Section 29 of the American Bar Association Standards Relating to Electronic Discovery (August 2004) provides a definition of electronically stored information (ESI) as “any information created, stored, or best utilized with computer technology of any type.”
In August 2006, the Conference of Chief Justices (“CCJ”) approved “Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information.” The guidelines are intended to reduce the uncertainty in how state courts address production of electronic information in the discovery process. However, they are not binding on state courts, as each court may use them to address electronic discovery issues as it sees fit.
The guidelines are being distributed to state judicial educators and to state court judges, explained Richard Van Duizend, the CCJ reporter. “The guidelines will benefit all judges who are coming upon these issues for the first time,” he observed.
Although similar to the proposed amendments to the Federal Rules of Civil Procedure, which barring an act of Congress, are scheduled to take effect on December 1, 2006, the guidelines do contain some differences. The guidelines are summarized and discussed below, and the applicable differences are highlighted.
Responsibility of Counsel to be Informed About Client’s ESI
This guideline is consistent with the burgeoning case law that when it is appropriate and reasonable, counsel must become familiar with the operation of the client’s relevant information management systems, including how information is received, stored, and retrieved. The proposed changes to the Federal Rules require such knowledge in preparation for the initial disclosures and the early meeting of counsel. See Rules 26(a)(1) and 26(f).
Agreement by Counsel; Pre-Conference Orders
This guideline tells judges to encourage counsel to meet and confer in order to voluntarily come to agreement on electronic discovery issues. The judge is also instructed to direct counsel to exchange information that will expedite the discovery process. While acknowledging the list of information subject to discovery should be tailored to each case, the guidelines encourage the judge to consider the following: (1) list of persons most knowledgeable about the storage and retrieval of electronically stored information and a brief description of each person’s responsibilities; (2) list of most likely custodians (other than the party) of relevant data, including each custodian’s responsibilities, contact information, and description of the relevant data; (3) list of each electronic system that may contain relevant electronically stored information and each potentially relevant electronic system operating during the time periods relevant to the matters in dispute; (4) indication of whether relevant data may be of limited accessibility or duration of existence; (5) list of relevant data stored offsite or on offline systems; (6) description of efforts undertaken to preserve relevant data; (7) preferred form of production; and (8) notice of any reasonably anticipated problems that may arise in connection with disclosure or production compliance.
Initial Discovery Conference
This guideline encourages a hearing after the exchange of information in guideline 3 to discuss issues such as form of production, inaccessible data, inadvertent disclosure, preservation procedures, and allocation of costs.
Scope of Electronic Discovery
This guideline recommends that when a discovery request related to ESI is contested, judges should first determine whether the information is relevant. Once this question is answered, the guideline offers a list of 13 factors for judges to consider in balancing the benefits and burdens of requiring discovery.
Form of Production
This guideline is based in part on the proposed amendments to Federal Rules 34(b)(ii) and (iii) which permit production of ESI in either the format in which the information is ordinarily maintained or in a form that is reasonably usable. In the absence of an agreement among the parties, only one format should be selected.
The comments to this guideline also address native file production, noting that files produced in native format provide the metadata and are more easily stored, but they are difficult to search without the software needed to organize and present the information in a reasonably usable format. The guidelines reserve the question of whether metadata are discoverable for determination based on the particular circumstances of the case.
Reallocation of Discovery Costs
This guideline follows the three-tiered cost-shifting principles set forth in Zubulake III, including the factors judges should follow when determining whether cost-shifting is appropriate. The comments to this guideline indicate the proposed cost/benefit analysis will encourage requesting parties to carefully assess whether all the information sought is worth paying for while discouraging the producing party from storing the information in such a way as to make it extraordinarily costly to retrieve.
Inadvertent Disclosure of Privileged Information
This guideline addresses the fact that due to the sheer volume of electronic information produced by the parties, information considered privileged might be inadvertently produced during discovery. However, unlike the Federal Rules, this guideline sets forth five factors for a judge to determine whether a party has waived the attorney-client privilege: (1) the total volume of information produced by the responding party; (2) the amount of privileged information disclosed; (3) the reasonableness of the precautions taken to prevent inadvertent disclosure of privileged information; (4) the promptness of the actions taken to notify the receiving party; and (5) the reasonable expectations and agreements of counsel. The Federal Rules do not offer any substantive law on the doctrine of waiver, but rather provide a mechanism for the sequestration or return of inadvertently produced documents pending a judge’s determination of the substantive law.
This guideline sets forth the factors judges should consider when evaluating a motion for preservation of electronic evidence. The guideline states that preservation orders should be narrowly tailored, and should consider various factors, including: the threat to the existence and integrity of the information in question; the likelihood of irreparable harm to the requesting party absent a preservation order; the capability of the responding party to maintain the information sought in its original form; and the physical, technological, and financial burdens created if the court orders preservation of the information.
This guideline sets forth three factors for judges considering sanctions based on the destruction of electronically stored information. Absent exceptional circumstances, sanctions would be awarded only if: (1) a legal obligation to preserve existed at the time of data destruction; (2) the destruction was not part of a routine and good faith operation of an electronic information system; and (3) the destroyed information was subject to production in discovery. Click the hyperlink at the end of this message for a copy of the Conference of Chief Justices’ “Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information”.
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