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E-Discovery

E-Discovery. LIMITS ON E-DISCOVERY. No New Preservation Rule. When does duty to preserve attach? Reasonably anticipated litigation. Audio sanctions. Scope of Preservation. Time period Issue. Litigation Hold. Notice to key personnel IT consults Protocol for retrieving ESI

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E-Discovery

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  1. E-Discovery LIMITS ON E-DISCOVERY

  2. No New Preservation Rule • When does duty to preserve attach? • Reasonably anticipated litigation. • Audio sanctions

  3. Scope ofPreservation • Time period • Issue

  4. Litigation Hold • Notice to key personnel • IT consults • Protocol for retrieving ESI • Monitoring procedures to implement the hold

  5. Reasonably Accessible

  6. Undue Burden or Cost

  7. ESI IS KEY TOWINNING LITIGATION • ESI volume exceeds paper • CD has 325,000 pages (125 banker boxes) • 100,000 employees; so emails per day is 1.5 billion annually • META DATA track a documents existence • ESI can be costly to review

  8. Good Cause

  9. Access to E-Data • Test or Sample • Form Produced • Ordinarily Maintained • Reasonably Usable • Subpoena: Testing/Sample

  10. ESI Agenda or Businesses • Legal and IT must review and understand the ESI system and where data is stored. • Legal and IT must track the retention and destruction of data under the company’s policy. • Legal and IT must develop procedures for implementing a litigation hold. • Legal and IT must review backup tape storage cycles.

  11. ESI Agenda for Businesses(continued) • Implement systems to prevent inadvertent disclosure of attorney-client and work product materials. • Prepare a data/document map tracking the flow of data in, out and through the system

  12. Chart of Litigation

  13. Chart of Discovery

  14. New E-Discovery Rules

  15. Rule 26(f) Conference • Early discussion of ESI • Preservation • Form of production • Privilege and work product

  16. Rule 16 Scheduling Order

  17. Rule 34 Production of ESI • Sample of ESI • Form of production specified • Produce as ordinarily kept or reasonably usable

  18. Rule 45 Subpoenato Test or Sample ESI • Specify form produced

  19. Rule 37 Safe Harbor • No sanctions for routine good faith ESI system

  20. Rule 26(b) 45(d) • Protects against inadvertent waiver • Not reasonably accessible because of undue cost or burden

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