Some heavy but pertinent reading below. There has been unanimous approval by the Judicial Conference of the US on approved changes to the Federal Civil Procedures Rules that will significantly impact electronic discovery practice and procedure in federal courts. Unless the Supreme Court disapproves the amendments by next May
the changes will take effect in 12/06. The major changes can be
encapsulated as the recognition of "electronically stored information" as a distinct component electronic discovery and specific guidelines around ESI. I've excerpted and commented some of the proposed amendments below.
In short, this recognition at the Federal level shows the continued need and importance for solutions that enable electronic discovery, it recognizes that electronic data discovery is now a standard way of life and that state and local rules will not suffice as the creation of electronic information continues to grow. I do not think that most software vendors will manage to keep up with these rules and the effect that they have on their solutions and marketing positions. As we continue to see the market evolve and solutions converge towards legal discovery and archival it is important that we
do stay aware of these rulings. More information can be found at
http://www.uscourts.gov/rules rules6.html <
http://www.uscourts.gov/rules/newrules6.html>
Best,
Peter
MojicaClarifying and Conforming Proposed Amendments to
Rules 33 and 34. The proposed amendment to Rule 33 provides that a party may answer an interrogatory involving review
of business records by providing access to
ESI if the burden
of finding the answer is substantially the same for either party.
The proposed amendment to Rule 34 explicitly recognizes
ESI
as a category subject to discovery that is distinct from "documents"
and "things" to clarify that there are differences among them important
to managing discovery. Rule 34 is also amended to authorize a
requesting party to specify the form
ofproduction
and for the responding party to object. Absent an order, agreement, or
a request for a specific form, a party may produce responsive
ESI only in one form - the form in which the party ordinarily maintains it or in a reasonably usable form.
They are recognizing that the amount
of information is in many cases simply to much. This effects several industries, especially those that focus n
evidence preparation, that are specific to how law firms produce
evidence, this can negate the transformation
of electronic information into paper, where defendants overwhelm plaintiffs counsel with 1000's
of boxes
of paper. This makes our strategy for continuing to build and expand web based tools and pr
ofiles
for data access the continued correct direction. Other vendors are
stopping at the archival and basic search and query and interfacing
into third party tools for
evidence preparation or what they generally term e-discovery. Our view is that these industries
of archival and e-discovery are converging and this recognition at the
federal level will continue to support that view.
Addressing
Inadvertent Privilege Waiver - Proposed Amendment to Rule 26(b)(5). The
proposed amendment to Rule 26(b)(5) provides a procedure for asserting
privilege after production that is parallel to the similar proposals
for
Rules 16 and 26(f). The volume
of ESI searched and produced in response to discovery can be enormous, and certain features
of
the forms in which such information is stored make it more difficult to
review for privilege and work-product protection than paper. Thus, the
inadvertent production
of privileged or
protected material is a substantial risk. See Report at 10-11. Under
the proposed amendment, a producing party may notify the receiving
party, within a reasonable time,
of a claim
that privileged material or work product was inadvertently produced.
After receiving notification, the receiving party must return,
sequester, or destroy the information, and may not use or disclose it
to third parties until the claim is resolved. If the receiving party
disclosed the information before being notified, the receiving party
also must take reasonable steps to retrieve the information. The
receiving party has the option
of submitting
the information directly to the court to decide whether the information
is privileged or protected as claimed and, if so, whether a waiver has
occurred.
Again, the
federal courts are recognizing that the amount
of
information is overwhelming, and thus saying that mistakes will be due
to the volume and course corrections are allowed. So, one side or the
other can call a time-out and say we shouldn't have given you those
documents, please return and forget you ever saw them. If counsel
follows the above changes to
Rules 33 and 34 and provides electronic access
ESI then a full chain
of
custody is maintained within our systems. For example, ACME Corp. has
to produce records to plaintiff counsel, after deciding what they will
provide they provide access to the data instead
of sending the data. What this actually does, is give ACME Corp. a full audit trail
of what plaintiff looked at and when, it becomes part
of the audit trail for the chain
of custody. It may actually be better than providing paper
of CD's/DVD's
of
files. In the later case, ACME Corp has no idea if plaintiff looked at
every document provided, by providing access defendants can know not
only what they looked at, but more specifically what, if anything, they
did not look at.
Two-Tier Discovery: Proposed Amendment to
Rule 26(b)(2). The proposed amendment to Rule 26(b)(2) would require a
court order for production
of ESI that is "not reasonably accessible because
of undue burden or cost." The proposal recognizes a "distinctive, recurring problem" in e-discovery and builds on existing
rules to facilitate early production
of relevant and accessible
ESI.
And, it specifically references the 1983 proportionality amendments
first empowering judges to limit or forbid discovery where costs and
burdens outweigh benefits, explicitly implemented in the adoption
of
"two-tier" discovery in the 2000 Copy right 8 2005 Washington Legal
Foundation 4 ISBN 1056 3059 amendments. See Report at 11-13.
The amendment requires the responding party to identify, "by category or type," the sources
of potentially responsive information that it has not searched or produced because
of the costs and burdens
of accessing the information. If the requesting party moves for production
of
such information, the responding party has the burden to show that the
information is not reasonably accessible. Even if the responding party
makes this showing, a court may order discovery for good cause,
"considering the limitations
of Rule
26(b)(2)(C)," and "may specify conditions for the discovery." Such
conditions "may also include payment by the requesting party
of part or all
of the reasonable costs
of obtaining information from sources that are not reasonably accessible." See Committee Note at 45, 48.
Here we see that at the
Federal level they want to impose a standard
of
reasonableness for request for electronic information. This has already
been hashed out in lower court rulings and this takes into account that
not all
ESI is equal in terms
of
finding and producing it. The court is saying that they will be the
final arbiter when asking for data that is not easily accessible; this
can potentially mean; stored on tape, across thousands
of
local hard disks, other and its still open to interpretation, probably
the best litigator wins unless precedence exists or more prior rulings
are established at the
Federal level which establish precedence moving forward. The accessibility
of
programs like Google Desktop and other freeware tools and the
"accessibility" that they provide can create a condition where data
that was unreasonable to produce can suddenly become reasonable to
produce and require production
of more data during initial discovery with no cost to the requesting party. I believe that those companies that are mindful
of data accessibility and this rule
of reasonableness will err on the side
of caution for deploying or permitting use
of certain systems, operating systems and s
oftware
as ubiquitous technologies within their organizations. Massive indexing
and search a capability across the board with no controls is not
necessarily a good thing with respect to litigation, the archival
approach continues to bear well for the long-term.
Sanctions
- Proposed Amendment to Rule 37(f). Under the addition to Rule 37:
"absent exceptional circumstances, sanctions cannot be imposed for loss
of electronically stored information resulting from the routine, good faith operation
of an electronic information system."
The proposed rule recognizes that all electronic information systems are d
esigned
to recycle, overwrite, and change information in routine operation,
even without "specific direction or awareness," not because
of any relationship between the content
of particular information and litigation, but because they are necessary functions
of
regular business operations. The proposed rule also recognizes that
suspending or interrupting these features can be prohibitively
expensive and burdensome, again in ways that have no counterpart in
managing "static" hard-copy information. Even when litigation is
anticipated, it can be very difficult to interrupt or suspend the
routine operation
of computer systems to isolate and preserve discrete parts
of
the information they overwrite, delete, or update on an ongoing basis,
without creating problems for the larger system. Routine cessation or
suspension
of these features
of computer operation is also und
esirable; the result would be even greater accumulation
of duplicative and irrelevant data that must be reviewed, making discovery more expensive and time-consuming.
However, sanctions are not avoided simply by showing that information was lost by routine operation
of
an information system. It also must be shown that the operation was in
good faith. One factor in the good faith determination may involve
intervention to modify or suspend certain features
of a system's routine operation to prevent the loss
of
information, if that information is subject to a preservation
obligation. When and if such an obligation arises depends on the
substantive law and the circumstances
of each
case; the amendment does not create a new preservation obligation. The
logic behind the proposal is that the cost and disruption
of
interrupting routine computer systems are not justified when there
exist other means for preserving necessary and relevant information,
such as: a "litigation hold" process, early discussion
of the need for such extreme preservation measures, and entry
of
preservation orders tailored to the specific case. The proposed rule
should provide necessary guidance in a troublesome area distinctive to
electronic discovery.
This is the last and most interesting.
It discusses sanctions. On the surface it can be interpreted that
accidents such as erasure
of data might be OK,
as long as you can show that you were running your systems under the
good faith premise. The second paragraph does add clarity that this is
not as simple, and that efforts must be made to preserve and prevent
loss
of information. The "other means"
of
preserving information and not interrupting routine systems is what we
provide with the archival platform. This continues to add more emphasis
that major corporations should not build applications internally for
managing content that is regulated and possibly destined for legal
discovery, which today means nearly all data, from telephone call logs,
conversations, etc.
When we are going down the road of e-mail archiving for regulatory reasons is there a thing as 100% complete, or is 5 - 9’s accuracy good enough? 
