Managing Discovery of Electronic Information: A Pocket Guide for Judges
The Federal Judicial Center was established by Congress in 1967 in order to provide for the continuing education and training of federal judges. In 2012, the Center published, Managing Discovery of Electronic Information: A Pocket Guide for Judges, available at: http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt2d_eb.pdf/$file/eldscpkt2d_eb.pdf . Judge Lee Rosenthal (S.D. Tex.) - who issued the well known decision in Rimkus v. Cammarata - helped contribute to the guide. The guide is in a question and answer format. This is some of the information in the guide provided to general questions a judge might have which I was not familiar with and which gets down to brass tacks:
What is ESI? - draft and final documents may be found in different servers or drivers; an organization of 100 employees would be likely to send and receive 2.4 million emails on average.
What is the Judge's role in the discovery of ESI? the judge should encourage the parties to cooperate with one another at the earliest stages of discovery on potential disputes about ESI. "discovery involving ESI may require more frequent and intensive judicial involvement than is required by conventional discovery." Disputes about ESI have to be resolved early or litigation may 'stop in its tracks.'.
What matters should be discussed at the Rule 26(f) conference? The parties have to prepare short statements on their positions on any disputes about ESI production at the Rule 16 conference.
What preparations for the Rule 26(f) conference should be required? One of the parties Information Systems employees should be appointed as 'the ESI coordinator'. A list of the most likely ESI custodians, the most relevant electronic systems, the names of each individual responsible for document retention policies, the name of the person who will be the ESI discovery liasion, all need to be disclosed in advance as well as any problems regarding ESI discovery that are reasonably anticipated to arise.
What continuing consultation between the parties should be required? The Rule 26(f) conference is an 'ongoing process' not a procedural ticket to be punched before discovery can begin.
What disclosures are required under Rule 26(a)(1)? An exhaustive review of ESI is not required, but a "party’s initial disclosure should identify the nature of its computer systems, including its backup system, network system, and e-mail system and the software applications used by them."
How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? Even requests for active data may not be proportional to the needs of the case.
What factors are relevant to allocating costs? The pocket guide refers to a Rand study that gives the average cost for review of $22K per GB, and cites other sources which state that the processing and reviewing ESI constitutes 94% of the cost of production.
What principles apply to discovery from nonparties under Rule 45? The Stored Communications Act of 1986 limits ESI disclosures by the providers of communications services.
How should a court test assertions of privilege? Sampling may be prefered over standard in camera review.
Litigation holds: How can the court promote the parties’ reasonable efforts to preserve ESI? The duty to preserve ESI may extend to nonparty actors who have contractual obligations with a party to create or maintain it.