Electronic Discovery and Digital Evidence in a Nutshell - Chapter 3 Outline

Here's another installment of my outline Electronic Discovery and Digital Evidence in a Nutshell, the second edition of the West Academic guide to electronic discovery law in the United States authored by Judge Shira Scheindlin (the judge in the Zubulake v. UBS Warburg) and members of the Sedona Conference. Tonight's outline covers Chapter III on The Meet and Confer Rule (Rule 26(f)) and Initial Scheduling Conference (Rule 16). An outline of the previous chapter was posted on November 19, 2016.

III. The Meet and Confer Rule (Rule 26(f)) and Initial Scheduling Conference (Rule 16)

A. The Rule 26(f) Conference

- Must meet before Rule 16 scheduling order is due.

- Focus on preservation; cost; accessibility; issues at stake,

- 2015 Amendments:

- views and proposals re: preservation of ESI.

- 16f3D - ask court to include agreement on privilege issues in a FRE 502 order - no waiver.

-2006 Amendments:

- 26f must discuss preservation; discovery of ESI; form of production; procedure for retrieving inadvertently produced privileged material.

- Consider sampling to determine the scope of sampling - find cost of review & production, yield rate.

- Discuss when metadata must be preserved - case specific consideration.

- Consider bringing technical consultant to meet & confer.

1. PRESERVATION OF EVIDENCE

- Advisory Committee Note - preservation orders should be narrowly tailored, and only if evidence may disappear and a party will be harmed by this.

- Most case law says document retention protocol and hold notices do not have to be produced. But U.S. ex rel. Barko v. Halliburton said holds could be produced b/c widely distributed.

- Documents in Possession, Custody, and Control

i. current and archived records.

ii. current and former employees.

iii. acquired companies and spin-offs.

iv. records of bankrupt entities that migrated.

v. records stored off-site.

- Small v. Univ. Med. Ctr. of So. Nev. (D. Nev.) - possibility of info on personally devices slipping thru cracks requires greater diligence than for company controlled devices. Does a request for ESI on personal device need to be narrowly tailored?

- Goodman v. Praxair (D. Md.) - party has control when it has the legal authority or practical ability to demand access to records, not necessarily physical possession or legal ownership.

2. DISCOVERY OR DISCLOSURE OF ESI

- 2006 Committee Note - early discovery from person w. special knowledge of computer systems useful.

- Da Silva Moore v. Publicis Groupe (S.D.N.Y.) Judge Peck okays use of TAR; recommends that the process be transparent.

- Kleen Prods. v. Packaging Corp. (N.D. Ill.) cooperation mandated by the court in dispute of whether TAR or keyword searching was best.

3. FORM OF PRODUCTION

PDF/TIFF; searchable?; include metadata?

4. RETRIEVING PRIVILEGED INFORMATION

- Clawback or quick peek agreement.

- Agreement should be incorporated in a court order.

- FRE 502 must be discussed at Rule 26f meet and confer.

5. DUTY TO COOPERATE

- 2008 Sedona Cooperation Proclamation -

- Western Convenience v. Suncor Energy (D. Colo.) 357 pages of briefing on motion to quash subpoena could have been avoided if parties put same effort into cooperation.

B. THE RULE 16 CONFERENCE

- 16a court can order pretrial conference

- 16a2 early and continuing control so case will not be protracted because of lack of management.

- 16a3 courts should discourage wasteful pretrial activities.

- Rule 16b order - provisions for ESI discovery; agreement for asserting privilege.

C. INTERPLAY BETWEEN RULE 26(f) AND RULE 16

- After Rule 26f meet and confer parties must submit a written report to the court outlining a proposed discovery plan.

- Rule 26f meet and confer show good faith effort to comply with Rules at the Rule 16 pretrial conference.

- 2015 Amendments additions to Rule 16 order

- preservation of ESI

- FRE 502 agreements.

- Pre-motion conference required before motion re: discovery dispute.

- Rule 16f can sanction attorney if not prepared prepare to participate in Rule 16 conference.

D. RESULTS OF FAILING TO COOPERATE AT THE 26(f) CONFERENCE

- In re Seroquel Prods. (M.D. Fla.) problems with plainly inadequate discovery could have been resolved through cooperation by technical consultants responsible for production on each side. Failure to include knowledgeable electronic discovery consultants in the meet and confer is “antithetical to the Sedona Principles and is not an indicium of good faith.”; “identifying relevant records and working out technical methods for their production is a cooperative undertaking, not part of the adversarial give and take.”

- Atlas Resources v. Liberty Mut. Ins. (D.N.M.) - failure to exercise control over discovery process warrants sanctions when it leads to gross negligence in the discovery process. Examples: including producing a five hundred page document thirty-five times, the purposeful conversion of documents from native format into the useless, disorganized TIFF format, and the failure to conduct adequate searches for information.

E. LOCAL RULES OR COURT GUIDELINES

- N.D. Cal.; D.N.J.; D. Kan.; and D. Md. adopted rules regarding electronic discovery.

- 7th Circuit and S.D.N.Y. 26f conference checklists.