E-Discovery (ESI) – must be produced…
Ed. Note: The following is a summary of a post published in TechnoLawyer by trial attorney and legal technologist Bruce A. Olson of Davis & Kuelthau, S.C.
Read the rules, the 2006 amendments, and the committee notes. The author suggests that the Advisory Committee Notes may be as important as the rules and amendments themselves.
The new rules apply to parties as well as nonparties. Subpoenaed non-parties must still produce electronically stored information (ESI). See e.g. 45 (a)(1)(C) – a subpoena recipient has 14 days from the time of receipt to object in writing, at which point the burden shifts to the requesting party to compel production.
ESI is no longer debatable – it must be produced. See e.g. 26(a)(1)(B), which now applies to “electronically stored information” instead of the more ambiguous “data compilations” (introduced in 1970). ESI is now an explicit category in Rule 34 regarding production requests as well.
ESI must be identified or produced in initial Rule 26 disclosures. See e.g. 26(a)(1)(B). New rules require production of a copy or description of all “documents, electronically stored information, and tangible things” the disclosing party may use, subject to the limitations in (b)(2)(C).
The “meet and confer” requirements now include preservation and production of ESI. See e.g. Rules 26(f) and 16, as well as Form 35. It is recommended firms consult with e-discovery vendors or computer forensic experts and make them part of the litigation IT team.
Rule 34(a) permits sampling by parties; Rule 45(a) does the same as to 3rd-parties. Sampling of ESI permits phased-in production so a smaller amount of information can be used to gauge the usefulness of a potentially larger amount. The result is cost savings all around.
Requesting party should specify format in which it wants production to be made. Of course even if it does not, the responding party must still produce information in the form in which it is maintained or one that is reasonably usable. But remember, failure to request information in its original (“native”) format may result in loss of critical metadata elements that can be as important or even more important than the files themselves. See e.g. Rule 34(b).
No obligation to produce information under Rule 26 that is not reasonably accessible. See Rule 26(b)(2)(B), (C). The author points out that under the amended Rules active data is regarded as “accessible” while backup media are not. The requesting party can also bear the cost of having “inaccessible” (hence more expensive) files produced (analogous to the role of Rule 45(d)(1)(D) as it applies to 3rd parties).
So-called clawback and quick peek agreements are recognized in Rule 26(b)(5). That is, the amended Rules recognize the reality that inadvertent disclosure is more likely given the slew of information to be produced electronically (volumes more than was possible before).
One of the greatest dangers in dealing with ESI is inadvertent spoliation – merely searching can in some circumstances alter the very information sought. Rule 37(f) provides a “safe harbor” — absent exceptional circumstances, a court may not impose sanctions for failure to provide or disclose ESI lost due to routine, good faith operations (provided such operations do not routinely destroy evidence).