1 Amendments to the Federal Rules Electronic Discovery Dino Tsibouris (614)

2 December 1 Pretrial planning required Electronically Stored Information Format selection The Times They Are AChangin

3 Litigation holds Safe Harbor Failure to comply results in sanctions State courts will follow The Times They Are AChangin

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

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

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, s, 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 16 Scheduling Order Pretrial Conference: The court may include in the scheduling order: 1)provisions for disclosure or discovery of electronically stored information; 2)any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production;

16 Rule 16 Scheduling Order Amended Rule 16(b) Underscoring importance of Rule 26 Conference, Courts 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 1.Specificity of the request 2.Quantity of information available from other, more easily accessed sources 3.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 4.Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources 5.Predictions as to the importance and usefulness of the additional information

26 Rule 26 Balancing Test Considerations 6.Importance of the issues at stake in the litigation 7.The parties resources

27 Rule 26 Balancing Test Considerations 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) 4.Predictions as to the importance and usefulness of the additional information (Z7) 5.Importance of the issues at stake (Z6) 6.The parties resources (Z4)

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 (contd) 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 33 Production 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 33 Production 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 33 Production 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 45 Subpoena 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 45 Subpoena 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 45 Subpoena Practice

43 Rule 45 Subpoena 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 45 Subpoena 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 45 Subpoena 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 45 Subpoena 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 45 Subpoena 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 37 Safe 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 37 Safe 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 37 Protection 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"

51 Rule 37 Protection is Narrow Litigation hold Spoliation notice What is the standard of culpability?

52 Rule 26 Conference to Plan Discovery Develop defensible practices Consistent application of RM procedures If no overall plan, look for some patterns of consistency Be able to educate and warn your attorney about issues

53 15 Minute Break

54 Practical Affect of these Changes – What to do to Prepare? Maintain up-to date records & information management policies, procedures and schedules Audit your procedures Modify policy & procedures Document the process

55 Practical Affect of these Changes – What to do to Prepare? This is all about: Good records management Internal controls Compliance

56 Practical Affect of these Changes – What to do to Prepare? Guidelines SOX Industry Best Practices Emphasis is on your Processes and Procedures

57 Practical Affect of Changes - What to do to Prepare? Maintain and track all of your organizations past policies, procedures & schedules This is about documenting past RM compliance Shows that you have been consistently & systematically following a good faith process Dont forget to include all procedures & documentation of your inactive record keeping systems

58 Practical Affect of Changes - What to do to Prepare? Maintain and use an in-house glossary of records management terminology Business units should use common terms Technology terms must be part of the glossary

59 Practical Affect of Changes - What to do to Prepare? Maintain an active Map of the Organization - With respect to each business unit or department, you should know: Know where each record series is stored Know what is the general content of each series

60 Practical Affect of Changes - What to do to Prepare? You should know (Contd): The available formats or media Identify key associates, IT personnel or Experts who can assist with any large electronic systems –Prevents cost allocation & shifting –Records may need to be made available in native formats with metadata intact

61 Practical Affect of Changes - What to do to Prepare? Be prepared to assist Legal in identifying and preserving relevant records or associates within those business units Need to have a system to track all legal holds Provide associates with education/training/tools to preserve records

62 Practical Affect of Changes - What to do to Prepare? Need to create tools to automatically suspend all automatic destruction processes legal hold records Need to be able to assist legal counsel in identifying and protecting attorney- client information

63 Practical Affect of Changes - What to do to Prepare? Continuously create, update and document a systematic and consistent approach towards records management

64 Practical Affect of Changes - What to do to Prepare? Include a routine good faith operation for destroying records and information Different processes for different types of record systems Document the destruction processes

65 Practical Affect of Changes - What to do to Prepare? Automate systems where appropriate Will prevent Rule 37 Sanctions Normal changes will not protect willful destruction or unchecked overwriting

66 Questions & Answers