Slide breakdown for ediscovery

8/10/2019 Slide breakdown for ediscovery

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E-Discovery the new normal

Slide 1

Introduction

Carmody & Torrance E-Discovery Department

LauraJenEric

Relevant Rules and Agreements:

FRCP regarding Electronically Stored Information (pdf copy)DOJ agreement (PDF)

Other states law (PDF)

Why do Attorneys & Litigants care?

Opportunity

CostFine

Judgments

What must Attorneys & Litigants do?ESI Retention & Destruction

E-Discovery Management

slide 2

Why do we care?

1. Electronically stored information is pervasive - 95%

2. Sanctions - Risk of Non-Compliance3. Privilege protection

because ESI is pervasive and discoverable lawyers must know what it is, where it is, how

to keep it and how to preserve it to protect privilege


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slide 8

Rule 26(f) Amendments

... discuss any issues relating to preserving discoverable information and to develop a

proposed discovery plan...concerning:(3) any issues relating to disclosure or discovery of electronically stored

information, including the form or forms in which it should be produced;

(4) any issues relating to claims of privilege or protection as trail-preparationmaterial, including - if the parties agree on a procedure to assert such claims after

production- whether to ask the court to include their agreement in an order;"

slide 9

Meeting of Parties

ESI Issues must be addressed as soon as possibleParties must confer 21 days before the Rule 16(b) scheduling conference;

Rule 16(b) conference 120 days after filing of complaint;99 days to work out ESI issues

Multiple meetings

Slide 10

Rule 16(b) ESI Amendments

Rule 16(b) pretrial conference results in scheduling order

Scheduling order may include

Provisions for discovery of ESI

Any agreements the parties reach regarding post-productions assertion ofprivilege or trial preparation

Slide 11

Discovery of "Not Reasonably Accessible: - Rule 26(b)(2)(B)

Two Tier Approach

Tier 1: Rule 26(B) requires party to produce non privileged reasonably accessible ESI

Tier 2: Rule 26(b)(2)(B) - A party need not review and provide discovery of ESI fromsources that the party identifies as NOT reasonably accessible


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Slide 12

Reasonably Accessible ESI

No bright line rule - case by case basis

ESI is reasonably accessible when it is stored in a readily usable format that "does notneed to be restored or otherwise manipulated to be usable." Quinby v West LB, 2006 WL

2597900 at *7(S.D.N.Y., September 2006 (quoting Zubulake v. USB Warburg, LLC 217

F.R.D.309,320 (S.D.N.Y.2003 (Zubulake I))

Slide 13

Not Reasonably Accessible ESI

Potential sources identified by Advisory Committee to the Rules as "not readily

accessible"

Back up tapes intended for disaster recovery that are not indexed or searchableLegacy data from obsolete systems

"deleted" data that remains in fragmented from that would require forensicreconstruction

Databases designed to create information only in certain ways not amenable to

production

Backup tapes note reasonably accessible. (Zubulake v USB Warbug, LLC,217 F.R.d. 309

(SDNY 2003)(Zubulake III)

Sampling authorized to determine accessibility

Slide 14

Not Reasonably Accessible - Still Discoverable

Motion to compel or for protective order

Party from whom production is sought must show that information is notreasonably accessible because of undue burden or cost;

If court finds that the information is not reasonably accessible, the requesting

party must show "good cause" for discovery

Slide 15

"Good Cause"


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slide 3

Sources of ESI

Computers & file servers Home computers/laptops

Removable Media {disks, tapes, flash, usb) Corporate Intranets

Metadata PDAsembedded comments Backup systems

fragments/& histores Deleted filesAudit trails Peripherals

Access Control Lists Computerized voicemail

Access Control devices Cell phonesInternet Information (browsing history) E-mail

(Federal Guidelines pdf http://www.usdoj.gov/criminal/cybercrime/s&smanual.html)

slide 4

Overview of ESI Related Federal Rules of Civil Procedure

Five Areas addressed by E-Discovery

Admendments:Early Attention to Esi Through meeting & Conferring (Rule 16(b) & Rule 26(a)&(f))

Privilege - Post Production Assertion (Rule 26 (b)(5))

Discovery of Information that is not readily accessible & Cost shifting options (Rules 26,33(d) and 34(a)&(b))

Preservation of ESI & the Form of E-Discovery produced (Rule 34(a)&(b))

Sanctions pertaining to ESI (Rule 37(f))

slide 5

Early E-Discovery

Rule 26(f) & 16(b)

Require parties to consider how ESI will be preserved, maintained and produced

Rule 26(a) - Initial Disclosures


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Documents

Slide breakdown for ediscovery