effective e-discovery takes common sense

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With seven months having passed since the adoption of the Federal Rules Civil Procedure amendments concerning electronically stored information (ESI) discovery and production a number of new court rulings are coming down at a steadier pace.  Surprisingly, some of these recent rulings appear to be addressing some of the very issues that the new FRCP Rules were intended alleviate.  Such is the case with a recent discovery dispute that required the court to weigh in on a series of motions filed by the plaintiff that clearly demonstrate poor planning and ineffective communications and negotiations between opposing parties.

In Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007), the plaintiff submitted a request for the court to enter a discovery order to ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the FRCP.  In addition, the plaintiff also was seeking to compel the re-production of ESI previously produced by defendant in hard copy form to now be delivered in electronic form along with all metadata.  Further, the plaintiff also sought to compel the production of deleted documents by the defendant.

The plaintiff cited the FRCP Rule 34 after the production of 6,400 hard copy documents, which encourages both parties to discuss the form(s) in which the producing party will provide responsive ESI in a meet-and-confer session.  The court was able to determine that the plaintiffs original discovery request was absent of any specification of a preferred form (i.e. electronic native format) but more importantly, neither party participated in a pretrial meet-and-confer session to go over the issues relating to production of relevant ESI in the first place.

The plaintiff also sought the production of certain deleted documents which the defendant objected to on the basis that the requested documents were either non-existent or not reasonably accessible to the defendant.  Again, in the absence of a convincing argument waged by the plaintiff, the court stated that the plaintiff had failed to establish that the deleted information being requested fell within the scope of discoverable information.  The court had to advise that if the defendant took the position that the information would not be retrievable without undue burden, plaintiff would then have the opportunity, and the burden, to establish by expert evidence that a forensic search of defendants systems was reasonably likely to result in the recovery of relevant, deleted information.  In the end, the court ordered the parties to meet-and-confer on this issue as well and denied the plaintiffs motion without prejudice.

Prior to the newly adopted FRCP Rules, opposing parties rarely took advantage of the meet-and-confer session to weigh through the numerous, complex issues of electronic discovery and production.  Rule 16 (b) and Rule 26 (f) now require both parties to sit down and discuss all of the issues that pertain to the production of ESI.  Otherwise, the court will pass its own rulings on these complex issues.

Had common sense prevailed insofar as the plaintiff is concerned in this case, one would assume that if the preferred form of production had to be native format in order to review all metadata, that the plaintiff would have stipulated same in the initial discovery requests.   If deleted information was critical in supporting the plaintiffs claim in the first place doesnt it seem logical that the plaintiff would have to develop a convincing argument to establish the importance and relevance in recovering certain deleted data?  In the absence of such an argument, is it any wonder why the court was left with no option but to deny this motion as well?

The new FRCP Rules are guidelines to follow in the pursuit of relevant ESI discovery and production.  They are not mandates that either party can use as a substitute for straightforward dialog about electronic discovery.  Even before the meet-and-confer session, lawyers must invest the necessary time to adequately assess the predictable hurdles to be overcome in order to develop a strategy that will work at achieving a successful outcome. 

CyberControls is uniquely qualified at providing effective advice when it comes to strategies and tactics pertaining to electronic discovery, computer forensics, and ESI preservation and production procedures.  

For a copy of the full Scott decision as well as the new FRCP Rules, please follow the hyperlinks at the bottom of this message.

We welcome the opportunity to discuss any specific issues that you may be facing as a respondent or requesting party in a commercial litigation matter at 847-756-4890 or visit our cyber site at www.cybercontrols.net

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