2006 represented a record number of changes in the area of practicing electronic discovery civil litigation. The adoption of numerous amendments to the FRCP Rules as well as common law opinions coming from the bench, it is no surprise that attorneys are recognizing that they will have to pay greater attention to the issue of electronically stored information (ESI) in their cases. In a recent study conducted by Kroll OnTrack, an analysis of the 2006 record breaking number of e-discovery opinions (over 175 cases), the study highlighted the major themes that were addressed:
. 35 percent addressed discovery requests and motions to compel
. 32 percent addressed spoliation/sanctions
. 13 percent addressed form of production
. 11 percent preservation/litigation hold
. 5 percent addressed privilege/waiver
. 4 percent addressed costs
One of the most profound developments the new FRCP Rules and State Court Guidelines now require both parties in a civil litigation (Rule 26(f) and Rule 16), to meet and confer in a pretrial session to discuss matters concerning electronically stored information. This means that even before the meet and confer session, a lawyer must perform the necessary due diligence in gathering a sufficient understanding of their client’s computer information systems, which includes a detailed overview of the client’s tape back-up systems, the document preservation policies, how the client’s e-mail hardware and software are set-up, and the identification of each computer and external media devices associated with custodians of interest, and a determination as to what ESI is readily accessible versus inaccessible.
This collection of information must then be disclosed to opposing counsel even before the issuance of any discovery requests. This means that a pretrial ESI assessment analysis has to be compiled and evaluated by the producing party’s attorney sooner than later.
The requesting party’s attorney should also considered being equally prepared when it comes to assessing their client’s ESI in anticipation of a retaliatory e-discovery “attack”. Even more importantly, is the increased challenge for requesting parties to anticipate that they will need to be fully prepared to conduct an in-depth inquiry/discussion about the responding party’s computer systems, back-up policies, document retention policies, e-mail systems, deleted ESI, existing external storage devices etc. Otherwise, in the absence of an informed inquiry, there remains a high probability that the responding party’s disclosure of such details is apt not to be a complete and accurate picture.
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