E-Discovery for Dummies Outline - Chapters 3 & 4

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

preserve ESI.

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

minimal.

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.

n.Collaboration Platforms

i. Google Docs

ii. MS Office Live Workspace

o.Project Management

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.

b.FRCP 16

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

transparency required.

g.For cooperation:

i. ESI discovery point person

ii. Exchange information on relevant ESI sources; including those not

searched.

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:

1. Embarrassment

2. Oppression

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

issues.

m. Improper Handling – ad hoc handling of metadata. FRCP 37(f)

safe harbor if metadata managed as per normal business practices.

n.References

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