E-Discovery, Rule 26(A)(1)(b), Preservation Letters

As a TechnoLawyer subscriber I receive weekly dispatches on a variety of topics including, of course, e-discovery – the 800 lb. gorilla of legal tech. Yesterday for instance I read a piece by Texas lawyer Blake Bailey regarding FRCP 26(A)(1)(B) that highlighted the duty of counsel in federal cases to

  • meet and confer
  • preserve electronically stored evidence (ESI)
  • automatically disclose categories of evidence including ESI

As stated in the committee comments to 26(A)(1)(b)2 and highlighted by the author, one responding to such a request must now identify by type or category

… sources containing potentially responsive information that it is not searching or producing and do so in sufficient detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information …

Good intentions notwithstanding however, many lawyers will continue to do business as usual when it comes to discovery; in fact even diligent practitioners lack experience with the new way of doing things and what passes for training is often little more than vendor self-promotion.

This is not to mention inevitable resistance from clients who will not want to open their virtual doors to anyone, much less do so and pay for it under Court order. Clients are already complaining loudly about the cost and complexity of discovery (much less e-discovery). To them litigation is too slow, too expensive, too time consuming, and unsatisfying in the end.

Had I written the piece though, I would have added another contingent to the list of e-discovery truants: the bench. Think about it: if experience has taught us anything it is that Judges rule with an iron fist, so it is common sense that they would not welcome the mind-numbing complexity and minutiae of e-discovery, or the possibility that such information may show them up to be somewhat behind the technological eight-ball themselves.

The article goes on to make a number of excellent points, and includes 2 solid lists of questions that should be asked of clients and opposing counsel as part of a coordinated effort to preserve ESI. I will close by quoting these excellent lists below. Happy (e)hunting.

Did you make a reasonable search for emails?

Did you conduct a good faith search in

1. Each employee’s computers, both desktop and laptop
2. The department and company server
3. The mirror server
4. Backup for the server
5. Computers of the recipients of the emails
6. Emails residing in active files
7. Emails stored with local providers
8. Network repositories
9. Remote servers
10. Copies to third-party systems
11. Removable media
12. Achieved email
13. Email stored in other formats?

Think of other electronically stored data and where it might be stored:

1. PowerPoint presentations
2. Cell phones
3. Blackberries
4. Voice-mail
5. Instant messaging
6. Databases
7. Word processing documents
8. Digital cameras
9. CD
10. DVD or other video storage
11. PDF files
12. Spread sheets

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