Craig Ball's Electronic Discovery Workbook

Craig Ball's Electronic Discovery Workbook

November 11, 2016

The well known electronic discovery expert Craig Ball does the world a great service by making Electronic Discovery Workbooks from his class at the University of Texas School Law available online free for all to download.  The 2015 edition was only 143 pages long.   The new version released just this Fall is 432 pages long.    I'm going to read through and post sections of the outline I prepare online.  Here's the first installment.   Ball begins with a reprint of the provisions of the Federal Rules of Civil Procedure, which I'll summarize here.

 

 

 

 

 

I. Introduction to Discovery in U.S. Civil Litigation 

 

Until the mid-20th century, the trial of a civil lawsuit was an exercise in ambush.  There was no right to see documentary evidence before trial.  An exception to this was through Bills of Discovery which were usually only for your claims but not your opponents.  

 

The Federal Rules of Civil Procedure were passed in 1938.     It provides for the following discovery devices. 

 

  • ·  Oral and written depositions (Rules 30 and 31);

  • ·  Interrogatories (Rule 33);

  • ·  Requests to inspect and copy documents and to inspect tangible and real property (Rule 34);

  • ·  Physical and mental examinations of persons (Rule 35);

  • ·  Requests for admissions (Rule 36);

  • ·  Subpoena of witnesses and records (Rule 45).

 

The “E-Discovery Rules” (1,16,26,34 & 45) of the Federal Rules of Civil Procedure With Committee Notes accompanying 2006 and 2015 Amendments

 

Rule 1 Scope and Purpose - Rules are to be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.   NOTES: This amendment does not create a new or independent source of sanctions.

 

Rule 16. Pretrial Conferences; Scheduling; Management - A scheduling order must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared

 

(i) Deadlines for disclosures under Rules 26(a) and 26(e)(1);
(ii) Extent of discovery;
(iii) ESI discovery / preservation;
(iv) Privilege clawback agreements, incl. FRE 502 agreements. ;
(v) court conferences needed before discovery orders;
(vi) pretrial conferences and trial dates; and
(vii) include other appropriate matters.

 

FRCP 16(c) Attendance and Matters for Consideration at a Pretrial Conference.

 

Rule 26. Duty to Disclose; General Provisions Governing Discovery

26(a) Required Disclosures - 

     1. Initial Disclosures 

           (i) contact info for individuals likely to have discoverable information used to support claims or defenses, unless used solely for impeachment.

           (ii) copy of ESI and documents, used to support claims or defenses, unless used solely for impeachment.

           (iii) damages calculations

           (iv) insurance agreement under which insurance co. liable to pay judgment.

Exempt from Initial Disclosure - forfeiture action in rem arising from federal statute, et al.

Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f)conference unless a different time is set by stipulation or court order,

     2. Expert Disclosure

     3. Pretrial Disclosures

     4. Form of Disclosures

 

26(b) Discovery Scope and Limits 

26(b)(1) Scope in General

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering:

1.the importance of the issues at stake in the action, 

2. the amount in controversy, 

3. the parties’ relative access to relevant information,

4. the parties’ resources, 

5. the importance of the discovery in resolving the issues, and

6. whether the burden or expense of the proposed discovery outweighs its likely benefit.

. . .Information within this scope of discovery need not be admissible in evidence to be discoverable. 

 

26(b)(2) Limitations on Frequency and Extent  - can alter limits on depositions and interrogatories.  Not reasonably accessible ESI because of undue burden or cost.  

26(b)(3) Trial Preparation: Materials. 

26(b)(4) Trial Preparation: Experts

26(b)(5) Claiming Privilege or Protecting Trial Preparation Materials

 

 

26(c) Protective Orders  issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense by:

  • forbid discovery

  • specify term for disc 

  • Different disc method

  • Forbid inquiry into certain matters

  • Designate person to be present

  • Sealed deposition

  • Trade secret not revealed

  • File under seal

 

26(d) Timing and sequence of discovery 

 

1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. 

(2) Early Rule 34 Requests. 

Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: 

 

26(e) Supplementing Disclosures and Responses. 

some material respect the disclosure or response is incomplete or incorrect

 

26(f) Conference of the Parties; Planning for Discovery. 

Required except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B).   Must take place ASAP or 21 days after complaint filed and concern:

   1. Nature and basis for claims & defenses settle?

   2. 26a required disclosures 

   3. Preservation of information 

The Plan must be submitted to the court in 14 days.  It should cover these size ares:

  1. Changes for timing of disclosures 

  2. Discovery subjects and  when discovery is completed, and if it should be conducted in phases

  3. ESI preservation issues; and forms for ESI to be producedin 

  4. Clawback of privileged documents.

  5. Changes in limitations imposed by FRCP on discovery.

  6. Other court orders under 16(b), 16(c) or 26(c).

             

26(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

    Every discovery request, response or objection must be signed by an attorney to certify to its completeness and correctness; and:

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

 

NOTES

 

A party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.  Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case.

 

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

 

34(a) In  General - can request within scope of Rule 26(b) any documents or ESI —stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or any designated tangible things.

 

34(b) Procedure - must describe with reasonable particularity each item or category of items to be inspected; must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and may specify the form or forms in which electronically stored information is to be produced. 

Must respond within 30 days after being served.

 

34(b)(2)(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

 

Rule 45 Subpoena

Rule 45(a)(C) A subpoena may specify the form or forms in which electronically stored information is to be produced. 

 

Rule 45(c)(B)(2) A subpoena may command:(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and(B) inspection of premises at the premises to be inspected.

 

Rule 45(d)(3)(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated.

 

Rule 45(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information.

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

 

 

 

 

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