New Rules on Electronic Data Discovery

1. New Rules on Electronic Data Discovery Chicago Association of Law Libraries Brown Bag Session March 13, 2007

2. Agenda “The New Rules” Gretchen Van Dam U.S. Court of Appeals for the Seventh Circuit “The Impact of New Discovery Rules on Law Firms and Their Docket Departments” Karen Zydron Skadden Arps Slate Meagher & Flom

3. “The New Rules” Gretchen Van Dam U.S. Court of Appeals for the Seventh Circuit

4. The New Federal Rules on E-Discovery • Amendments to Federal Rules of Civil Procedure: • 16, 26, 33, 34, 37, 45 (and revisions to Form 35) • Aimed at discovery of Electronically Stored Information (ESI) • Went into effect on December 1, 2006

5. A Bit of History . . . • Advisory Committee began serious consideration of amending discovery rules in 2000 • Continuation of conversation begun in 1990’s • Issue not fully addressed in 2000 amendments to FRCP • Committee worked with bar associations, attorneys, computers specialists, and members of the public

6. A Bit of History . . . • Several conferences were held on proposed amendments • Proposed amendments circulated to the bench/bar for comments in August 2004 • 3 public hearings were held • 74 witnesses testified • 180 written comments were submitted

8. Key Case Law Prior to Amendments • Zubulake v. UBS Warburg, LLC. • Series of Zubulake decisions (I – VII) • Most commonly cited is Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004) where court imposed sanctions for deleting email • New rules in harmony with Zubulake • Coleman v. Morgan Stanley • 2005 WL 679071 (Florida circuit court)

9. The New Rules – Main Points • The Duty to “Meet and Confer” • Rule 16(b) and Rule 26(f) • Places premium on the early preservation of data • Rule 26(f) requires parties to “. . . develop a discovery plan” that addresses ESI and form in which it should be produced • Court must include this in its Rule 16(b) Scheduling Order

10. The New Rules – Main Points • Electronic Documents Containing Privileged Information • Rule 26(f) and Rule 26(b)(5) • Anticipation that privileged documents may be inadvertently disclosed • “Clawback” agreement in which parties agree that production does not constitute waiver of privilege if document promptly identified

11. The New Rules – Main Points • Cost-Shifting Mechanism for Electronic Data Information that is not “Reasonably Accessible” • Rule 26(b)(1)(2) • Acknowledges costs of producing EDI • Two-tiered structure for addressing problem

12. The New Rules – Main Points • How Should the Data be Produced? • Rule 34(b) • Party must produce data in format that is “reasonably usable” • Designed to prevent “data dumping”

13. The New Rules – Main Points • The “Safe Harbor” Provision • Rule 37 • Addresses duty to preserve data and potential for spoliation of evidence claims • Provides a safe harbor when electronic data is lost or unrecoverable due to party’s good faith reliance on regular business practices • Black’s: “Spoliation: The intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document”

14. New FRCP Amendments on ESI • Designed to address increasing costs of discovery of ESI • Harmonize disparate local court rules that had emerged to fill the gap between existing rules and practice • Emphasis on advance planning and careful management of discovery process

15. Materials and Web Sites in Presentation • Managing Discovery of Electronic Information: A Pocket Guide for Judges. Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins. Federal Judicial Center (2007). Available at FJC web site: www.fjc.uscourts.gov • U.S. Courts web site: Federal Rulemaking. Includes Rules, Judicial Committee actions and reports, Standing Committee actions and reports. www.uscourts.gov/rules/index.html • The Rule Making Process: A Summary for Bench and Bar. James C. Duff • www.uscourts.gov/rules/proceduresum.htm • Mock Pre-Trial “Meet and Confer” DVD, featuring Hon. Shira Scheindlin (S.D.N.Y.). “Managing Electronic Records” 2006 Conference. DVD produced by Cohasset Associates. Order information available at: http://www.merresource.com/dvd.htm

16. “The Impact of New Discovery Rules on Law Firms and Their Docket Departments” Karen Zydron Skadden Arps Slate Meagher & Flom

17. The Impact of New Discovery Rules onLaw Firms and Their Docket Department • TERMS OF ELECTRONIC DISCOVERY Electronically Stored Information (“ESI”) Electronic Data Discovery (“EDD”) • RULES AMENDED Federal Rules of Civil Procedure 16, 26, 33, 34, 37, 45 Form 35 Subpoena Form • SCOPE OF EDD Definition Types of Cases Affected Initial Disclosures Reasonably Accessible vs. Not Reasonably Accessible Remedy for Inadvertent Production (Privileged Information)

18. The Impact of New Discovery Rules onLaw Firms and Their Docket Department • EDD VENDORS The Boom Area of the Millennia • ISSUES FACING FIRMS/CLIENTS/COURTS Motion Practice Trends Discovery Phases Advising Clients Pre vs. Post Litigation Lawyer Knowledge of Client IT Systems Electronic Data Storage New Practice Area • LOCAL DISTRICT COURT RULES Federal Courts State Courts