E-Discovery Rules Mnemonics Part 2
FRCP 34(b) - BODY: specify a form for it or be satisfied with ordinary maintenance. If you delay exercise , you can't object to your BODY. Never double down at meals. FRCP 34(b) concerns the form of document productions. While a requesting party may specify the the form of production in its initial request, if they delay long enough in stating their preference for a particular form they will have to be satisfied in the format in which the data is automatically maintained, and may not raise an objection under this Rule. FRCP 34(b) also requires that parties can't simply 'data dump' on the other side. It's necessary to sufficiently identify and index the ESI in your production.
FRCP 37(e) - after 1937, Shanghai was an Entrepot away from the danger of the Japanese invasion- This rule provides a 'safe harbor' if parties did not preserve ESI but had written Electronic Records Management policy and followed it consistently.
FRE 502(b) - 50 (adopted the FRE - [this almost true]) 2 to get things Back.
Lawyers are snakes who will try to steal your secrets so use this mnemonic to remember the rules of 502(b):
In Attack Duck RattleSnakes Poisonous, RattleSnakes Fierce, Pythons Near.
If there is an InAdvertent Disclosure of privileged documents, you must have taken Reasonable Steps to Prevent its disclosure in the first place, and also take Reasonable Steps to Fix the production after disclosure and provide Prompt Notice after discovering the inadvertent disclosure.
FRE 901 - provides that parties must authenticate the ESi that they produce. To remember the number of this rule, this of it as, 'NINE ZERO ONE' or 'No Zigzaging Offroad' - you stay on the true path and don't alter the data that you produce.
ESI may be authenticated by testimony that it is what it claims to be; its authenticity is ultimately a fact question for the jury; and meta data may be used to authenticate ESI.