E-Discovery New Rules of Civil Procedure Presented by Lucy Isaki January 23, 2007

Janaury 23, Federal Rules of Civil Procedure Rules 16(b), 26(f), and Form 35: Handling e-discovery concerns Rule 16(b), Rule 26(f), and Form 35 direct counsel to discuss early on how to handle e-discovery issues, including decisions relating to privilege claims. The latest draft also requires counsel to address protection claims for trial- preparation materials.

Janaury 23, Rule 33(d): Interrogatories to Parties Under the new version of Rule 33, the responding party is allowed to produce electronic data when responding to interrogatories. If direct access to the responding party’s system is the only option a requesting party has for locating and identifying the information, the responding party may choose to derive or ascertain the answer itself. Federal Rules of Civil Procedure

Janaury 23, Rule 34(a):Defining Electronically Stored Information  In addition to clarifying that electronically stored information is subject to production and discovery, the new Rule 34(a) establishes the requesting party’s right to test and sample electronic data.  Under this Rule, however, routine and direct access to the opposing party’s system is not guaranteed, although such access might be appropriate in some circumstances. Federal Rules of Civil Procedure

Janaury 23, Rule 34(b): Production Format  Allows the requesting party to specify production format for electronic documents (i.e., native format, tiff or in an online repository).  When the production format is not specified or if the responding party objects to the requested format, the responding party must state its preferred production format.  The default production format may be either a form (or forms) in which the information is “ordinarily maintained” or in a “reasonably usable” form. Federal Rules of Civil Procedure

Janaury 23, Rule 26(b)(2)(B):Production of Reasonably Accessible Information  Mandates that a party does not have to produce electronic information that is “not reasonably accessible.”  The Committees amended the Rule to include a test for reasonable accessibility based on the “undue burden or cost” of producing the information. Federal Rules of Civil Procedure

Janaury 23, Rule 26(b)(5)(B):Inadvertent Production of Privileged Information  Addresses inadvertent production of privileged or trial- preparation information. Under the revised Rule, the receiving party may not use the data until the waiver claim has been resolved.  If the information was disclosed before the receiving party was notified, the receiving party must take reasonable steps to retrieve it. Federal Rules of Civil Procedure

Janaury 23, Rule 37(f): Routine, Good-faith Sanctions Test  The 2004 draft gave parties reprieve from judicial sanctions for failing to produce electronically stored information in cases where the information was destroyed during routine operations and where the parties took reasonable steps to preserve the information.  The 2005 revised version modified this standard to apply to information lost as a result of the “routine, good-faith operation of an electronic information system.” Under the new revision, even if parties act in good-faith, sanctions may still be permitted in “exceptional circumstances.” Federal Rules of Civil Procedure

Janaury 23, Every Agency Needs an Inventory and Plan for: Identification Preservation Collection Restoration Filtering Processing Reviewing Production

Janaury 23, Preservation IT Inventory Centralized vs. de-centralized architecture How and where are documents stored? How do systems work – ? Janitorial programs? Backup Tapes

Janaury 23, Identifying Document Locations Home Systems Laptop, Desktop Office systems Laptop, Desktop, Server File Servers Personal Drive Shared Drives Intranet Sites Sharepoint Sites PDAs Hard Drives Storage Media Databases Archives Voice mail systems Archives Back Up tapes & Other Disaster Recovery Systems Legacy Systems

Janaury 23, Preservation Records Retention Policy Understand the policies that affect your agency Legal Hold: retention in the face of anticipated litigation Identify Locations of Relevant Information Written Notice to Preserve Information