Amendments to the Federal Rules Electronic Discovery

1. Amendments to the Federal RulesElectronic Discovery Dino Tsibouris dino@tsibouris.com (614) 228-9707 www.tsibouris.com

2. The Times They Are A’Changin • December 1 • Pretrial planning required • “Electronically Stored Information” • Format selection

3. The Times They Are A’Changin • Litigation “holds” • Safe Harbor • Failure to comply results in sanctions • State courts will follow

4. IT IS A RECORDS MANAGEMENT ISSUE • IT Terminology now part of discovery process • Where is it stored? • How is it transmitted? • What format is used?

5. Amendments to the Federal Rules of Civil Procedure “[I]t is black letter law that computerized data is discoverable if relevant.” - Anti-Monopoly, Inc. v. Hasbro, Inc., No 94 Civ. 2120 (S.D.N.Y. Nov. 3, 1995)

6. Rule 34 Electronically Stored Information Any party may serve on ... [an]other party a request (1) to produce ... inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary ... into reasonably usable form ...

7. Rule 34 Electronically Stored Information • Amended Rule 34(a) • “Documents” includes ESI unless clearly distinguished from “documents" • Requesting party may specify form of production • Network access

8. Rule 34 Electronically Stored Information • Amended Rule 34(b) • Native File Production provision • Requesting party may specify the form of ESI production • Form more important for ESI • Preserve searchability

9. Rule 26 Conference to Plan Discovery Except [when] exempted ... parties must, ... confer to ... make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning: ... (3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

10. Rule 26 Conference to Plan Discovery • Amended Rule 26(f) • Early attention to discovery of ESI • Describe ESI to be sought • Preservation of relevant data • Form of ESI disclosure • Privilege or protection

11. Rule 26 Conference to Plan Discovery • Cost shifting • Must only preserve relevant data • No duty to preserve all paper, emails, backup tapes

12. Rule 26 Conference to Plan Discovery • Controls direction, duration and cost • Agreement regarding non-waiver before any disclosures occur • Resolve electronic discovery up front

13. Rule 26 Conference to Plan Discovery • Collect electronic communication, records management, retention and legal holds policies • Understand the importance of ESI in the case (or lack of it) • Prepare to explain to the court your policy: how it is used and enforced - and gaps

14. Rule 26 Conference to Plan Discovery • Prepare to describe what is a “record” in your organization (and why other data is not) • Know where relevant information may be kept • Know IT staff who can locate where relevant information is kept • Can you help determine what is reasonably accessible and what is not?

15. Rule 16Scheduling Order Pretrial Conference: The court may include in the scheduling order: • provisions for disclosure or discovery of electronically stored information; • any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production;

16. Rule 16Scheduling Order • Amended Rule 16(b) • Underscoring importance of Rule 26 Conference, Court’s scheduling order must now include • Provisions for disclosure or discovery of ESI • Any agreements parties reach for asserting claims of privilege or protection

17. Form 35 • Report of Parties Planning Meeting • Inadvertent production and privilege must be addressed in Form 35

18. Rule 26 Initial Disclosures [A] party must, without awaiting a discovery request, provide to other parties ... a copy ... or a description by category and location of, all documents, electronically stored information, and tangible things ... in ... [their] possession, custody, or control ... that ... [they] ... may use to support ... [their] claims or defenses, unless solely for impeachment

19. Rule 26 Initial Disclosures • Amended Rule 26(a)(1)(B) • Each party must disclose before discovery begins a copy or description (by category and location) of all documents, ESI, and things in the other party's possession, custody or control that it may use to support its claims or defenses.

20. Rule 26 Production Issues and Accessibility • Amended Rule 26(b)(2)(B) • No need to provide ESI if there is an undue burden or cost • Party seeking discovery may move to compel • Party claiming undue burden or cost has burden of proof

21. Rule 26 Production Issues and Accessibility • Reasonably accessible ESI that is relevant must be produced • Do not need to produce ESI from sources that are inaccessible • Rule does NOT address duty to preserve relevant information on those sources during litigation

22. Rule 26 Production Issues and Accessibility • RM application: • Help your attorney locate and track confidential or privileged records • Be a primary contact to help manage production • RM = rules, IT = tools • Create procedures in advance, where practical – and update them

23. Rule 26 Burden of Proof • Explanations such as "inactive" or "backup" unlikely to suffice • Court can compel party to produce even if they meet burden of proof when there is good cause • Creates a “balancing test”

24. Rule 26 Balancing Test Considerations • Specificity of the request • Quantity of information available from other, more easily accessed sources • Failure to produce relevant information that was likely to have existed but is no longer available on more easily accessed sources

25. Rule 26 Balancing Test Considerations • Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources • Predictions as to the importance and usefulness of the additional information

26. Rule 26 Balancing Test Considerations • Importance of the issues at stake in the litigation • The parties’ resources

27. ZUBULAKE (OLD) Extent request is tailored to discover relevant information Availability of information from other sources Total cost of production vs. amount in controversy Cost of production compared to resources of each party Relative ability to control costs and incentive to do so Importance of issues at stake Relative benefits to parties obtaining information Rule 26 (NEW) Quantity of information available from other, more easily accessed sources (Z2) Failure to produce relevant information that was likely to have existed but is no longer available on more easily accessed sources Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources (Z2) Predictions as to the importance and usefulness of the additional information (Z7) Importance of the issues at stake (Z6) The parties’ resources (Z4) Rule 26 Balancing Test Considerations

28. Rule 26 Balancing Test Considerations Rule 26(b)(2)(C) permits a court to alter the balance by setting limits on the permitted scope of discovery or shifting some of the production costs to the requesting party

29. Rule 26 Privileged and Trial-Preparation Info • ESI includes metadata • Shows the history and context of the information • Links to other information • May reveal privileged or confidential information

30. Rule 26 Privileged and Trial-Preparation Info • 26(b)(5)(B) Inadvertent production of privileged material • Producing party must notify requesting party of privilege claim within reasonable time • Motion to determine privilege claim must be filed under seal

31. Rule 26 Privileged and Trial-Preparation Info • If information is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it

32. Rule 26 Privileged and Trial-Preparation Info • After being notified, a party must promptly return, sequester, or destroy the specified information and any copies ... and may not use or disclose ... until the claim is resolved

33. Rule 26 Privileged and Trial-Preparation Info • Receiving party may promptly present ... to the court ... for a determination ... • If the receiving party disclosed before being notified, it must take reasonable steps to retrieve it • The producing party must preserve the information until the claim is resolved

34. Rule 26 Privileged and Trial-Preparation Info • Rule does not resolve waiver question • Court will determine if waiver has occurred • Rule creates a "litigation hold" to stop the spread of an initial disclosure

35. Rule 26 Privileged and Trial-Preparation Info • Litigation Hold • Requires a party that has received allegedly privileged information, upon receipt of a notice of a claim of privilege, to "promptly return, sequester, or destroy the specified information and any copies it has."

36. Rule 26 Privileged and Trial-Preparation Info • Litigation hold (cont’d) • Receiving party "may not use or disclose the information until the claim is resolved" • Receiving party must "take reasonable steps to retrieve" any information it distributed

37. Rule 33Production as Answer Where ... interrogatory [answer] may be derived ... from ... business records, including electronically stored information ... or from an examination ... of ... business records, ... and the burden ... is substantially the same ... [for both parties] it is ... sufficient ... to specify the records ... and to afford ... reasonable opportunity to examine ... and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to ... locate and to identify, ... records

38. Rule 33Production as Answer • Amended former Rule 33(d) • Extends right to produce business records in response to an interrogatory if the burden of deriving the answer will be substantially the same for both parties to include ESI

39. Rule 33Production as Answer • Rule 33 obligates you to provide "sufficient detail” to locate and identify records • Provide technical support or direct access to your ESI; and • Provide a "reasonable opportunity to examine, audit or inspect" the records identified

40. Rule 45Subpoena Practice Recaps changes to other discovery rules • Amended Rule 45(a)(1)(C) - ESI is now a category of information that may be sought by subpoena • Amended Rule 45(a)(1) – can request testing or sampling

41. Rule 45Subpoena Practice • Amended Rule 45(a)(1) - subpoena may specify form or forms to produce ESI • Amended Rule 45(d)(1)(B) - ESI default form is "a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable"

42. Rule 45Subpoena Practice

43. Rule 45Subpoena Practice • Amended Rule 45(d)(1)(C) - the same ESI need only be produced in one form • Amended Rule 45(d)(1)(D) - ESI from sources identified as not reasonably accessible because of undue burden or cost need not be produced

44. Rule 45Subpoena Practice • Amended Rule 45(d)(1)(D) - burden to show undue burden or cost is on the party from whom discovery is sought; even if burden is met, court may order discovery when requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C); court may specify conditions upon which such discovery shall proceed

45. Rule 45Subpoena Practice • Amended Rule 45(d)(2)(B) - a claim of privilege or protection as trial-preparation material may be made after production of discovery material by notice to the receiving party

46. Rule 45Subpoena Practice • Amended Rule 45(d)(2)(B) - receiving party must promptly return, sequester, or destroy specified information and any copies and may not use or disclose the information until the claim is resolved; if the information has been disclosed before receiving notice, must take reasonable steps to retrieve the information

47. Rule 45Subpoena Practice • Amended Rule 45(d)(2)(B) - receiving party may promptly present the privilege or trial-preparation protection issue for determination • Amended Rule 45(d)(2)(B) - the person who produced the information must preserve it until the claim is resolved

48. Rule 37Safe Harbor 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.

49. Rule 37Safe Harbor • Added Rule 37(f) • Term "routine operation" refers to the way systems are "generally designed, programmed, and implemented to meet ... technical and business needs" • Must exercise “good faith”

50. Rule 37Protection is Narrow • Procedures must be established, documented and followed • Incentive for destruction? • Coordinate with other regulations • Safe harbor only applies to sanctions "under these rules"