Tomorrow Night- Review for Final- Bring Questions
Tonight Guest Speaker- Greg Sheldon
E-Discovery Certification Instructor- 9months beginning in Fall
Federal E-Discovery
• Formal information gathering process
• Not the only way to gather useful info
Records Management
• Identify, control and retain records to protect business interests
• Reduce burden, cost, and risk of maintaining records
• Destroy documents that have no legitimate business interest
• There is nothing wrong with a policy of destroying documents after there is no good business reason to keep it.
Legal Hold
• Obtain confirmation of receipt/compliance
• Monitor and quality assure collection and preservation of relevant information, periodic reminders
U.S. v. Philip Morris USA, Inc.
• $2.5 million in fines for failure of 11 employees to follow litigation hold on email
• Employees in question not permitted to testify
Bright v. United Corp.
• Defendant had won case on summary judgment at trial
• defendant's employee preserved digital video footage of the incident, but deliberately chose not to preserve the footage immediately before and after incident.
• Appellate court ruled plaintiff was entitled to "adverse inference" instruction (assume damaging to defendant) and overturned the trial court
Civil Rules
• 16, 26-37, 45
➢ Pretrial conferences
➢ Duty to disclose
➢ Depositions- oral or written
➢ Interrogatories
➢ Production of documents
➢ Inspections
➢ Physical or Mental Examinations
➢ Request for admission
Overview of Amendments
• Effective Dec. 1, 2006
• "Lay down discovery"- as soon as you are notified of suit, you automatically turn over relevant documents.
• ESI included in mandatory initial disclosure
• Counsel required to discuss ESI at initial pre-trial conference
• Encourage early cooperation of counsel
• Empower courts to incorporate agreements into CMOs (Case Management Order)
• Limited protection from production for ESI that is not reasonably accessible
• Address inadvertent production
• Protection from sanctions for deletion/loss in regular course of business
• Safe-harbor from sanctions
New Terminology
• Electronically Stored Information ESI
• Not defined in the new rules
• Meant to be "flexible enough to encompass future changes and developments"
• Update boilerplate document requests and interrogatories
Rule 1. Scope and Purpose
• These rules govern the procedure in all civil actions in the US District Courts.
• "They should be construed and administered to secure the jus, speedy, and inexpensive determination of every action and proceeding."
Early Attention to e-discovery
• Rules 16, 26(a), and 26(f)
• Mandates pre-trial conference in Federal Court
• Scheduling order provides timeline
• Rule 29 allows modification to discovery deadlines
• Rule 26(a)- requires parties to disclose "a copy of or a description ... of ESI"
➢ Required disclosure
• Names and contract info of witnesses
• Rule 26(f)- preservation of evidence, form of production
➢ Conference- know what your client has, and how it's being stored, etc.
Coleman v. Morgan Stanley
• $1.5 billion verdict
➢ Suit over Sunbeam meltdown
➢ Partial default judgment
➢ $15 million fine to SEC for violating e-mail retention laws
➢ Mistakes happen, but if not revealed can be extremely damaging
RTP CR 34
• Testing and Sampling
➢ "test or sample any designated documents or ESI"
• Not effective
➢ Disruptive
➢ Encroaches on protections
➢ Not meant to create a routine right of direct access to opposing parties ESI
Form of Production
• Producing party can object to format
• "in a form in which it is ordinarily maintained or in a form that is reasonably usable"
• Avoid producing in "native" format
➢ Subject to manipulation
➢ Cannot be redacted or bates stamped
➢ Need same software to view
Two-Tiered Production
• 26(b)(2)(B) allows a party to withhold information it identifies as "not reasonably accessible because of undue burden or cost"
Aubuchon v. BeneFirst
• Medical bills were "not reasonably accessible"
• BeneFirst must produce the requested information and bear the cost of production
• No reward for sloppy filing
Capitol Records v. MP3Tunes
• Unable to conduct centralized email searches of groups of users without downloading them to a separate file and relying on the service of an outside vendor
Cost Shifting
• Cost may be shifted to requesting party if information is on source that is not reasonably accessible
• Requesting party: share or bear costs
• Responding party: costs related to review
Privilege and Work Product Issues
• 26(b)(5)(B) added to formalize procedure regarding inadvertent production
➢ If disclosed, must take reasonable steps to retrieve
➢ Receiving party "must promptly return, sequester or destroy"
• ER 502
➢ Inadvertent production not a waiver
