2006 Amendments to Federal Rules of Civil Procedure

1. 2006 Amendments to the Federal Rules of Civil Procedure Will Change How You Address Electronically Stored Information Bay Area Intellectual Property Inn of Court September 20, 2006

2. Introduction • Class Title: 2006 Amendments to the Federal Rules of Civil Procedure Will Change How You Address Electronically Stored Information • Instructor: Michael Rhoden, Esq. Director of Product Development Whitmont Legal Technologies, Inc. (650) 963 - 1911 mrhoden@whitmont.com (c) 2005 Whitmont Legal Technologies, Inc.

3. MCLE Curriculum INTRO_EDD - Intro to Electronic Data – What Electronic Data Means To Your Practice ALS 101 – Trends and Directions for Automated Litigation Support EDD 101 – Introduction to and Solutions for eDiscovery EDD 201 – E-Discovery Planning, Workflow and Specifications EDD 202 – E-Discovery Collection & Forensic Processing EDD 203 – E-Discovery Review & Production Solutions FRCP_101 - 2006 Amendments to the Federal Rules of Civil Procedure (c) 2005 Whitmont Legal Technologies, Inc.

4. Agenda • Background and Timing of Amended Rules Implementation • Amended Rules • Wrap Up and Questions (c) 2005 Whitmont Legal Technologies, Inc.

5. Background and Timing of Amended Rules Implementation • Advisory Committee 2000 • Draft rules and comment meetings • Final report sent to Supreme Court September 2005 • Supreme Court – reviewed and forwarded • Congressional deadline December 2006 • Absent congressional action, amended rules effective December 1, 2006 • www.uscourts.gov – Federal Rulemaking link (c) 2005 Whitmont Legal Technologies, Inc.

6. Amendments • Early Attention to ESI Issues – 26(a), 26(f), Form 35 • Discovery of ESI Not Reasonably Accessible – 26(b)(2) • Asserting Claims of Privilege and Protection After Production – 26(b)(5)(b) • Back to Early Attention to ESI Issues - 16 • Interrogatories and Requests for Production Involving ESI – 33, 34(a), 34(b) • Sanctions for Loss of ESI (Document Retention Policies) – 37(f) • Subpoenas - 45 (c) 2005 Whitmont Legal Technologies, Inc.

7. Early Attention to ESI Issues • Rule 26 (a) – “Meet & Confer” • Rule 26 (f) – Specifics of Meet & Confer • Form 35 – Form to report on Meet & Confer • Rule 16 – Scheduling Conference – At this point, all your ducks should be in a row. (c) 2005 Whitmont Legal Technologies, Inc.

8. Early Attention to ESI Issues – Rule 26 • 26(a)(1)(b) specifically includes ESI (broader) – no longer “data compilations” • 26(f) Meet & Confer to address: • Litigation Hold - Any issues relating to preserving discoverable information – 26(f) • Form of Production - Issues relating to disclosure or discovery of ESI, including the form or forms in which it should be produced – 26(f)(3) • Clawback & Quick Peek Agreements - Issues relating to claims of privilege or protection as trial-preparation material, including . . . to include their agreement in an order – 26(f)(4) (c) 2005 Whitmont Legal Technologies, Inc.

9. Litigation Hold • A litigation hold, also known as a "preservation order" or "hold order," is a process used by companies to advise their employees of pending or anticipated litigation and of their obligation to preserve relevant records and to suspend their normal records-destruction policies as they relate to potentially relevant records • Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243(SAS), 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (“Zubulake V”) • Spells out parties and counsels obligations regarding implementing and managing/maintaining a litigation hold (c) 2005 Whitmont Legal Technologies, Inc.

10. Early Attention to ESI Issues – Form 35 • Report to the Court regarding Rule 26 Meet & Confer revised to include: • Disclosure of potentially discoverable ESI and Issues • Litigation Hold, Form or Form(s), Clawback & Quick Peek Agreements • Other issues too…but this summarizes the amendments • Form 35 has been modified to incorporate amendments to Rules 16 and 26 (c) 2005 Whitmont Legal Technologies, Inc.

11. Early Attention to ESI Issues – Practice Pointers • Know what may be contained in client and target electronic data stores – plan to discuss early on • Know your Judge or Magistrate and how they handle ESI • Be proactive regarding ESI and offer suggestions rather that letting other party or the Court dictate terms • Know the requirements of the new Rules • Consider Zubulake V when assessing each party’s litigation hold policy (c) 2005 Whitmont Legal Technologies, Inc.

12. Discovery of ESI Not Reasonably Accessible • Rule 26(b)(2) – Two-tier Approach • Tier 1: Low Hanging Fruit – accessible material • Tier 2: Identify inaccessible material • Burden of claiming inaccessibility is upon claiming party • Challenging claim of inaccessibility is incumbent upon requesting party (c) 2005 Whitmont Legal Technologies, Inc.

13. Discovery of ESI Not Reasonably Accessible – Rule 26(b)(2) • A party need not provide discovery of ESI from sources identified as not reasonably accessible because of undue burden or cost • If challenged, the Party from whom discovery is sought must show that the information is not reasonably accessible • Court may nonetheless order discovery from such sources (c) 2005 Whitmont Legal Technologies, Inc.

14. Discovery of ESI Not Reasonably Accessible – Practice Pointers • Common law, statutory and regulatory duties to preserve data are not obviated by inaccessibility. • Case law will need to develop and interpret this provision, i.e. this will be litigated • Judicial discretion is likely to result in expanded use of sampling, neutral experts to evaluate “accessibility” and increased incidence of cost shifting per Zubulake I (c) 2005 Whitmont Legal Technologies, Inc.

15. Discovery of ESI Not Reasonably Accessible – Zubulake Accessibility Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) [“Zubulake I”] - Whether inaccessible electronic data is discoverable and, if so, how the cost should be borne1. Active, on-line data 2. Near-line data 3. Offline Storage 4. Backup Tapes 5. Erased and Damaged DataGeneral Rule - Responding Party pays costs to produce accessible data, cost shifting MAY apply to inaccessible data (c) 2005 Whitmont Legal Technologies, Inc.

16. Discovery of ESI Not Reasonably Accessible – Zubulake Cost Shifting Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)Whether inaccessible electronic data is discoverable and, if so, how the cost should be borne • Extent to which request is specifically tailored to discover relevant information; • Availability of such information from other sources; • Total cost of production, compared to amount in controversy; • Total cost of production, compared to each party’s available resources; • Relative ability and incentive of each party to control costs; • Importance of issues at stake in the litigation; • Relative benefit to the parties of obtaining the information. (c) 2005 Whitmont Legal Technologies, Inc.

17. Asserting Claims of Privilege and Work Product Protection After Production • Rule 26(b)(5)(b) – Default Clawback Procedures Absent Prior Agreement (c) 2005 Whitmont Legal Technologies, Inc.

18. Asserting Claims of Privilege and Protection After Production – Rule 26(b)(5)(b) • If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify the party that received the information of the claim and the basis • Receiving party must return, sequester or destroy all copies and not disclose the information until the claim is resolved • Receiving party can promptly present information to Court for determination • If receiving party previously disclosed, must take reasonable steps to retrieve (c) 2005 Whitmont Legal Technologies, Inc.

19. Asserting Claims of Privilege and Protection After Production – Rule 26(b)(5)(b) (c) 2005 Whitmont Legal Technologies, Inc.

20. Asserting Claims of Privilege and Protection After Production – Rule 26(b)(5)(b) • Does not address whether privilege claim is waived by production and extent to which privilege has been waived • Procedural Rules – Federal • Substantive Rules – State (c) 2005 Whitmont Legal Technologies, Inc.

21. Asserting Claims of Privilege and Protection After Production – Federal Evidence Rule 502 • Proposed Federal Rule of Evidence 502 would codify waiver of privilege and work product protection by disclosure, and includes exceptions to such waiver. • An exception for inadvertent disclosure addresses the concern that the cost of privilege review has become prohibitive in cases involving electronic discovery. The rule also codifies the controlling effect of • (1) court orders regarding the preservation or waiver of privilege or work product protection and • (2) party agreements regarding the effect of disclosure • FRCP 16 and 26 discussions • Court orders are made applicable to non-parties, and party agreements are binding on the parties to the agreement but not on other parties unless the agreement is incorporated into a court order. (c) 2005 Whitmont Legal Technologies, Inc.

22. Asserting Claims of Privilege and Protection After Production – Rule 26(b)(5)(b) – Practice Pointers • Producing Party should NOT rely solely on this provision to save a claim of privilege or protection • Review all ESI thoroughly before production • May be a trap for the unwary • Regardless of the court’s interpretation, producing party still faces problem of putting the genie back into the bottle (c) 2005 Whitmont Legal Technologies, Inc.

23. Early Attention to ESI Issues Rule 16 • Within 90 days of appearance of defendant or within 120 days of service of defendant, the Scheduling Conference occurs. • Prior to Scheduling Conference, the following has occurred and been reported on to the court via Form 35: • Parties disclosed pursuant to 26(a) their respective ESI • Parties met and conferred pursuant to 26(f) • Discussed and agreed to preservation procedures (Litigation Holds if deemed necessary) • Discussed and potentially agreed on the form(s) of production • Discussed and agreed upon Clawback and/or Quick Peek Agreements • In addition, the parties discussed how they will sample, if at all, inaccessible data • Scheduling Order Issued by Judge pursuant to 16 that includes the above. (c) 2005 Whitmont Legal Technologies, Inc.

24. Interrogatories and Requests for Production Involving ESI • Rule 33 – Interrogatories • Rule 34(a) – Requests for Production • Rule 34(b) – Requests for Production (c) 2005 Whitmont Legal Technologies, Inc.

25. Interrogatories Involving ESI – Rule 33 • Allows production of ESI in response to interrogatory • IF “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served” • Note: Responding party may be required to provide some combination of technical support, information on application software, or other assistance • Party producing ESI in response to interrogatory may be required to provide direct access to its ESI system (c) 2005 Whitmont Legal Technologies, Inc.

26. Interrogatories Involving ESI – Rule 33 Practice Pointers • Be very careful responding to an interrogatory by directing requesting party to ESI – may subject your system to scrutiny, sampling and testing • Responding by direction to ESI may allow privileged or protected material to be produced (c) 2005 Whitmont Legal Technologies, Inc.

27. Requests for Production Involving ESI – Rule 34(a) • ESI is a separate category of information • Text of the rule allows a party to “test or sample” including ESI, and also including access to producing party’s network, subject to reasonableness • Allows discovery of ESI stored in any medium (c) 2005 Whitmont Legal Technologies, Inc.

28. Requests for Production Involving ESI – Rule 34(b) • Request may specify form or forms in which ESI is to be produced • Responding party may object to the requested form of production or if no form of production stated, responding party MUST state form or forms it intends to use • If request does not specify form(s) of production, responding party must produce ESI as ordinarily maintained or in reasonably usable form(s) • Request need not specifically request documents and ESI, they are read together in request • Party need not produce same ESI in more than one form (c) 2005 Whitmont Legal Technologies, Inc.

29. Requests for Production Involving ESI – Rule 34(b) – Practice Pointer • Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005) • Court held that when a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. (c) 2005 Whitmont Legal Technologies, Inc.

30. Requests for Production Involving ESI – Rule 34(b) – Practice Pointer • Nova Measuring Instruments Ltd., v. Nanometrics, Inc., 417 F.Supp.2d 1121 (N.D.Cal. March 6, 2006) • Defendant “must produce the documents in their native file format, with original metadata.” • Defendant ordered to produce documents identified to correspond to each aspect or element of each accused instrumentality (c) 2005 Whitmont Legal Technologies, Inc.

31. Sanctions for Loss of ESI • Rule 37(f) – Document Retention Issues (document destruction policies) (c) 2005 Whitmont Legal Technologies, Inc.

32. Sanctions for Loss of ESI – Rule 37(f) • Absent exceptional circumstances, a court may not impose sanctions for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system • Provides limited protection against sanctions • Reasonableness of “routine” information system operating in “good faith” – must have both components • Consider and incorporate vendors that are managing documents for producing party (c) 2005 Whitmont Legal Technologies, Inc.

33. Sanctions for Loss of ESI – Rule 37(f) – Practice Pointers • Survey of Sanctions imposed for discovery abuse related to electronic data indicate that the profile of a typical sanctioned party is a defendant that destroys electronic information in violation of a court order, in a manner that is willful or in bad faith, or causes prejudice to the opposing party. – See Morgan Stanley • In our sample, we did not discover a single case where a court sanctioned a party solely for following its document retention and recycling policy; there was always another consideration. Whether documents had been deleted or destroyed was not dispositive of whether courts were likely to impose e-discovery sanctions. Courts tended to focus on the prejudice to the party seeking discovery, as well as on the spoliator’s culpable state of mind. (c) 2005 Whitmont Legal Technologies, Inc.

34. Subpoenas • Rule 45 (c) 2005 Whitmont Legal Technologies, Inc.

35. Subpoena – Rule 45 • Amended to track Rule 34 • Allows subpoena of ESI • Request may specify form or forms in which ESI is to be produced • If request does not specify form(s) of production, responding party must produce ESI as ordinarily maintained or in reasonably usable form(s) • Party need not produce same ESI in more than one form absent court order for good cause • Allows testing or sampling, including ESI, including access to producing parties network, subject to reasonableness and need (c) 2005 Whitmont Legal Technologies, Inc.

36. Subpoena – Rule 45, objections • Amended to track Rule 34 • Requesting party “shall take reasonable steps to avoid undue burden or expense to responding party” so be cognizant of this possible objection • Responding party may object to the requested form(s) of production • Not required to produce ESI from sources not reasonably accessible • Provisions for assertion of privilege and protections as trial-preparation materials after production (“Clawback”) • Receiving party can promptly present information to Court for determination • If receiving party previously disclosed, must take reasonable steps to retrieve (c) 2005 Whitmont Legal Technologies, Inc.

37. Wrap Up • Background and Timing of Amended Rules Implementation • Amended Rules • Forms • Questions (c) 2005 Whitmont Legal Technologies, Inc.

38. Closing • Class Title: 2006 Amendments to the Federal Rules of Civil Procedure Will Change How You Address Electronically Stored Information • Instructor: Michael Rhoden, Esq. Director of Product Development Whitmont Legal Technologies, Inc. (650) 963 - 1911 mrhoden@whitmont.com (c) 2005 Whitmont Legal Technologies, Inc.