Transcript CCTI

Electronic Discovery Guidelines
FRCP 26(f) mandates that parties
“meaningfully meet and confer” to consider the
nature of their respective claims and defenses.
Moreover, the rule requires that parties discuss
the preservation, disclosure and discovery of
electronically stored information, including the
format in which the information should be
produced. The rule also requires that parties
discuss issues relating to claims of privilege and
work product protection.
Electronic Discovery Guidelines
 Meet and Confer – Process
– Rule 26(f)(1)- requires the parties to meet and
confer to develop a proposed discovery plan prior
to the Rule 16 pretrial conference and to submit a
written report to the court.
– At the Rule 16 pretrial conference the parties meet
with the court to discuss, among other matters, the
proposed discovery schedule and any anticipated
discovery disputes.
– The Court has the opportunity at this time to get
involved and potentially resolve discovery/litigation
issues that may arise.
Existence of Electronic Information
Prior to the Fed. R. Civ. P. 26(f) conference,
Counsel should become knowledgeable about their
clients’ information management systems and their
operation, including how information is stored and
received. In addition, counsel should make a
reasonable attempt to review their client’s electronic
information files to ascertain their contents, including
archival, backup, and legacy data (outdated formats
or media)
Duty to disclose
Counsel shall review with their clients the clients
electronic information files, including current files as
well as back-up, archival, and legacy computer files,
to determine what information may used to support
claims or defenses. If disclosures of electronic
information are being made, counsel shall also
identify those individuals with knowledge of their
clients electronic information systems who can
facilitate the location and identification of
discoverable electronic information
Duty to notify
A party seeking discovery of computer-based
information shall notify the opposing party of that fact
immediately, and, if known at the time of the Fed.R.
Civ. P. 26(f) conference, shall identify as clearly as
possible the categories of information that may be
sought.
Note: Rule 26(b)(2)(1) allows the Court to limit allowable
discovery if the burdens outweigh the likely benefits,
serving to discourage speculative requests.
Duty to meet and confer regarding electronic
information
During the Fed.R. Civ. P. 26(f) conference the
parties shall confer regarding the following
matters:
1. Counsel shall attempt to agree on steps the parties will take
to segregate and preserve computer based information in
order to avoid accusations of spoliation. Counsel shall also
attempt to agree on the steps the parties will take to comply
with the decisions and rules requiring the preservation of
potentially relevant information after litigation has
commenced.
Duty to meet and confer regarding
electronic information
2.
Email. Counsel shall attempt to agree on the
scope of email discovery and email search protocol
3. Deleted information. Counsel shall attempt to
agree on whether deleted information still exists,
the extent to which restoration of deleted
information is needed, and who will bear the costs
of restoration.
Duty to meet and confer regarding
electronic information
4.
Back-up and archival data. Counsel shall attempt
to agree on whether back up and archival data
exists, the extent to which it is needed and who will
bear the cost of obtaining such data.
5. Costs. Counsel shall discuss the anticipated
scope, cost and time required for disclosure or
production of data beyond what is reasonably
available to the parties in the ordinary course of
business, and shall attempt to agree on the
allocation of cost
6.
Duty to meet and confer regarding
electronic information
Format and media. Counsel shall discuss and
attempt to agree on the format and media to be
used in the production of electronic material.
7. Privileged material. Counsel shall attempt to reach
an agreement regarding what will happen in the
event privileged material or information is
inadvertently disclosed
Sources: USCourts.gov
Texas and Kansas
Metadata
 All the contextual, processing, and use information
needed to identify and certify the scope, authenticity,
and integrity of active or archival electronic
information.
 Examples of metadata; a file’s name,
location(filepath) filetype, file size, creation date, date
of last modification…other examples; track changes
in MS word and blind copies in email; and formulas
and hidden columns in MS Excel
Importance of Rule 26(F)
 Gives the parties the opportunity to reach
agreement regarding parameters of the litigation.
 Gives the parties the opportunity to agree on
what they “disagree” about and present their
disputes for early judicial resolution. (at the Rule
16 (b) Conference).
Sedona Cooperation Proclamation
The Sedona Conference launched a
coordinated effort to promote cooperation by
all parties to the discovery process to
achieve the goal of a “just, speedy, and
inexpensive determination of every action.”
Sedona Cooperation Proclamation
An effort to promote open and forthright
information sharing, dialogue, training and
the development of practical tools to
facilitate cooperative, collaborative and
transparent discovery.
The Proclamation challenges the bar to
achieve these goals and refocus litigation
toward the substantive resolution of legal
disputes.
Sedona Cooperation Proclamation
The Sedona Conference’s effort is to change
the culture of discovery from adversarial
conduct to cooperation, maintaining it is an
exercise in economy and logic and will result
in an appropriate application of the law by
channeling valuable advocacy skills toward
interpreting the facts.
Sedona Cooperation Proclamation
The Sedona Conference calls for a paradigm
shift, and focuses on the amended FRCP’s
specific emphasis on ESI discovery and the
need for early communication to streamline
information exchange and avoid costly
disputes.
Sedona maintains that an attorneys “officer of
the court” duties demand no less.
Best Practices
 Prior Planning is essential. Counsel must
become familiar with the computer storage
systems of their clients.
 Mutual exchange of information prior to the first
Rule 26(f) conference.
 Bring the proper representatives that can best
contribute to the outcome.
 Make it an iterative process.
Meet and Confer – Potential Litigation is
Recognized.
Review your client’s Record Retention Plan
Prepare and Send Litigation Hold notices.
Identify and meet key players and custodians
Determine the existence of relevant legacy data
and preserve it, including backup tapes.
 Determine if relevant data has been destroyed.
 Monitor compliance with the litigation hold.
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Best Practices- Requesting Party
 Determine what you already know about the ESI evidence
and what you need to know. Custodians? Forensics?
 Address preservation needs. Follow up repetitively that it
has been accomplished.
 Know what production formats of data you can handle. Can
it be rolling?
 Clarify and communicate issues you wish to address:
– Opponents systems, locations, back up procedures,
native data formats and volume.
– Who you would like present at the conference.
 Expect a reciprocal request- so learn your clients
systems.
Best Practices- Producing Party
 Know your clients systems.
 Know what formats of data you can preserve and produce.
 Clarify and communicate issues you wish to address:
– Opponents systems, locations, back up procedures,
native data formats and volume.
– Who you would like present at the conference.
 Have IT experts, vendors or consultants available.
 Insure you have preservation under control.
Meet and Confer- Preparation
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Plan and Schedule the session(s)
Identify and prepare 30(b)(6) witnesses
Determine the size and scope of relevant ESI.
Establish collection protocols and methodologies
Consider costs
Prepare confidentiality/clawback agrements.
Establish your Rule 26(f) team
Meet and Confer - Event
 Agree on Agenda of initial meeting. Plan
additional sessions based on complexity of the
case.
 Agree on data scope including:
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Key custodians
Location of data
Data accessibility
Time frame
Meet and Confer - Event
 Discuss opposition’s computer system, including
backup procedures.
 Agree on keyword search terms & search
technologies.
 Agree on production format, bates numbering
and or other marking techniques.
 Agree on confidentiality orders, protective orders
and clawback agreements.
Resources
 50 Questions- Craig Ball