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 Committee Notes The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery www.thesedonaconference.org electronically stored information = information stored in any medium from which information can be obtained translated, if necessary, by the respondent into reasonably usable form -- Rule 34, F.R.C.P. 6 Differences from Paper Documents Volume and Duplicability Persistence Dynamic, Changeable Content Metadata Environment-Dependence Obsolescence Dispersion and Searchability The Sedona Principles at 4-6 (July 2005) 1
Planning & Scheduling Conference Requesting party specifies form? Form in which ordinarily maintained? Other reasonably useable form? Not a license to make use more difficult Translation & tech support Planning & Scheduling Conference Must discuss preservation Need to preserve evidence for lawsuit Need to continue routine business operations critical to ongoing activities Planning & Scheduling Conference Must discuss preservation Must discuss privilege work product 2
New Local Form 26(f) rev. 12/2006 reasonably accessible electronic information must be produced also i.d. sources with potentially responsive info not searching nor producing 3
inaccessible info need not be produced Information is not reasonably accessible if Undue burden or cost Identified as such by responder Need not be produced disaster recovery backups deleted, fragmented and overwritten data but, still discoverable for good cause Requestor s Burden Need for discovery outweighs costs, burdens & disruption Respondent s Burden Information not reasonably accessible because of undue burden or cost 7 Considerations Specificity of the request Other more accessible information Failure to produce other information Likelihood of finding relevant information Importance of the information Importance of the issues in litigation Parties resources Requesting party s willingness to share/bear costs 4
New Rule 37(f) 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. Duty of good faith Can t exploit routine operations to avoid discovery Litigation hold ubulake v UBS Warburg Zubulake v UBS Warburg 229 F.R.D. 422, 431-433 (S.D.N.Y. 2004) Once party reasonably anticipates litigation: must suspend its routine document retention / destruction policy must put litigation hold in place & retain info Lawyers can t just rely on a litigation hold Counsel must oversee compliance make certain all sources of potentially relevant information are identified and placed on hold become fully familiar with client s document retention policies and data retention architecture communicate with key players to understand how they stored information Zubulake v UBS Warburg steps that counsel should take : must issue litigation hold when litigation is reasonably anticipated should periodically re-issue litigation hold for new employees keep fresh in minds of all employees should communicate the hold directly to key players i.e. people identified in Rule 26 disclosures should instruct employees to produce electronic copies of their active files separate and preserve relevant backup tapes Rule 45. Subpoena Can subpoena electronic information Affirmative duty on issuing attorney to avoid imposing undue burden or expense Court shall enforce this duty Form in which information should be produced Issuer specifies If not, in form ordinarily maintained or reasonably usable Accessible v. Inaccessible Conclusions electronic info on same footing as paper discoverable in electronic format counsel & IT should consult on discovery plan if counsel don t agree on e-format requesting party can designate responding party can choose two tier discovery/motion practice accessible vs inaccessible responding party: not reasonably accessible requesting party: need outweighs costs & burden counsel should oversee the litigation hold 5