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E-Discovery LIMITS ON E-DISCOVERY
No New Preservation Rule • When does duty to preserve attach? • Reasonably anticipated litigation. • Audio sanctions
Scope ofPreservation • Time period • Issue
Litigation Hold • Notice to key personnel • IT consults • Protocol for retrieving ESI • Monitoring procedures to implement the hold
ESI IS KEY TOWINNING LITIGATION • ESI volume exceeds paper • CD has 325,000 pages (125 banker boxes) • 100,000 employees; so emails per day is 1.5 billion annually • META DATA track a documents existence • ESI can be costly to review
Access to E-Data • Test or Sample • Form Produced • Ordinarily Maintained • Reasonably Usable • Subpoena: Testing/Sample
ESI Agenda or Businesses • Legal and IT must review and understand the ESI system and where data is stored. • Legal and IT must track the retention and destruction of data under the company’s policy. • Legal and IT must develop procedures for implementing a litigation hold. • Legal and IT must review backup tape storage cycles.
ESI Agenda for Businesses(continued) • Implement systems to prevent inadvertent disclosure of attorney-client and work product materials. • Prepare a data/document map tracking the flow of data in, out and through the system
Rule 26(f) Conference • Early discussion of ESI • Preservation • Form of production • Privilege and work product
Rule 34 Production of ESI • Sample of ESI • Form of production specified • Produce as ordinarily kept or reasonably usable
Rule 45 Subpoenato Test or Sample ESI • Specify form produced
Rule 37 Safe Harbor • No sanctions for routine good faith ESI system
Rule 26(b) 45(d) • Protects against inadvertent waiver • Not reasonably accessible because of undue cost or burden