3. E-Discovery Best Practices
a. FRCP 37(e) sanctions if failure to obey order for discovery
i. Adverse inference
b.Zubulake – affirmative steps to preserve necessary; litig. hold
c. Kevin Keithley v. TheHomeStore.com, IT can’t claim ignorant of need to
d.United States v. Philip Morris – in-house lawyers must forcefully
intervene to ensure ESI is preserved.
e. Lorraine v. Marketl Am. Ins. Co.
i. must promptly suspend automated processes to overwrite ESI;
ii. metadata must be kept intact.
iii. Emails and other docs may be examined by forensic expert.
f. Arteria Property v. Universal Funding def. sanction for failure to preserve
data on web site even though it was maintained by 3rd party vendor.
g.Archive saves ESI with a searchable index.
i. Backup copies can be in unsearchable data dumps.
h.United States ex rel. Parikh v. Premera Blue Cross
i. PwC non-party objects retrieval too expensive
ii. Doesn’t identify standard to calculate expense.
iii. If preparing to produce some emails, implication that it has
retrieved all emails – cost of retrieval assumed and production cost
i. Relying on custodians to preserve ESI not good faith effort.
j. Litigation Hold:
i. Identify ESI to be preserved, who has it.
ii. Designate person in charge of hold.
iii. Notify all involved.
iv. Verify compliance and document
k. Padgett v. City of Monte Sereno sanction when employee with no
knowledge of hold, reformatted coworker’s hard drive.
l. Phillip M. Adams v. Dell, Fujitsu, Sony, ASUS deliberate destruction of
evidence is spoliation. Responsbile employees not enough – must have
coherent retention policy.
m. RSS – send information automatically to a digital device.
i. Google Docs
ii. MS Office Live Workspace
i. Milestones marking completion of tasks.
ii. Multiple concurrent or sequential activities
iii. Resources specifically allocated to tasks.
iv. Resources also constraints
v. End results – time, cost, performance, or quality
vi. Team of people
vii. Critical path – tasks that must be completed on schedule or
projection completion will be delayed.
4. Federal Rules and Advisory Guidelines
a.FRCP 1 – just, speedy, and inexpensive determination of every action.
i. c/b and quick peek agreement.
ii. Dates of future conferences
iii. Provisions on disclosure of ESI
iv. Limits on extent of disclosure
v. Scheduling and planning confer. 120 days after compl.
vi. 16(c) preservation or protective order
vii. 16(f) sanction if scheduling or pre-trial order not obeyed.
c. FRCP 26
i. 26(f) meet and confer 21 days before scheduling conference.
ii. Disclosure within 14 days of meet and confer
d.FRCP 33(d) interrogatories – can specify records to be reviewed.
e. FRCP 34(b) specify form of ESI to be produced.
f. William A. Gross Const. v. Am. Mfg.Mutual Ins. J. Peck court shouldn’t be
in position of crafting keyword methodology; cooperation and
i. ESI discovery point person
ii. Exchange information on relevant ESI sources; including those not
iii. Early ESI disclosures
iv. Automated search and retrieval methodologies
v. Experts or mediators to resolve disputes.
h.FRCP 53 – ESI special master can be appointed.
i. FRCP 26(b)(2)(c) – discovery can be limited if:
i. Unreasonably cumulative
ii. Unreasonably duplicative
iii. Obtained from other less burdensome sources.
iv. Requesting party plenty of time to obtain.
v. Benefit outweighed by burden or expense
vi. Protective order against:
3. Undue burden
4. Overly broad request
j. FRCP 37(e) no sanction for failure to produce ESI from routine good faith
i. Doe v. Norwalk Community College no safe harbor if document
retention policy not followed.
k. Adverse Inference
i. Duty to preserve
ii. Loss or destruction intentional
iii. ESI relevant
l. Sanctions only imposed if good faith certification to confer to resolve
m. Improper Handling – ad hoc handling of metadata. FRCP 37(f)
safe harbor if metadata managed as per normal business practices.
i. Sedona – 14 e-discovery principles.
ii. National Law Conference Principles
iii. ABA E-discovery standards
iv. Electronic Discovery Reference Model
v. Federal Rules Advisory Committee Notes