intro to eDiscovery

Question 1

FRCP (2006 Amendments)

Answer 1

• Redefine discoverable material
• Encourage early attention to issues relating to ediscovery
• Discuss the concept of “reasonably accessible”
• Provide a procedure for asserting claims of priviliege and work product after production.
• Provide a mechanism for “safe harbor” limits on sanctions related to loss of ESI as a result of operations of computer systems.

Question 2

Federal Rules of Civil Procedure (FRCP)

Answer 2

Govern the procedure for civil lawsuits in US district or federal courts. At the state level, each state has their own set of statutes and rules that govern the procedure for civil lawsuits in state court.

Question 3

Rule 26(f),

Answer 3

• also know as, “Meet and Confer” process.

- the rules for when sanctions may be imposed on parties for discovery failures

Question 4

EDRM

Answer 4

The Electronic Discovery Reference Model, or EDRM, is a roadmap for navigating the discovery process.

Question 5

Discovery

Answer 5

The pre trial phase in a lawsuit in which each party, throught the law of civil procedure, can obtain evidence from the opposing party. By extension, e-discovery is discovery of electronically stored information.

Question 6

ESI

Answer 6

Electronicall Stored Information (ESI) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.

This includes data stored on individual computers, servers, memory cards, smartphones, tablets, computer networks, the Internet, and any other electronic format and platform.

Question 7

Potentially Relevant Infomration

Answer 7

Information that is relevant to a claim or defense of the lawsuit in deemed “potentially relevant information.”

Question 8

Legal Hold

Answer 8

A process used by a person or entity to preserve all forms of potentially relevant information when litigation is reasonably anticipated.

Question 9

Producing Party

Answer 9

A producing party is a party that is responsible for turning over the portion of ESI that is deemed to be relevant for a case or other legal inquiry. The producing party can be a plaintiff, defendant, or third party.

Question 10

Non-Party

Answer 10

A person or entity that is not named as a party to a lawsuit.

Information held by a non-party can still be considered to be within a party’s possession, custody, or control.

All cases differ in their facts, however, courts are generally likely to shift the costs of burdensome eDiscovery requests form non-parite sto the parties in litigation.

Question 11

EDiscovery Specialist

Answer 11

The eDiscovery specialist is responsible for presenting data to his/her clients in the most complete, understandable, and readable format possible.

Question 12

Electronic Discovery

Answer 12

Electronic Discovery is the exchange of information from computers, smartphones, portable devices, or any electronic source in litigation. It is usually shortened to eDiscovery or eDiscovery

Question 13

Discoery in Civil Litigation

Answer 13

In civil litigation, discovery entails identifying, capturing, processing, reviewing, and presenting electronically stored information (ESI) to exchange with the requesting party for potential use in court.

Question 14

FRCP Guidance on handling ESI

Answer 14

In 2006, the FRCP rules were updated to include guidance on handline ESI in litigation. Most state courts have adopted these rules in whole or in slightly modified versions. The updated rules have made it explicit that any electronic records are potentially discoverable for litigation.

They have been interpreted to include new and emerging sources in digital records, including social media, database records, and records and applicaitons stored in the cloud.

The most important 2006 amendment was simply to include electronically stored information on the list of information that is discoverable throughout the discovery process.

Question 15

FRCP 2006 Amendments

Answer 15

• Redefine discoverable material
• Encourage early attention to issues relating to eDiscovery
• Discuss the concept of “reasonably accessible.”
• Provide a procedure for asserting claims of privilege and work product after production.
• Provide a mechanism for “safe harbor’ limits on sanctions related to loss of ESI as a result of routine operations of computer systems.

Question 16

FRCP 34

Answer 16

Rule 34 dictates disclosure and discovery related to “producing documents, electrornically stored information, and tangible things or entering onto land, for inspction and toerh purposes.”

Question 17

Electronically Stored Information

Answer 17

is broad enough to cover all currnet types of computer based information and intended to be flexible enough to encompass future changes and technological developments.

Question 18

FRCP 26(a)(1)(A)

Answer 18

Litigants are required to make certain initial disclosures in all cases without a formal request.

Question 19

According to FRCP 26(a)(1)(A), except as exempted by Rule 26(a)(1)(B), Parties must, without awaiting a discovery request, provide to the other parties: i

Answer 19

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with hte subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Question 20

According to FRCP 26(a)(1)(A), except as exempted by Rule 26(a)(1)(B), Parties must, without awaiting a discovery request, provide to the other parties: ii

Answer 20

a copy- or description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.

Question 21

According to FRCP 26(a)(1)(A), except as exempted by Rule 26(a)(1)(B), Parties must, without awaiting a discovery request, provide to the other parties: iii

Answer 21

a computation of each category of damages claimed by the disclosing party - who must also make available for inspection and copying as under FRCP Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

Question 22

According to FRCP 26(a)(1)(A), except as exempted by Rule 26(a)(1)(B), Parties must, without awaiting a discovery request, provide to the other parties: iv

Answer 22

for inspection and copying as under FRCP Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgement in the action or to indemnify or reimburse for payments made to satify the judgment.

Question 23

FRCP Rule 26(f):

Answer 23

Conference of the Parties: Planning for Discovery “Meet and Confer”

Rule 26(f) added an important new requirement to pre-trial discovery-the meet and confer. Under this rule, except in a proceeding exempted from initial disclosure under Rule FRCP 26(a)(1)(B) or when the court order otherwise.

The parties must confer as soon as practical - or at least 21 days before a scheduling conference is to be held or a scheduling order is due under FRCP 16(b)

Attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference and for attending in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.

Court may order the parties or attorneys to attend the conference in person.

Question 24

Under FRCP Rule 26(f), Parties must consider:

Answer 24

• The nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case.
• Make or arrange for the disclosures required by FRCP Rule 26(a)(1).
• Discuss any issues about preserving discoverable information
• Develop a proposed DISCOVERY PLAN.

Question 25

Discovery Plan (1)

Answer 25

1. What changes should be made in timing, form, or requirement for disclosures under FRCP Rule 26(a), including a statemen tof when initial disclosures were made or will be made.

Question 26

Discovery Plan (2)

Answer 26

2. The subjects on which discoery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be liited to or focused on particular issues.

Question 27

Discovery Plan (3)

Answer 27

3. Any issues about disclosure or discovery of electronially stored information, including hte form or forms in which it should be produced.

Question 28

Discovery Plan (4)

Answer 28

4. Any issues about claims of privilege or of protection for trial preparation materials, including if the parties agree on a procedure to asset these claims after production, whether to ask the court to include their agreement in an order.

Question 29

Discovery Plan (5)

Answer 29

5. What changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and,

Question 30

Discovery Plan (6)

Answer 30

6. Any other orders that the court should issue under FRCP Rule 26(c) or under FRCP Rule 16(b) and (c).

Question 31

FRCP Rule 34(a)(1)

Answer 31

A party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting paryt or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control.

Question 32

Non-Party Involvement

Answer 32

There are two basic variations of the relationship between the producing paryt and a non-party:

1. When the ESI belongs to or directly involves the producing party but is held by a nonparty, it is referred to as non-party hosted information
2. Whne the ESI belongs and relates solely to the non-party, but is nevertheless potentially relevant to the matter, it is referred to as non-party information

Question 33

Non Party’s Responsibility to Preseve ESI

Answer 33

A written agreement between the paryt and non-party should include terms addressing the rights and obligations in the event of litigation and discovery.

When a legal hold takes effect or a paty receives a request for production, the nonparty must be notified of the:

• The producing partys legal duty to preserve ESI
• That the duty to preserve extends to ESI held by the non-party in control of the producing party
• The steps the non-party should take to presreve the potentially relevant ESI in its possession.

Question 34

Requesting Data form Nonparty Respondents

Answer 34

An FRCP Rule 45 subpoena serves as a court order to a nonparyt which can be written by an attorney.

• FRCP Rule 45 Application, Under Rule 45, nonparties can be servedwith a subpoena, which has the authority of a court order.
• Legal Hold Obligation, Rule 45 subpoenas obligate the recipient to assess the status of the ESI covered by the subpoena and to consider instituting a legal hold.
• Possible objections, sufficiency of the subpoena, means of service, scope of the requested production.

Question 35

ESI Delivery by Non Parties

Answer 35

It is withing generall accepted practice for a nonparty ot turn over its ESI in a relatively “raw” state to the producing party

The producing party may need to process, review, and produce eht ESI at its own expense in a form that is reasonable for the requesting party.

Question 36

FRCP Rule 30

Answer 36

EDiscovery Depositions by Oral Examination.

Addresses the taking of a deposition from a corporate entity.

Question 37

FRCP Rule 30(b)(6)

Answer 37

EDiscovery Depositions by Oral Examination.

The specific rule that covers serving a subpoena on a corporation

Question 38

FRCP Rule 30(b)(6)

Answer 38

EDiscovery Depositions by Oral Examination.

In its notice or subpoena, a party may name as the deponent a pubic or private corporation, a partnership, an association, a governmental agency, or other entity, and must describe with reasonable particularity the matters for examination.

Question 39

FRCP Rule 30(b)(6)

Answer 39

EDiscovery Depositions by Oral Examination.

The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.

Question 40

FRCP Rule 30(b)(6)

Answer 40

EDiscovery Depositions by Oral Examination.

A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or resonably available to the organization.

Question 41

FRCP Rule 26(b)(2)(C)

Answer 41

Cost Sharing or Cost Shifting are implicit here, under which “the court may specify certain conditions for the discovery” of ESI from not reasonably accessible sources.

Many judges rely on proportionality rule to require cost shifting or cost sharing in lieu of “limiting the frequency or extent” of discovery.

Others limit cost sharing or cost shifting ot production of ESI from not reasonably accessible sources. The party seeking cost sharing or cost shifting bears the burden of overcoming the presumption that each party bears its own litigation costs.

Next we will cover the different types of cost sharing models of ESI.