The Coming Amendment to FRE 902

Federal Rule of Evidence 902 covers certain types of evidence that are self-authenticating. About a year from now, on December 1, 2017, two new sections will be added to this Rule, assuming they are approved by the Supreme Court and not rejected or modified by Congress. The proposed revisions are given in this report by the Rules Committee of the Judicial Conference of the United States. The first new section, section 13, concerns:

(13) Certified Records Generated by an Electronic Process or System

A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).

The proponent must also meet the notice requirements of Rule 902(11).

So documentation generated by a computer may be considered authentic without additional extrinsic evidence. In noting that certification under this section only covers the admissibility requirements for authenticity, and allows open the possibility for it be objected to on other grounds, the notes to the proposed new section give two examples of types of evidence that may be certified: a printout of a web page, or output from a computer such as a spreadsheet.

The second new section, section 14, concerns:

14) Certified Data Copied from an Electronic Device, Storage Medium, or File.

Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

The notes discuss how the use of hash values (which they define - somewhat inaccurately - as, " unique alpha-numeric sequence of approximately 30 characters that an algorithm determines based upon the digital contents of a drive" - MD5 hash values have 32 characters, and SHA1 hash values have 40 characters) can be used to authenticate data copied from an electronic device without testimony by a foundation witness. A certification can be submitted by a qualified person attesting to the fact that the hash value of an electronic file offered into evidence matches that of the original. The notes also leave open the possibility that technical processes other than hash values can be used to verify copied data.

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.

The New FRCP One Year Later

Tonight I attended a presentation at the Benjamin N. Cardozo School of Law of Yeshiva University, hosted by the Cardozo Data Law Initiative and the Sedona Conference. The panel consisted of Judge Ron Hedges, (a former Magistrate Judge for the U.S. District Court for the District of New Jersey); Steve Bennett, a partner with Park Jensen Bennett LLP; Matt Knouff, eDiscovery Counsel at Complete Discovery Source; and Ariana Tadler, a partner at Milberg LLP. The presentation reviewed the impact of the December 1, 2015 amendments to the Federal Rules of Civil Procedure. The materials are part of the Sedona Conference's training program, which included a PowerPoint slideshow with video clips of judges discussing their views on the meaning of the revised rules. The following are my rough notes on the discussion.

Knouff began the presentation by discussing the data explosion that has taken place since the previous revision of the rules in December 2006. Facebook and Twitter started in 2006, (actually the former just became widely available that year), and Hadoop was introduced in 2007. Microsoft reports that for an average case it preserved 48 million pages; collects 13 million pages; and reviews 645,000 pages. The presentation reviewed the history of the process of arriving at the 2015 amendments, which involved the initial conference at Duke in 2010; public hearings in D.C., Phoenix, and Dallas with testimony by 120 witnesses; and more than 3000 submitted comments - far more than the usual number. Tadler noted that the proposed rules were perceived as being pro-business, and that an rough mix of comments from both plaintiff and defense lawyers were received.

Judge Hedges noted that new rules effecting service and deadlines under the rules will come into effect this week.

The group emphasized the key goals of the December 2015 amendments:

1. Cooperation

2. Early case management

3. Changing the scope on the basis of relevancy and proportionality.

4. Establishing national sanctions standards. [or curative / remedial measures, as Rule 37 doesn't actually use the term 'sanctions'.]

The group noted Judge Lee Rosenthal (S.D. Tex.) has stated that despite the committee note to FRCP 1 stating, "Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.", parties should not even think of filing motions on the basis of opposing counsel not being cooperative. Rule 1 only states an expectation. It's declaratory.

Judge Hedges noted that the key ethical guidelines were the counsels' duty of candor to the tribunal under Model Rule of Professional Conduct 3.4 and duty of candor to the tribunal under Rule 4.4. He also referred to the California Bar's Formal Opinion No. 2015-193 which stated that lawyers had an ethical obligation to understand electronic discovery technology. He recommended reviewing the Sedona Jumpstart Outline, co-authored by Tadler, which provides an outline of issues to discuss with clients on preservation problems and responses to requests for production. Bennett noted that the notes to the ABA's Rule 1.1 also discuss the need to be aware of, "benefits and risks associated with relevant technology".

Judge Hedges has noted that local rules have expanded on the cooperation requirement and specifically referenced the rules specific to Judge Paul Grimm's (D. Md.) chambers, which I believe are posted here, and state that. "Whether a party or counsel has cooperated during discovery also will be relevant in determining whether the Court should impose sanctions in resolving discovery motions." Since the Sedona Cooperation Proclamation was issued in July 2008, 150 state and local judges have endorsed it, and it has been cited in 50 published opinions.

Judge Hedges recommended that Judge Peck's Rule 502(d) template order be used to address the clawback of inadvertently produced privileged documents.

Knouff noted that while Rule 34 document requests can be delivered 21 days after a summons is served, they are not actually considered served until the Rule 26(f) conference takes place. He noted that FRCP 34(b)(2)(c) requires objections to be stated when data is withheld. Bennett speculated that it might be possible to make 'reserve objections' in case later view of data indicates they are needed, but Judge Hedges brought up that this could fall afoul of the FRCP 26(g) certification requirement. Knouff pointed out the District of Kansas decision (in Rowan v. Snowflower ?) that allows for the specification of data searches as basis for indicating what data is being withheld, as an alternative to the privilege log format that would list individual documents withheld.

The group provided this sample objection as good an example of what can be used to respond to a document request:

Tadler cautioned this should not be used as a boilerplate for any case as salary information could be relevant for employment cases. Judge Hedges faulted this form response for not listing a basis for withholding 17 pages of files.

Jim Daly of Seyfarth Shaw LLP was in the audience and pointed out that the SEC, DOJ, and FCC have specific requirements for the forms of production which are in the Code of Federal Regulations.

Steve Bennett noted the comment to FRCP 26(b)(1) which states, "Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available." is a reference to the use of TAR which he predicted would be become the dominant form of review in the next 10 years. Judge Hedges questioned this because he said that at least 9 out of 10 cases don't involve large document productions. Running keyword searches might be sufficient in smaller scale cases. The judge made a reference to 17,000 documents as being the break even point for TAR, which is a possible reference to a max size for a seed set. See this posting on the Catalyst site.

Judge Hedges complained about the fact that in attempting to use letters rogatory to obtain overseas production, he only found out after 11 months that France wasn't going to provide the production.

In a video clip, Judge Craig Shaffer of the District of Colorado noted that Rule 26(b) would have to be applied against the backdrop of FRCP 1's admonition to construe, administer and employ the rules for the just, speedy, and inexpensive determination of every proceeding.

Judge Hedges warned against conceiving of proportionality just in terms of dollars and cents and warned that other factors had to be considered as well.

In a video clip Judge Jeffrey Sutton of the 6th Circuit (the Chair of the Standing Committee on the Rules of Practice and Procedure) remarked upon how the removal of the language in FRCP 26 about the scope of discovery including data reasonably calculated to lead to the discovery of admissible evidence, effected the relevancy of the SCOTUS case Oppenheimer v. Sanders, which was based on a version of the Rule including this language. He criticized some judges for continuing to cite this precedent after December 2015.

The group acknowledged that the amendment to FRCP 37 was intended to address the finding in Residential Funding Corp. v. DeGeorge Fin. Corp., by the Second Circuit that sanctions could be imposed for the negligent failure to preserve.

Judge Hedges said that he disagreed with Judge Francis' dicta opinion asserting that judges still have the inherent authority to sanction.

The video presentations alos consisted of comments by Judge David Campbell of the District of Arizona; and Judge Joy Conti of the Western District of Pennsylvania.