Transcript EDD101_v8 presented at sales conference 2006.02.11

2006 Amendments to the
Federal Rules of Civil
Procedure Will Change How
You Address Electronically
Stored Information
Bay Area Intellectual Property
Inn of Court
September 20, 2006
Introduction
• Class Title:
2006 Amendments to the Federal Rules of Civil Procedure
Will Change How You Address Electronically Stored
Information
• Instructor:
Michael Rhoden, Esq.
Director of Product Development
Whitmont Legal Technologies, Inc.
(650) 963 - 1911
[email protected]
(c) 2005 Whitmont Legal Technologies, Inc.
MCLE Curriculum
INTRO_EDD - Intro to Electronic Data – What Electronic Data
Means To Your Practice
ALS 101 – Trends and Directions for Automated Litigation Support
EDD 101 – Introduction to and Solutions for eDiscovery
EDD 201 – E-Discovery Planning, Workflow and Specifications
EDD 202 – E-Discovery Collection & Forensic Processing
EDD 203 – E-Discovery Review & Production Solutions
FRCP_101 - 2006 Amendments to the Federal Rules of Civil
Procedure
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Agenda
• Background and Timing of Amended Rules
Implementation
• Amended Rules
• Wrap Up and Questions
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Background and Timing of
Amended Rules Implementation
• Advisory Committee 2000
• Draft rules and comment meetings
• Final report sent to Supreme Court September
2005
• Supreme Court – reviewed and forwarded
• Congressional deadline December 2006
• Absent congressional action, amended rules
effective December 1, 2006
• www.uscourts.gov – Federal Rulemaking link
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Amendments
• Early Attention to ESI Issues – 26(a), 26(f), Form 35
• Discovery of ESI Not Reasonably Accessible – 26(b)(2)
• Asserting Claims of Privilege and Protection After Production
– 26(b)(5)(b)
• Back to Early Attention to ESI Issues - 16
• Interrogatories and Requests for Production Involving ESI –
33, 34(a), 34(b)
• Sanctions for Loss of ESI (Document Retention Policies) –
37(f)
• Subpoenas - 45
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Early Attention
to ESI Issues
• Rule 26 (a) – “Meet & Confer”
• Rule 26 (f) – Specifics of Meet & Confer
• Form 35 – Form to report on Meet & Confer
• Rule 16 – Scheduling Conference – At this
point, all your ducks should be in a row.
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Early Attention to ESI Issues –
Rule 26
• 26(a)(1)(b) specifically includes ESI (broader) –
no longer “data compilations”
• 26(f) Meet & Confer to address:
– Litigation Hold - Any issues relating to preserving
discoverable information – 26(f)
– Form of Production - Issues relating to disclosure or
discovery of ESI, including the form or forms in which
it should be produced – 26(f)(3)
– Clawback & Quick Peek Agreements - Issues
relating to claims of privilege or protection as trialpreparation material, including . . . to include their
agreement in an order – 26(f)(4)
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Litigation Hold
• A litigation hold, also known as a "preservation order" or
"hold order," is a process used by companies to advise
their employees of pending or anticipated litigation and
of their obligation to preserve relevant records and to
suspend their normal records-destruction policies as
they relate to potentially relevant records
• Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243(SAS),
2004 WL 1620866 (S.D.N.Y. July 20, 2004) (“Zubulake
V”)
– Spells out parties and counsels obligations regarding
implementing and managing/maintaining a litigation hold
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Early Attention to ESI Issues –
Form 35
• Report to the Court regarding Rule 26
Meet & Confer revised to include:
– Disclosure of potentially discoverable ESI and
Issues
– Litigation Hold, Form or Form(s), Clawback &
Quick Peek Agreements
– Other issues too…but this summarizes the
amendments
• Form 35 has been modified to incorporate
amendments to Rules 16 and 26
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Early Attention to ESI Issues –
Practice Pointers
• Know what may be contained in client and target
electronic data stores – plan to discuss early on
• Know your Judge or Magistrate and how they
handle ESI
• Be proactive regarding ESI and offer
suggestions rather that letting other party or the
Court dictate terms
• Know the requirements of the new Rules
• Consider Zubulake V when assessing each
party’s litigation hold policy
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Discovery of ESI
Not Reasonably Accessible
• Rule 26(b)(2) – Two-tier Approach
– Tier 1: Low Hanging Fruit – accessible
material
– Tier 2: Identify inaccessible material
• Burden of claiming inaccessibility is upon
claiming party
• Challenging claim of inaccessibility is
incumbent upon requesting party
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Discovery of ESI Not Reasonably Accessible
– Rule 26(b)(2)
• A party need not provide discovery of ESI
from sources identified as not reasonably
accessible because of undue burden or
cost
• If challenged, the Party from whom
discovery is sought must show that the
information is not reasonably accessible
• Court may nonetheless order discovery
from such sources
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Discovery of ESI Not Reasonably Accessible
– Practice Pointers
• Common law, statutory and regulatory duties to
preserve data are not obviated by inaccessibility.
• Case law will need to develop and interpret this
provision, i.e. this will be litigated
• Judicial discretion is likely to result in expanded
use of sampling, neutral experts to evaluate
“accessibility” and increased incidence of cost
shifting per Zubulake I
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Discovery of ESI Not Reasonably
Accessible – Zubulake Accessibility
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)
[“Zubulake I”] - Whether inaccessible electronic data is
discoverable and, if so, how the cost should be borne
1.
2.
3.
4.
5.
Active, on-line data
Near-line data
Offline Storage
Backup Tapes
Erased and Damaged Data
General Rule - Responding Party pays costs to produce
accessible data, cost shifting MAY apply to inaccessible
data
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Discovery of ESI Not Reasonably Accessible
– Zubulake Cost Shifting
Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)
Whether inaccessible electronic data is discoverable and, if so, how the
cost should be borne
1.
2.
3.
4.
5.
6.
7.
Extent to which request is specifically tailored to discover relevant
information;
Availability of such information from other sources;
Total cost of production, compared to amount in controversy;
Total cost of production, compared to each party’s available
resources;
Relative ability and incentive of each party to
control costs;
Importance of issues at stake in the litigation;
Relative benefit to the parties of obtaining
the information.
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Asserting Claims of Privilege and Work
Product Protection After Production
• Rule 26(b)(5)(b) – Default Clawback
Procedures Absent Prior Agreement
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Asserting Claims of Privilege and Protection
After Production – Rule 26(b)(5)(b)
• If information is produced in discovery that is
subject to a claim of privilege or protection as
trial-preparation material, the party making the
claim may notify the party that received the
information of the claim and the basis
• Receiving party must return, sequester or
destroy all copies and not disclose the
information until the claim is resolved
• Receiving party can promptly present
information to Court for determination
• If receiving party previously disclosed, must take
reasonable steps to retrieve
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Asserting Claims of Privilege and Protection
After Production – Rule 26(b)(5)(b)
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Asserting Claims of Privilege and Protection
After Production – Rule 26(b)(5)(b)
• Does not address whether privilege
claim is waived by production and
extent to which privilege has been
waived
• Procedural Rules – Federal
• Substantive Rules – State
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Asserting Claims of Privilege and Protection After
Production – Federal Evidence Rule 502
• Proposed Federal Rule of Evidence 502 would codify waiver of
privilege and work product protection by disclosure, and includes
exceptions to such waiver.
• An exception for inadvertent disclosure addresses the concern that
the cost of privilege review has become prohibitive in cases
involving electronic discovery. The rule also codifies the controlling
effect of
– (1) court orders regarding the preservation or waiver of privilege or work
product protection and
–
(2) party agreements regarding the effect of disclosure
– FRCP 16 and 26 discussions
– Court orders are made applicable to non-parties, and party agreements
are binding on the parties to the agreement but not on other parties
unless the agreement is incorporated into a court order.
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Asserting Claims of Privilege and Protection After
Production – Rule 26(b)(5)(b) – Practice Pointers
• Producing Party should NOT rely solely
on this provision to save a claim of
privilege or protection
• Review all ESI thoroughly before
production
• May be a trap for the unwary
• Regardless of the court’s interpretation,
producing party still faces problem of
putting the genie back into the bottle
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Early Attention to ESI Issues
Rule 16
• Within 90 days of appearance of defendant or within 120 days of
service of defendant, the Scheduling Conference occurs.
• Prior to Scheduling Conference, the following has occurred and
been reported on to the court via Form 35:
– Parties disclosed pursuant to 26(a) their respective ESI
– Parties met and conferred pursuant to 26(f)
• Discussed and agreed to preservation procedures (Litigation Holds if
deemed necessary)
• Discussed and potentially agreed on the form(s) of production
• Discussed and agreed upon Clawback and/or Quick Peek Agreements
– In addition, the parties discussed how they will sample, if at all,
inaccessible data
• Scheduling Order Issued by Judge pursuant to 16 that includes the
above.
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Interrogatories and Requests for Production
Involving ESI
• Rule 33 – Interrogatories
• Rule 34(a) – Requests for Production
• Rule 34(b) – Requests for Production
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Interrogatories Involving ESI – Rule 33
• Allows production of ESI in response to
interrogatory
• IF “the burden of deriving or ascertaining the
answer is substantially the same for the party
serving the interrogatory as for the party served”
• Note: Responding party may be required to
provide some combination of technical support,
information on application software, or other
assistance
• Party producing ESI in response to interrogatory
may be required to provide direct access to its
ESI system
(c) 2005 Whitmont Legal Technologies, Inc.
Interrogatories Involving ESI – Rule 33
Practice Pointers
• Be very careful responding to an
interrogatory by directing requesting party
to ESI – may subject your system to
scrutiny, sampling and testing
• Responding by direction to ESI may allow
privileged or protected material to be
produced
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Requests for Production Involving ESI –
Rule 34(a)
• ESI is a separate category of information
• Text of the rule allows a party to “test or
sample” including ESI, and also including
access to producing party’s network,
subject to reasonableness
• Allows discovery of ESI stored in any
medium
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Requests for Production Involving ESI –
Rule 34(b)
• Request may specify form or forms in which ESI is to be
produced
• Responding party may object to the requested form of
production or if no form of production stated, responding
party MUST state form or forms it intends to use
• If request does not specify form(s) of production,
responding party must produce ESI as ordinarily
maintained or in reasonably usable form(s)
• Request need not specifically request documents and
ESI, they are read together in request
• Party need not produce same ESI in more than one form
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Requests for Production Involving ESI –
Rule 34(b) – Practice Pointer
• Williams v. Sprint/United Mgmt. Co., 230
F.R.D. 640 (D. Kan. 2005)
– Court held that when a party is ordered to
produce electronic documents as they are
maintained in the ordinary course of business,
the producing party should produce the
electronic documents with their metadata
intact, unless that party timely objects to
production of metadata, the parties agree that
the metadata should not be produced, or the
producing party requests a protective order.
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Requests for Production Involving ESI –
Rule 34(b) – Practice Pointer
• Nova Measuring Instruments Ltd., v.
Nanometrics, Inc., 417 F.Supp.2d 1121
(N.D.Cal. March 6, 2006)
– Defendant “must produce the documents in
their native file format, with original metadata.”
– Defendant ordered to produce documents
identified to correspond to each aspect or
element of each accused instrumentality
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Sanctions for Loss of ESI
• Rule 37(f) – Document Retention Issues
(document destruction policies)
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Sanctions for Loss of ESI – Rule 37(f)
• Absent exceptional circumstances, a court may
not impose sanctions for failing to provide ESI
lost as a result of the routine, good-faith
operation of an electronic information system
• Provides limited protection against sanctions
• Reasonableness of “routine” information system
operating in “good faith” – must have both
components
• Consider and incorporate vendors that are
managing documents for producing party
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Sanctions for Loss of ESI – Rule 37(f) –
Practice Pointers
• Survey of Sanctions imposed for discovery abuse related to
electronic data indicate that the profile of a typical
sanctioned party is a defendant that destroys electronic
information in violation of a court order, in a manner that is
willful or in bad faith, or causes prejudice to the opposing
party. – See Morgan Stanley
• In our sample, we did not discover a single case where a
court sanctioned a party solely for following its document
retention and recycling policy; there was always another
consideration. Whether documents had been deleted or
destroyed was not dispositive of whether courts were likely
to impose e-discovery sanctions. Courts tended to focus on
the prejudice to the party seeking discovery, as well as on
the spoliator’s culpable state of mind.
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Subpoenas
• Rule 45
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Subpoena – Rule 45
• Amended to track Rule 34
• Allows subpoena of ESI
• Request may specify form or forms in which ESI is to be
produced
• If request does not specify form(s) of production,
responding party must produce ESI as ordinarily
maintained or in reasonably usable form(s)
• Party need not produce same ESI in more than one form
absent court order for good cause
• Allows testing or sampling, including ESI, including
access to producing parties network, subject to
reasonableness and need
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Subpoena – Rule 45, objections
• Amended to track Rule 34
• Requesting party “shall take reasonable steps to avoid undue
burden or expense to responding party” so be cognizant of this
possible objection
• Responding party may object to the requested form(s) of production
• Not required to produce ESI from sources not reasonably accessible
• Provisions for assertion of privilege and protections as trialpreparation materials after production (“Clawback”)
• Receiving party can promptly present information to Court for
determination
• If receiving party previously disclosed, must take reasonable steps
to retrieve
(c) 2005 Whitmont Legal Technologies, Inc.
Wrap Up
• Background and Timing of Amended Rules
Implementation
• Amended Rules
• Forms
• Questions
(c) 2005 Whitmont Legal Technologies, Inc.
Closing
• Class Title:
2006 Amendments to the Federal Rules of Civil Procedure
Will Change How You Address Electronically Stored
Information
• Instructor:
Michael Rhoden, Esq.
Director of Product Development
Whitmont Legal Technologies, Inc.
(650) 963 - 1911
[email protected]
(c) 2005 Whitmont Legal Technologies, Inc.