving and highly complex field of electronic discovery, backup tapes have become an 800-lb.

More information

THE IMPACT OF THE ELECTRONIC DISCOVERY RULES ON THE EEOC PROCESS

THE 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 information

ANALYSIS OF ORIGINAL BILL

ANALYSIS 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 information

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION CANDICE MILLER COOK, Plaintiff, vs. No. 04-2139-Ml V DAVID E. CAYWOOD and DARRELL D. BLANTON Defendants. ORDER

More information

Discovery. Metadata and E-Discovery A THOMSON WEST REPORT. Reprinted From E-Discovery: A Thomson West Report

Discovery. Metadata and E-Discovery A THOMSON WEST REPORT. Reprinted From E-Discovery: A Thomson West Report Discovery A THOMSON WEST REPORT COMMENTARY Reprinted From E-Discovery: A Thomson West Report Metadata and E-Discovery By Ralph C. Losey, Esq. What is metadata? Literally it means data about data. Many

More information

Backup Tape E-Discovery

Backup Tape E-Discovery Shedding Light on New strategies for backing up data and the 2006 amendments to the U.S. Federal Rules of Civil Procedure have led to costly e-discovery nightmares for organizations. A few simple steps

More information

Presented By: Attorney/Legal Technologist Cosgrave Vergeer Kester LLP. Paine Hamblen LLP 805 SW Broadway, 8 th Floor

Presented By: Attorney/Legal Technologist Cosgrave Vergeer Kester LLP. Paine Hamblen LLP 805 SW Broadway, 8 th Floor Everything You Wanted to Know About ESI and E-Discovery but Were Afraid to Ask Jason M. Pistacchio Presented By: Gregory S. Johnson Attorney Attorney/Legal Technologist Cosgrave Vergeer Kester LLP Paine

More information

ELECTRONIC DISCOVERY. Dawn M. Curry

ELECTRONIC 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 information

On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively UBS ) to restore and

On May 13, 2003, I ordered defendants UBS Warburg LLC, UBS Warburg, and UBS AG (collectively UBS ) to restore and UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X : LAURA ZUBULAKE, : : Plaintiff, : OPINION AND ORDER : -against- : 02 Civ. 1243 (SAS) : UBS WARBURG LLC,

More information

E-Discovery Guidance for Federal Government Professionals Summer 2014

E-Discovery Guidance for Federal Government Professionals Summer 2014 E-Discovery Guidance for Federal Government Professionals Summer 2014 Allison Stanton Director, E-Discovery, FOIA, & Records Civil Division, Department of Justice Adam Bain Senior Trial Counsel Civil Division,

More information

IN 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. 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 information

THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION.

THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. NOTE ANOTHER STEP IN THE EVOLUTION OF E-DISCOVERY: AMENDMENTS OF THE FEDERAL RULES OF CIVIL PROCEDURE YET AGAIN? Julia M. Ong * I. INTRODUCTION... II. E-DISCOVERY UNDER THE 2006 RULES... A. ESI in the

More information

INTERNET 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 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 information

Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act

Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act Written and Edited by 1 : Contributions by: Ervin Adler, William R. Burdett, & Thomas J. Routt. Disclaimer: The views expressed in

More information

GUIDELINES 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 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 information

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver. (a) Scope of waiver. In federal proceedings, the waiver by

Rule 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 information

Managing Discovery of Electronic Information: A Pocket Guide for Judges

Managing Discovery of Electronic Information: A Pocket Guide for Judges Managing Discovery of Electronic Information: A Pocket Guide for Judges Second Edition Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins Federal Judicial Center 2012 This Federal Judicial

More information

Plaintiff has developed SAS System software that enables users to access, manage,

Plaintiff has developed SAS System software that enables users to access, manage, SAS Institute Inc. v. World Programming Limited Doc. 170 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION 5:10-CV-25-FL SAS INSTITUTE INC., Plaintiff, v.

More information

The Seventh Circuit Electronic Discovery Pilot Program Hope for the Future

The Seventh Circuit Electronic Discovery Pilot Program Hope for the Future Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 20, Number 2 (20.2.16) Feature Article By:Steven M. Puiszis Hinshaw & Culbertson, LLC

More information

California Enacts New E-Discovery Rules that Mirror Federal Court E-Discovery Rules - with One Exception

California 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 information

e-docs and Forensics in the New e-discovery Era

e-docs and Forensics in the New e-discovery Era ELECTRONICALLY STORED INFORMATION e-docs and Forensics in the New e-discovery Era www.aplf.org FRAMEWORK Overview of the Rule Changes Pre-Litigation Planning IT Audit Document Retention Policies Planning

More information

Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9

Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9 Case 5:14-cv-00093-RS-GRJ Document 21 Filed 05/28/14 Page 1 of 9 MARY SOWELL et al., Plaintiffs, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION Page 1 of

More information

Rule 26. General Provisions Governing Discovery.

Rule 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 information

CIVIL DISCOVERY STANDARDS* AUGUST 1999 [NOVEMBER 2003 DRAFT AMENDMENTS TO ELECTRONIC DISCOVERY STANDARDS]

CIVIL 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 information

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE 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 information

Electronic Discovery

Electronic 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 information

Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations

Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations Commonsense Electronic Discovery Planning: How to Help Your Client Meet Its Electronic Production Obligations By Elleanor H. Chin and Scott E. Warnick Reprinted with permission from The Oregon State Bar

More information

FINANCIAL INDUSTRY REGULATORY AUTHORITY OFFICE OF HEARING OFFICERS. Respondent.

FINANCIAL INDUSTRY REGULATORY AUTHORITY OFFICE OF HEARING OFFICERS. Respondent. FINANCIAL INDUSTRY REGULATORY AUTHORITY OFFICE OF HEARING OFFICERS DEPARTMENT OF ENFORCEMENT, v. RESPONDENT, Complainant, Respondent. Disciplinary Proceeding No. 2011026874301 Hearing Officer Andrew H.

More information

Electronic Discovery: Background and Best Practices by David M. Shub, Esq.

Electronic Discovery: Background and Best Practices by David M. Shub, Esq. Electronic Discovery: Background and Best Practices by David M. Shub, Esq. Note: A version of this white paper was originally published in the conference materials for the Atlanta Bar Association s March

More information

PROCEDURAL PROVISIONS IN NEVADA MEDICAL MALPRACTICE REFORM. Carl Tobias*

PROCEDURAL PROVISIONS IN NEVADA MEDICAL MALPRACTICE REFORM. Carl Tobias* PROCEDURAL PROVISIONS IN NEVADA MEDICAL MALPRACTICE REFORM Carl Tobias* In late July 2002, a special session of the Nevada Legislature passed medical malpractice reform legislation. 1 The expressly-stated

More information

Sean Byrne Head of ediscovery Solutions Michael Lappin Director of Archiving Technology

Sean Byrne Head of ediscovery Solutions Michael Lappin Director of Archiving Technology Sean Byrne Head of ediscovery Solutions Michael Lappin Director of Archiving Technology ediscovery for Legacy Archives Today s Panel Michael Lappin Director of Archiving Technology Nuix Therese Craparo

More information

Campbell Law Review. Volume 32 Symposium 2010 Number 3. Reasonableness in E-Discovery

Campbell Law Review. Volume 32 Symposium 2010 Number 3. Reasonableness in E-Discovery Campbell Law Review Volume 32 Symposium 2010 Number 3 Reasonableness in E-Discovery DEBRA LYN BASSETT* Issues of reasonableness arise regularly throughout American law. Reasonableness is a concept central

More information

Electronic Discovery in Civil Litigation. Stanley D. Ference III Ference & Associates www.ferencelaw.com

Electronic Discovery in Civil Litigation. Stanley D. Ference III Ference & Associates www.ferencelaw.com Electronic Discovery in Civil Litigation Stanley D. Ference III Ference & Associates www.ferencelaw.com Topics to be Covered Types of Electronic Information Significant Differences Between Traditional

More information

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Case 1:07-cv-01707-HHK-JMF Document 66 Filed 04/17/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v.

More information

Hong Kong High Court Procedure E-Discovery: Practice Direction Effective September 1, 2014

Hong 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 information

Supreme Court Rule 201. General Discovery Provisions. (a) Discovery Methods.

Supreme 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 information

grouped into five different subject areas relating to: 1) planning for discovery and initial disclosures; 2)

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 information

Rule 30(b)(6) Depositions in Electronic Discovery. Discovering What There Is to Discover

Rule 30(b)(6) Depositions in Electronic Discovery. Discovering What There Is to Discover : Discovering What There Is to Discover One of the challenges in electronic discovery is identifying the various sources of electronically stored information (ESI) that could potentially be relevant to

More information

Archiving and The Federal Rules of Civil Procedure: Understanding the Issues

Archiving 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 information

Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation

Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation Colorado s Civil Access Pilot Project and the Changing Landscape of Business Litigation On January 1, 2012, new rules approved by the Colorado Supreme Court entitled the Civil Access Pilot Project ( CAPP

More information

Predictability in E-Discovery

Predictability 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 information

Friday 31st October, 2008.

Friday 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 information

ACADEMIC AFFAIRS COUNCIL ******************************************************************************

ACADEMIC AFFAIRS COUNCIL ****************************************************************************** ACADEMIC AFFAIRS COUNCIL AGENDA ITEM: 8.D DATE: March 15, 2007 ****************************************************************************** SUBJECT: Electronic Records Discovery Electronic records management

More information

PLAINTIFFS OBJECTION TO THE REASONABLENESS AND NECESSITY OF THE FEES REQUESTED BY DEFENDANT

PLAINTIFFS OBJECTION TO THE REASONABLENESS AND NECESSITY OF THE FEES REQUESTED BY DEFENDANT DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street Denver, Colorado 80202 Plaintiffs: Ananda Marga, Inc., a Colorado Nonprofit Corporation; et al.; Defendants: Acharya Vimalananda

More information

Managing Discovery of Electronic Information: A Pocket Guide for Judges

Managing Discovery of Electronic Information: A Pocket Guide for Judges Managing Discovery of Electronic Information: A Pocket Guide for Judges Second Edition Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins Federal Judicial Center 2012 This Federal Judicial

More information

E-Discovery Best Practices

E-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 information

Case 5:13-cv-00982-OLG Document 108 Filed 08/10/15 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

Case 5:13-cv-00982-OLG Document 108 Filed 08/10/15 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Case 5:13-cv-00982-OLG Document 108 Filed 08/10/15 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and

More information

Arkfeld on Electronic Discovery and Evidence: The Spotlight on Legal Holds

Arkfeld on Electronic Discovery and Evidence: The Spotlight on Legal Holds BOOK RELEASE FOR IMMEDIATE RELEASE Media Contact: Michael Arkfeld Law Partner Publishing, LLC Ph: 602.993.1937 May, 3, 2010 Email: service@lawpartnerpublishing.com Arkfeld on Electronic Discovery and Evidence:

More information

Article originally appeared in the Fall 2011 issue of The Professional Engineer

Article originally appeared in the Fall 2011 issue of The Professional Engineer Article originally appeared in the Fall 2011 issue of The Professional Engineer Electronic Discovery in Litigation By Douglas P. Jeremiah, P.E., Esq. Your firm is involved in litigation and you get the

More information

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel In-House Panel Sponsored by: THE GIBBONS INSTITUTE OF LAW, SCIENCE & TECHNOLOGY Seton Hall University School

More information

From Archiving to Legal Holds: Comprehensive Information Management

From Archiving to Legal Holds: Comprehensive Information Management April 21 st, 2010 From Archiving to Legal Holds: Comprehensive Information Management John Jablonski, Esq., Partner, Goldberg Segalla, LLP Wayne Wong, Managing Consultant, Kroll Ontrack 2010 Kroll Ontrack

More information

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY

BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY BEST PRACTICES FOR PREPARING YOUR BUSINESS FOR E-DISCOVERY I. Background The Federal Rules of Civil Procedure provide for document production in the discovery process. Until recently, all types of documents

More information

E-DISCOVERY IN THE US

E-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 information