Perspectives on Discovery from an Attorney / Records Manager 3/15/2007 ©The Cadence Group, Inc Confidential & Proprietary Information is our Forté

2 Introduction RM owes a BIG THANK YOU The Changes to the Rules Is Anything that Different? What Can You Do to Be Prepared? Observations

3 Information is our Forté What Brought about the Change?  Default Judgment for plaintiffs for discovery abuses including failure to produce >Metro. Opera Ass’n v. Local 100 Hotel Employees’ and Restaurant Employees’ Union (S.D.N.Y. 2003)  Adverse inference jury charge for destruction of evidence >Zubalake v. USB Warburg (S.D.N.Y. 2004)  $2,995, sanction for failure to preserve s >U.S. v. Philip Morris USA Inc. (DDC 2004)

4 Information is our Forté Discovery Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. FRCP Rule 26(b)(1)since 1937

5 Information is our Forté Advisory Committee Notes The amendments to subdivision (b) make clear the broad scope of examination and that it may cover not only evidence for use at the trial but also inquiry into matters in themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case. Notes of Advisory Committee on Rules— 1946 Amendment

6 Information is our Forté Rule 26 after 1993 amendment: Rule 26(a)(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: (B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

7 Information is our Forté 1993 Advisory Committee Notes to Rule 26 A n itemized listing of each exhibit is not required, the disclosure should describe and categorize, to the extent identified during the initial investigation, the nature and location of potentially relevant documents and records, including computerized data and other electronically-recorded information,

8 Information is our Forté The Sky Is Not Falling What has changed? >Meet & Confer topics stated >Electronically Stored Information (ESI) >Claw Back Provision >Rule 37 Safe Harbor

9 Information is our Forté FRCP Rule 26 (b)(2)(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion…, the party from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that burden is met the court may nonetheless order discovery from those sources if the requesting party shows good cause… Amendment effective 1 December 2006

10 Information is our Forté FRCP Rule 26 (f) some additions Parties to meet…at least 21 days before a scheduling conference…to discuss any issues relating to preserving discoverable information… (3) any issue relating to disclosure or discovery of ESI, including the form or forms in which it should be produced; (4) any issue relating to claims of privilege…including---if the parties agree on a procedure to assert such claims after production… Underlining identifies changes

11 Information is our Forté Rule 34 Right to Inspect (a) Any party may serve on any other party a request… to inspect… any designated document or electronically stored information. (b)…The request may specify the form or forms in which electronically stored information is produced. FRCP Rule 34 Rule 34 inspection was always part of the Rules. ESI is now spelled out.

12 Information is our Forté New to the Rules ESI is spelled out in the Rule >It is an effort to make the rules reflect common language >It clarifies, When we say computer, we mean computer >Accessible v. Inaccessible applies only to electronic date What about that warehouse full of boxes that were never inventoried?

13 Information is our Forté What “They” Are Saying  Judges do not understand technology.  Safe Harbor May Not Be Safe.  Claw-back provision offers some peace of mind.  Rule 26 (f) Meet & Confer has created a new burden to disclose information.

14 Information is our Forté What Can Records Managers Do? Evaluate Records Management Infrastructure  Does your Organization have Executive Support?  Is your RM Infrastructure well developed? >Does it meet industry standards? >Does it comply with established practices? >Does it work at all levels? If not what needs fixing? What is missing?  When was your Records Retention Schedule last updated?  Do you have a well-organized plan for managing e-records?

15 Information is our Forté What Can Records Managers Do? Records Management: A three legged stool.  Policies/Procedures  Training  Policing

16 Information is our Forté Policy/Procedures  Policy >Overarching RM statement includes; life cycle, records security, disposal suspension and new businesses integration  Procedures >Step by step process for managing lifecycle of various forms of information within organization  Records Retentions Schedule >Defines minimum retention period based on operational, legal/regulatory and business requirements Manage All of These Consistently

17 Information is our Forté Training  Train All Users on P/P  Communicate Changes and Inform Users  Use Creative Method to enhance learning  Keep Training  Refreshers

18 Information is our Forté Policing  Audit Users  Audit Systems for needs  Look for how to improve learning

19 Information is our Forté What are Plaintiffs looking for?  Is your RM infrastructure complete?  Do you follow your policy consistently?  Are things organized?  Substantive items to support case  How can I make it costly for the other side?

20 Information is our Forté What Are Some Companies doing?  Relying on Software that does not meet the needs  Piece-meal application  Not Training  Not Policing  “RM is not on our radar.”  “We are not a regulated industry.”  “We are not a big enough target.”

21 Information is our Forté What Are Some Companies doing?  44% of organizations have Litigation Readiness plan for Paper  36% have Litigation Readiness Plan for Electronics  <50% have legal Holds Process in Place  11% Strongly Agree that RIM is consistently enforced * 2006 AIIM Industry Watch On-Line Survey delivered Q4,06

22 Information is our Forté Tips for the Prepared  Have a solid infrastructure  Consistently apply Records Policy governing lifecycle  Manage Your Paper (Records & Non-Records)  Be organized  Train, Train, Train  Audit, Police, Look for ways to improve.  * Map Electronic Environment * including legacy

23 Information is our Forté Final Words Records Management: It is not Rocket Surgery

24 Information is our Forté For More Information Thank You  Contact... >Jeffrey Bridges > x144  On our Website download… > >Disposal Suspension: Are You Ready When the Summons Comes? >RM Services