ESI and FCRP
Randall Consulting started an electronic discovery training blog to help educate those in this industry who have not received the proper training or whose skill with electronic discovery is minimal. With the economy still trying to regroup itself many companies cannot afford training. This blog hopefully will help bridge the gap until they can. The goal here is to provide two updates a week.
The first topic was on the electronic discovery training issue and discussed why this type of blog was needed in this industry.
http://randallconsulting.typepad.com/randall001/2009/06/the-electronic-discovery-training-issue.html
The next topic set up all future blog entries. It was on the EDRM model. The best way to give structured information was to do it around EDRM.
http://randallconsulting.typepad.com/randall001/2009/06/topic-1-the-edrm-model.html
Topic #2 which is the first step in the EDRM model discussed information management. It is imperative for those in litigation support law firms and companies to not only know the EDRM model but to be able to discuss areas within each step. For project managers and those in sales at service providers need to know much more than their present skill set.
http://randallconsulting.typepad.com/randall001/2009/06/topic-2-information-management-.html
Topic #3 went into great detail about ECM systems and in particular SharePoint.
http://randallconsulting.typepad.com/randall001/2009/07/ecm-and-the-sharepoint-riddle.html
The last blog entry was on ESI. I have decided to write a series of entries containing areas of ESI. The first such entry was on where is the ESI and what type of sources are there.
http://randallconsulting.typepad.com/randall001/2009/07/topic-4-rumblings-on-esi-part-i.html
This next entry is on ESI and FCRP. It focuses on two areas the meet and confer conference from 26(f) as well as having a broader understanding of inaccessible data. Also, note we are still in the first phase of the EDRM model which is information management and understanding the areas within.
ESI Rules 16 and 26(f)
We know that electronic over paper can substantially reduce copying and storage costs; enable a requesting party to more easily review, organize, and manage information. Attorneys need to address ESI in the earliest stages of litigation. All too often, attorneys view their obligation to “meet and confer” under Federal Rule of Civil Procedure 26(f) as a quick jog around the block. When ESI is involved, judges should always insist that a meaningful meet and confer conference take place.
Amended Rule 26(f) also directs parties to discuss issues related to claims of privilege or protection as trial-preparation material. If the parties agree on a procedure to assert such claims after production, they should discuss whether to ask the court to include their agreement in an order.
Attorneys are expected to understand their client's information infrastructure in order to negotiate what material will be disclosed, how it will be produced and in what timeframe. If the party has concerns about preservation, costs or burden, this is the time that these arguments need to be raised. For the conference to be effective, attorneys must be familiar with how their clients use computers on a daily basis and understand what information is available, how routine computer operations may change it, and what is entailed in producing it. Attorneys need to identify the persons who are most knowledgeable about the client’s computer system and meet with them well in advance of the Rule 26 conference; it may also be advisable to have those persons present at the conference.
During the [26(f)] conference, the parties should confer regarding some of the following matters:
ESI in general. Attorneys should attempt to agree on what steps the parties will take to segregate and preserve in order to avoid accusations of spoliation.
E-mail information. Attorneys should attempt to agree on the scope of e-mail discovery and search protocol. Where is all the e-mail located at?
Deleted information. Attorneys should attempt to agree on whether responsive deleted information still exists and the extent to which computer forensics is needed.
Back-up and archival data. Attorneys should attempt to agree on whether responsive back-up and archival data exists, the extent to which back-up and archival data is needed, and who will bear the cost of obtaining such data.
Format and media. Attorneys should attempt to agree on the format and media to be used in the production of ESI.
Reasonably accessible information and costs. Attorneys should attempt to determine if any responsive ESI is not reasonably accessible. Is there ESI that is only accessible by incurring undue burdens or costs
Privileged or trial preparation materials. Attorneys should attempt to reach an agreement regarding what will happen in the event privileged or trial preparation materials are inadvertently disclosed. If the disclosing party inadvertently produces privileged or trial preparation materials, it must notify the requesting party of such disclosure. After the requesting party is notified, it must return, sequester, or destroy all information and copies and may not use or disclose this information until the claim of privilege or protection as trial preparation materials is resolved.
The parties may agree to provide a quick peek, where the responding party provides certain requested materials for initial viewing without waiving any privilege or protection.
The parties may also establish a claw-back agreement, whereby materials that are disclosed w/o intent to waive privilege or protection are not waived and are returned to the responding party, so long as the responding party identifies the materials mistakenly produced.
The amendments also include a good faith and reasonableness "safe harbor" provision that may protect companies in the event potentially relevant evidence is not preserved due to unintentional conduct. This provision will depend on the company's history of compliance as well as its ability to substantiate its retention policies.
Training, assessments and creating a litigation response plan are the first steps counsel should take to avoid costly mistakes.
Amended Rule 16(b) provides that scheduling orders may include provisions for disclosure or discovery of ESI and any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production.
Effective December 1, 2006, the term “data compilations” was changed to “electronically stored information,” clarifying a party’s duty to include ESI in its disclosures.
ESI Under Rules 26(b)(1) and 26(b)(2)
The central issue in almost all discovery management is the determination of scope. Under Rule 26(b)(1), parties may obtain discovery relevant to the “claim or defense of any party. That is not privileged or protected as trial preparation material. In addition, the court may order discovery of information relevant to the “subject matter involved in the action” for “good cause.”
FRCP 26(b)(2)(B) This amendment allows a producing party to not produce ESI which is "not reasonably accessible because of undue burden or cost" without good cause. This rule depends upon the producing party notifying both the court and the requesting party of the ESI which it deems to not be reasonably accessible. The Committee Note to FRCP 26 goes further in explaining to the extent possible, the responding party should provide enough detail in its notice of the location and types of inaccessible media that may contain relevant ESI so the requesting party can evaluate to see the burdens and costs of providing the discovery and the likelihood of finding responsive information.
The requesting party may need discovery to test the assertion that the information is not reasonably accessible. Such discovery may involve taking depositions of those knowledgeable about the responding party’s information systems; some form of inspection of the data sources; and requiring the responding party to conduct a sampling of information contained on the sources identified as not reasonably accessible.
In cases involving vast amounts of ESI, or ESI that is not available from reasonably accessible sources, the cost to the producing party in locating the information, reviewing it for privilege, and otherwise preparing it for production may be much greater than in conventional discovery. Thus it may be appropriate to shift at least some of the production costs from the producing party to the requesting party. Two major cases—Rowe Entertainment, Inc. v. William Morris Agency, Inc. and Zubulake v. UBS Warburg LLC have introduced multifactor tests to determine when cost shifting is appropriate.
In Rowe, a racial discrimination case, the defendants objected to the production of e-mail information from backup media on the grounds that such discovery was unlikely to provide relevant information and would invade the privacy of nonparties, and they requested that the plaintiffs to bear the costs if production was required. The court concluded that the e-mail information sought by the plaintiffs was indeed relevant and that a blanket order precluding its discovery was therefore unjustified. However, balancing eight factors derived from case law, the court required the plaintiffs to pay for the recovery and production of the e-mail backups, except for the cost of screening for relevance and privilege. The eight Rowe factors were (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.
Zubulake, a gender discrimination case, also involved the production of e-mails that existed only on backup tapes and other archived media. After concluding that the plaintiff’s request was relevant to her claims, the court held that the usual rules of discovery generally apply when the data is in accessible format, but that cost shifting could be considered when data were relatively inaccessible, such as on backup tapes, and substituted seven factors for the Rowe factors. The Zubulake factors, in order of importance, were (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. The court emphasized that the factors should be weighted according to their importance.
Other courts have adopted or modified the Rowe and Zubulake decisions. The Committee Notes to Rule 26(b)(2)(B) makes explicit the authority to shift costs when information that is not reasonably accessible is being produced.
Next Up:
ESI and Spoliation
John Randall
President
Randall Consulting
