18. Ten Most Important e-Discovery Rules
1. Federal Rule of Civil Procedure (FRCP) 26(b)(2)(b) - Think Bring back 2 Business, and use the mnemonic: NRA FAD? OUI - The cost of the production shifts to the requesting party when data is Not Reasonably Accessible when:
Forensic Recovery is necessary to access the data.
Obsolete - the data is stored on obsolete media.
The data is stored on UnIndexed back up tapes
This isn't strictly true, but you can remember this mnemonic by asking if not reasonably accessible data as a concept is a fad since everything will be retrievable from the Cloud soon - the answer is Yes!
2. FRCP 26(b)(5)(b) - this rule concerns the clawback of inadvertently produced privileged material.
26Bring Hives Back.- you see bees working everywhere but you're not supposed to see inside the hives that arethe Attorney Client / Work Product area.
3. FRCP 26(a)(1)(C) - @ 1 half of a calendar page - ID - Initial disclosures are due 14 days after the 26(f) meet and confer.
4. FRCP 26(f) - the meet-and-confer must take place 99 days after the filing of the complaint. Remember 'M.C. Face' - this when the parties give their rap face to face.
At the meet-and-confer the parties need to know how accessible their data, where and how it is stored, and the cost of retrieval.Use this mnemonic, employing similar body imagery: CRAW - half way between the stomach of storage & mouth of production.
5. FRCP 26(g) requires attorneys to sign document requests, responses and objections. For the
'G' just think of a G man with gun to do the enforcing.The rule provides for sanctions if electronic disocvery requests are excessive.If Document Requests' Burdens and Costs are made Without Consideration, Mandatory Sanctions If Not Substantially justified.Try using the mnemonic:
DR SIGN BCWC M SINS
Think of a doctor signing off an ancient W.C. having committed a mortal sin.
6. FRCP 30(b)(6) – requires a witness who can testify on behalf of a business. If the witness cannot answer questions at a deposition, a party may be forced to produce another witness or face sanctions.
7. 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 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.
Ford Motor Co. v. Edgewood Props. (2009) – Ford informed defendant that it would produce ESI as TIFF images with searchable text. Edgewood did not resolve the disagreement. Ford produced tiff images over 9 months without Edgewood objecting. After this period the defendant’s motion to compel production of native ESI was denied, and Ford was allowed to use the TIFF format.
In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation (2007) – court held that the production of non-searchable documents is a violation of Rule 34(b).
8. 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.
9. 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.
10. 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 metadata may be used to authenticate ESI.
19. Ten Ways to Keep an Edge on Your e-Discovery Expertise
1. Sedona Conference and Working Group Series –
a. Cooperation Proclamation – lists judges who have signed on to it.
b. Working Group Series –started in 2002.
i. Electronic Document Retention and Production - Working Group 1
ii. Protective Orders, Confidentiality and Public Access - Working Group 2
iii. International Electronic Information Management, Discovery and Disclosure - Working Group 6
iv. Data Security and Privacy Liability - Working Group 11
2. www.discoveryresources.org - this site which requires registration includes a podcast called Views from the Bench and a blog authored by Mary Mack, recently appointed the head of ACEDS. There’s also an extensive e-discovery glossary. Users have the potion to post their own comments to the site.
3. Law Technology News www.lawtechnews.com - this site sends out daily emails with the latest news.
4. Electronic Discovery Law www.ediscoverylaw.com – this site is maintained by K&L Gates which has an e-Discovery Analysis and Technology group. It has a database with summaries of hundreds of state and federal decisions regarding e-discovery issues.
5. E-Discovery Team Blog http://ralphlosey.wordpress.com – Losey is a partner at firm in Orlando who is well known for his knowledgeable articles on predictive coding.
6. LexisNexis Applied Discovery Online Law Library http://www.lexisnexis.com/electronic-discovery/whatsnew.asp
7. American Bar Association Journal www.abajournal.com ¸see specifically http://www.abajournal.com/blawgs/topic/legal+technology
8. Legal Technology’s Electronic Data Discovery
9. Supreme Court of the United States www.supremecourtus.gov
10. Cornell Legal Information Institute www.law.cornell.edu