Transcript GlaxoSmithKline Legal Department February 6, 2002

Federal Rules of Civil Proceudure
FRCP
After five years of discussion and public comment
the proposed amendments took effect on December
1, 2006…specifically changing language in six
rules…Rule 16, 26, 33, 34, 37 and 45…with particular
attention to electronic discovery issues…or
“discovery of electronically stored information (ESI).
 Rule 16 and 26 now require counsel to discuss ESI
and its potential relevance in “meet and confer”
meetings in advance of the scheduling conference
with the court…and this meeting takes place within
120 days of a company filing a lawsuit…and 21 days
prior to the scheduling conference
 Because this 99 day limit will give us a hard date for
ESI information plans that may be included in the
scheduling plan…it will be very important for
corporations to have their processes in
order…retention programs, litigation holds, IT
involvement, etc.
 Additionally, rule 26 (b)(5) now permits parties to
retrieve inadvertently disclosed, privileged
information under the “clawback” agreements.
Although meant to reduce costs, still a concern to
hand over “un” reviewed ESI. Consider a
comprehensive protective order…and even then?
 FORMAT of production…
– Initially a “native production” was to be required,
but for several reasons the “native format” was
changed in Rules 34 and 45 to read “reasonably
usable”. And by discussing this at the “meet and
confer” the court should see fewer disputes
arising out of issue.
BE PREPARED
– Know what you have…
• Coleman v. Morgan Stanley & Co. Inc. (Fla. Cir.
Ct. Mar. 1, 2005) where “not knowing” what
they had…resulted in a 1.45 billion dollar
verdict.
 Rules 26, 33, and 34 will now mention ESI to
be discussed as part of party disclosures or
responses
 FRCP 26 (and Rule 45 : subpoenas)
– “not reasonably accessible” in regards to
ESI…will further define burden for a producing
party…but be prepared for challenges…online
data is “accessible” and current backups are
probably accessible…but 15 year old tapes on
outdated media may be allowed as “not
reasonably accessible”…but still must be
preserved if exists
 Rule 37(f) – newly added
– Provides guidance regarding the destruction of
ESI…”Absent exceptional circumstances, a court
may not impose sanctions…”
– BUT, beware…without a “published”, monitored,
managed retention program…this will be a heavily
scrutinized area…and with overlapping litigations
in a large corporation, this “safe harbor” rule may
mean no backup tapes can ever be destroyed…
 Federal Rules are guidelines
– …the court will continue to manage the litigation as they
interpret the requirements…if they determine ESI is relevant
they can require it to be produced…accessible or
not…reasonableness will continue to be the strongest
position to present your case