E-Discovery LIMITS ON E-DISCOVERY. No New Preservation Rule When does duty to preserve attach? Reasonably anticipated litigation. Audio sanctions.

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Presentation transcript:

E-Discovery LIMITS ON E-DISCOVERY

No New Preservation Rule When does duty to preserve attach? Reasonably anticipated litigation. Audio sanctions

Scope of Preservation Time period Issue

Litigation Hold Notice to key personnel IT consults Protocol for retrieving ESI Monitoring procedures to implement the hold

Reasonably Accessible

Undue Burden or Cost

ESI IS KEY TO WINNING LITIGATION ESI volume exceeds paper CD has 325,000 pages (125 banker boxes) 100,000 employees; so s per day is 1.5 billion annually META DATA track a documents existence ESI can be costly to review

Good Cause

Access to E-Data Test or Sample Form Produced Ordinarily Maintained Reasonably Usable Subpoena: Testing/Sample

ESI Agenda or Businesses Legal and IT must review and understand the ESI system and where data is stored. Legal and IT must track the retention and destruction of data under the company’s policy. Legal and IT must develop procedures for implementing a litigation hold. Legal and IT must review backup tape storage cycles.

ESI Agenda for Businesses (continued) Implement systems to prevent inadvertent disclosure of attorney-client and work product materials. Prepare a data/document map tracking the flow of data in, out and through the system

Chart of Litigation

Chart of Discovery

New E-Discovery Rules

Rule 26(f) Conference Early discussion of ESI Preservation Form of production Privilege and work product

Rule 16 Scheduling Order

Rule 34 Production of ESI Sample of ESI Form of production specified Produce as ordinarily kept or reasonably usable

Rule 45 Subpoena to Test or Sample ESI Specify form produced

Rule 37 Safe Harbor No sanctions for routine good faith ESI system

Rule 26(b) 45(d) Protects against inadvertent waiver Not reasonably accessible because of undue cost or burden