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Hedges-Electronic Discovery

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  1. No Judge Left Behind: A Report Card on the E-Discovery RulesApril 24, 2007Austin, TexasNational Workshop for U.S. Magistrate JudgesFederal Judicial Center

  2. Outline of presentation • What is happening out there? • Preservation issues related to Electronically Stored Information • Rule 26(f) and Rule 16(b) meet and confer “hotspots” • Rule 26(b)(2)(B) – what is this “two tier” discovery rule? • Sampling as a possible means to address volume and relevance • Privilege issues • Sanctions and Rule 37(f)

  3. What is happening out there? • Education • Due diligence • Confusion • Opportunism • Counsel • Vendors • Disputes • 30 reported decisions since 12/1/2006 • Carpenters – “We’ve Only Just Begun”* *Music by Roger Nichols; Lyrics by Paul Williams Released by The Carpenters in August 1970

  4. Two basic questions: • What can judges be expected to hear from the parties about e-discovery? • What will you be expected to do about it?

  5. Preservation • What really needs to be preserved? • How do you measure reasonable, good faith steps? • Does disaster recovery backup data need to be preserved? • Does ephemeral communication (email, IM, voicemail, etc) need to be preserved? • Does dynamic structured data (databases) need to be preserved? • Does metadata (data unique to native format) need to be preserved? • Related issues that typically come up later, if not anticipated and resolved at this stage: • Form of production • Adequacy of disclosure (e.g., was a sufficient data map disclosed at the outset) • Adequacy of litigation hold process (implicating privilege and work product issues)

  6. Rule 26(f) and Rule 16(b) Conferences • Among sophisticated parties in complex litigation, Rule 26(f) is evolving into a process-in-itself, with its own counsel and consultants. In appropriate cases, expect and encourage a series of Rule 26(f) conferences over time to resolve issues as they develop. • Big stakes cases bring the potential for big disputes to alter settlement valuation • No "one size fits all." Most cases do not need exhaustive treatment of e-discovery issues contemplated by the Maryland and Delaware protocols • Some counsel are opting out of e-discovery by stipulation or by "drive-by" Rule 26(f) conferences that resolve no issues. Questions to ask: • Do the parties AND counsel know what they are doing? • Is everyone speaking the same language when they agree not to engage in "e-discovery." They may think they are simply agreeing not to produce e-discovery in electronic form, or they may think they are agreeing not to conduct discovery beyond what is already available in paper form. • One judge asks that such stipulations limiting discovery to be signed by the parties.

  7. Rule 26(b)(2)(B) • “Not reasonable accessible because of undue burden or expense” • Preservation? • Access? • Review and production? • What is the connection to relevance? • What is the relationship with proportionality factors now found in 26(b)(2)(C)? • For cost shifting/sharing • What numbers will you see? • What numbers should be considered? • What about offers to pay?

  8. Sampling & Filtering • When is sampling appropriate and useful? • Who samples? • How do we judge the results of a sampling exercise? • When does sampling become too time-consuming and burdensome itself? • Can parties use keywords to filter? Other restrictions? • Is it appropriate to exclude file types from preservation and production?

  9. Privilege • 26(b)(5) Procedure • Native file dilemma – embedded privilege data that cannot be seen “on the surface” • Handing email threads or strings -- determining logistically what the email thread is, segregating the potentially privileged information, applying the appropriate "control group" circulation analysis, etc. No magic solution as of yet. • “Group” or “Batch” Privilege Logging – Can you do it? What does it look like? How do you rule on challenges? • Tendency on part of parties to request more in-camera review of disputed materials, and tendency on part of circuits to require judges to comply with requests. What now? • What is the current status of proposed FRE 502?

  10. Sanctions • No case yet that squarely addresses 37(f) and any difference with pre-December 1 sanctions law • "Good faith" analysis essentially the same • Emphasis is on prejudice to the requesting party -- the "absent exceptional circumstances" language of the Rule • Parties will likely brief this issue to death, attempting to link actions of counsel to the routine, good-faith operation of the responding party's electronic information system • Rule 37(f) does not affect the availability of sanctions for bad faith or grossly negligent actions of counsel in the general conduct of discovery, which was the basis of most of the pre-December 1 sanctions decisions.

  11. Resources • FJC Publications • Managing Discovery of Electronic Information: a Pocket Guide for Judges • The Sedona Conference • The Sedona Glossary • The Sedona Principles • The Sedona Guidelines • Local court rules and guidelines (e.g., Kansas, Delaware and Maryland) • ABA Civil Discovery Standards • Treatises and publications

  12. www.nixonpeabody.com