In a post this week on Information Week’s Information Management blog, Andrew Conry-Murray provides a case study of why legal departments should work closely with technology professionals from the moment the business or organization is implicated in a lawsuit – even if the entity isn’t even a party to the suit. http://www.informationweek.com/blog/main/archives/2009/01/the_6_million_m.html.

 

The Office of Federal Housing Enterprise Oversight (OFHEO) was subpoenaed to provide documents in Fannie Mae/Freddie Mac litigation. An OFHEO lawyer agreed to the plaintiffs’ search terms for eDiscovery of backup tapes. The plaintiffs submitted 400 search terms, which yielded 660,000 documents, 80 percent of the agency’s total e-mails. The OFHEO had to hire 50 lawyers to review the documents – many of which were entirely irrelevant – and in the process missed court-ordered deadlines to produce evidence. The court eventually held the agency in contempt, which it appealed and lost. All this cost the agency an unbudgeted $6 million, 9 percent of its annual operating budget.

 

This eDiscovery could have been avoided had the agency consulted IT professionals at the outset to help define the search terms.  

What is your eDiscovery headache? Let us know and we’ll come up with a solution.

Duane Morris litigator Eric J. Sinrod elaborates about why opposing counsel should be more collaborative in his article “E-Discovery: Can’t We All Just Get Along?” http://www.mondaq.com/article.asp?articleid=72826. He cites the ruling of U.S. Judge Paul W. Grimm in Mancia v. Mayflower Textile Services Co., an analysis of Federal Rule of Civil Procedure 26(g) which requires the attorney record to sign every discovery disclosure, request, response or objection.

 

That signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. But, asks Judge Grimm, is every counsel engaging in “reasonable inquiry” before making or responding to discovery requests? He concludes that the answer was “no.”

“Too often,” writes Sinrod, “attorneys, in shoot-from-the-hip fashion, propound broad discovery requests and respond with boilerplate objections to discovery requests. Indeed, Judge Grimm was dealing with just that scenario in the Mancia case, which is what prompted his cooperation tutorial.”And according to Judge Grimm, “The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive to the point of pricing litigants out of court.”His solution can also be found in FRCP 26(g). Judges are authorized to impose sanctions for discovery violations, even when not requested to do so by counsel. However, he says, this recourse is one of the least-abided discovery rules. Do you agree with Judge Grimm? Will imposing sanctions force adversaries to be more cooperative with eDiscovery requests and perhaps lower the cost of eDiscovery? Would you request sanctions the next time opposing counsel obstructs your eDiscovery?

Rule 16(b)

This rule requires the scheduling order to address and disclose all discovery of electronically stored information (ESI).

Rule 26(b)

This rule obligates both parties to have a “Meet and Confer” conference to discuss all eDiscovery issues prior to commenc¬ing discovery.

Rule 26(b)(2)(B)

This rule requires the responding party to produce all accessible, relevant, non-privileged and responsive ESI. The responding party may potentially avoid production of inaccessible ESI unless production is mandated by the court.

Rule 26(b)(5)

This rule creates a process for asserting claims of privilege and work product protection following an inadvertent production of ESI. The mechanisms used are the Claw Back, Open Peek and Quick Peek arguments.

Rule 34 (b)

This rule institutes a procedure for both parties to identify the format of ESI to be processed by providing a default ESI production form in the event it is not agreed upon during the 26(b) conference. The default form revolves around ESI that “in which it is ordinarily maintained [or] reasonably usable.”

Rule 37(f)

This rule creates a “Safe Harbor” by providing that absent extraordinary circumstances, a court may not impose sanctions on either party for not providing ESI lost due to a routine, good-faith operation of an electronic information system.

When comparing the recently amended FRCP with California’s proposed electronically stored evidence (“ESI”) amendment two differences come to mind.

The first distinction has to do with defining what constitutes ESI. The FRCP avoids providing a precise definition of what constitutes electronically stored information. Rather, the FRCP focuses on information "stored in any medium" that can be "retrieved and examined." As a result, the Federal rules avoid any specific definition that later could be outdated as technology advances. On the other hand, the proposed California amendments take a different approach. They actually do refer to electronically stored information as having "electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."

The second distinction relates to what amount of ESI may be obtained. Under the new FRCP a party can only obtain discovery of ESI that is "reasonably accessible." While there is no clear definition of reasonable legislative history/committee notes suggest that it includes any information that is routinely accessed and not data that has been destroyed, deleted, is legacy or data that would require significant cost, effort or burden to produce. As the exception a party can access ESI that is not "reasonably accessible" if there is good cause. Good cause tests typically weigh need versus burden. On the other hand, the proposed California ESI amendments are geared towards having everything discoverable, whether readily accessible or not. Instead of statutorily restricting what can be sought California seeks the usage of court protective orders and motions to keep the playing field in check.