15. Viewing Electronic Discovery Law From the Bench
a. Reasonableness Standard
i. FRCP 26(g) must certify that a reasonable inquiry has been made into getting all ESI for case and that disclosure is complete and correct.
1. Interviews with IT personnel and custodians – types of ESI and where stored.
2. If inquiry not made, FRCP 26(g) provides for sanctions.
b. Adverse Inference
ii. Qualcomm v. Broadcom – sanctions for not making inquiry
1. must include analysis of sufficiency of document search terms and locations.
i. Can be sanctioned for not cooperating.
ii. Gross Construction Assocs. v. American Mfts. Mutual Ins. Parties could not agree on terms, so the court has to draft a list. Court criticized both parties.
c. Form of Production
i. Ford Motor Co. v. Edgewood Props., 8 mo. delay before objection to form of production is unreasonable – “unduly burdensome” – shouldn’t have to redo production for late objection.
d. Judicial Role
i. Begins at Rule 16 conference held after the meet & confer and usually results in case management order that set discovery time frames.
ii. Clawback agreements
iii. Protective order limiting privileged, protected, or not reasonably accessible ESI.
e. Scheduling Conferences
i. FRCP 16(c)(2)(C ) - court’s role in controlling and scheduling discovery.
ii. Judge will incorporate Meet & Confer agreements in scheduling order.
i. FRCP 53 – appointment of special master for:
1. Duties consented to by parties.
2. Making findings of fact on issues decided without a jury.
3. Regulate process of discovery
4. Compel or protect evidence
5. Advise the court
6. Invoke sanctions but not contempt
ii. Judge Scheindlin article in Cardozo Law Review on common uses for masters in e-discovery
1. Facilitating process of e-discovery
2. Monitoring compliance vis-à-vis ESI.
3. Adjudicating legal disputes re: ESI.
4. Adjudicating tech. disputes and help parties comply, such as system inspections.
5. Adjudicating claims of privilege and protection.
iii. Sheila El-Amin v. George Washington University, Judge Facciola
1. "create a system whereby all existing documents are hyperlinked to fields in a database that will permit the instantaneous retrieval from within the database of information offered by plaintiffs in support of any factual proposition."
2. Judge provided an example database with fields for the claim number; date; plaintiff’s evidence in support; defendant’s objection and any countering evidence; and court’s ruling.