2. 1. Understand when and why the Amended Rules of Civil Procedure went into effect; 2. Understand the “gist” of the Amended Rules; 3. Understand the basic e-Discovery process and preservation obligations; 4. Understand how certain Amended Rules impact e-Discovery and e-Discovery disputes; and 5. Understand a few “best practices” for implementing the Amended Rules in connection with e-Discovery.

3. “In 1938, John Lyde Wilson, a former governor of South Carolina, published the "Code of Honor; or Rules for the Government of Principals and Seconds in Dueling…. Wilson's pamphlet is also a stark reminder of the government's responsibility to provide tribunals for the peaceful resolution of all manner of disputes. Our Nation's courts are today's guarantors of justice.” [H]e claimed that dueling was inevitable 'where there is no tribunal to do justice to an oppressed and deeply wronged individual'… -Chief Justice John Roberts- 2015 Year-End Report on the Federal Judiciary

4. Effective December 15, 2015, amended Rule 1 mandates that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” “The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The new passage highlights the point that lawyers—though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.” [highlights and italics added] What is the very first Rule of Civil Procedure? -Chief Justice John Roberts- 2015 Year-End Report on the Federal Judiciary

6. More transparency of preservation efforts – Parties should discuss preservation efforts early as part of a discovery plan (Rule 26) and is a proper subject for scheduling orders (Rule 34). Early due diligence regarding ESI is a MUST. An analytical framework for spoliation- E-discovery is not a “gotcha,” but if you acted with an “intent to deprive” the other party of ESI, draconian sanctions await. Focus on relevancy– Definition is “relevant to the claims or defenses and proportional to the needs of the case.” Subject-matter discovery and “reasonably calculated to lead to the discovery of admissible evidence” has been deleted. (Rule 26) Focus on proportionality- Discovery must be proportional to the needs of the case. (Rule 26) No more boilerplate discovery objections- Objections must be stated “with specificity,” and you must disclose if materials are withheld on the basis of an objection. Speed it up, folks – Shortened deadlines for serving defendant (Rule 4(m)), issuance of scheduling orders (Rule 16(b)(2)), and service of discovery (Rules 26(d)(2) and 34).

8.  E-discovery is not the same as computer forensics.  In general, proper e-discovery involves a process by which electronic data is located, preserved, and searched with the intent of using it as evidence in a trial.

10.  Who has a duty to preserve ESI?  Potential debtors, debtors, DIPs, creditors, and other parties-in-interest.  What is it, and does it apply in bankruptcy cases?  The obligation to preserve ESI (and other relevant documents) that may be relevant to claims or defenses. Yes, it applies in bankruptcies.  When does the duty arise in bankruptcy cases?  Upon reasonable anticipation of litigation, which could be prior to filing a petition, contested matter, adversary proceeding, or proof of claim.  How does an attorney and client fulfill the duty?  Ensure clients take reasonable, proportional steps to preserve books and records through a proper litigation hold.  Extends to representatives and affiliates, who should be properly notified.  Confer, communicate, and cooperate early.  Remember, the duty does not require preservation of all ESI. See, ABA Electronic Discovery (ESI) in Bankruptcy Working Group, Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases, The Business Lawyer, Vol 68, No. 4, pp 1113-1148 (August 2013)

11. Identify Sources of relevant ESI Discuss with IT staff (disable auto delete function) Issues and Parties Location Machines Custodians Issue Written Hold Notice Purpose Specific Issues Specific Custodians Types of ESI Suspend “auto- delete” Targeted distribution to custodians Require Written Acknowledgment Conduct Interviews with Key Custodians Periodic Follow-up with custodians Not too many Not too few Receipt Understanding In Writing Reconfirm Receipt and understanding Discuss types, location of relevant ESI Answer any questions

12. TIFF and Load Files Outlook (.PST) files PDFs of ESI Paper copies of ESI Forensic Acquisition 3 RD party ESI Software ESI in “native format”

13. Identify Relevant ESI Properly Acquire ESI Process & Cull ESI (De-dupe/De-NIST/ Index) Search ESI Review ESI Produce ESI Iterative Feedback Loop- Refine the keywords and search or better “seed” the TAR

14. Source: eDiscovery Institute, Judges’ Guide to Cost Effective E-Discovery End with 39GB of Data: Over a 92% Reduction Started with 500 GB of Data

15. Technology Assisted Review (TAR)

16. More Transparency of Preservation and ESI Search Efforts Focus on Proportionality as Analytical Tool Focus on Relevancy No more boilerplate discovery objections, “object first/produce later” games A clear analytical framework for spoliation to eliminate the fear of “gotchas” Faster and less costly trials

17. The Committee Notes contain many “words of wisdom,” examples, and expressions of the drafters’ intent, The Notes also explain how the rules have changed, which is particularly helpful with respect to Rule 26 and 37.

18. Dave Jennis (circa 1976) The 2015 amendments are really a “blast from the past.” They restored an emphasis on the proportionality factors that were provided by the 1983 provisions. It’s just a slight variation of an older theme, kind of like: FSU (modern day) Bell Bottoms (modern day)

19.  New standard for discoverable information  Discoverable if "relevant to any party's claim or defense" and "proportional to the needs of the case"  Still does not need to be admissible as evidence to be discoverable  No longer "reasonably calculated to lead to admissible evidence"

20.  Rule 26(b)(1) requires discovery to be proportional to the needs of the case  “considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”  Rule 26(f) - Meet and confer to discuss ESI issues  Determine if ESI is “not reasonably accessible”

21. Amount in Controversy Does Burden Outweigh Expense Relative Access to Info Importance of Discovery Parties’ Resources Public Policy Importance of Issues PROPORTIONALIT Y

22.  A party asserting that ESI is “not reasonably accessible,” and thus not subject to discovery under Rule 26(b)(1) absent a showing of good cause, has the burden of proving the undue burdens and costs of accessing it.  BUT – some cases involve "information asymmetry," where one party has little discoverable information and the other party has vast amounts of information, some of which can be easily retrieved and some that is more difficult to retrieve. These circumstances often result in the burden of responding to the discovery shifting to the party with more information. See Rule 26 Advisory Committee Note.  May require additional discovery to determine “accessibility of ESI” and assess proportionality (sometimes called “discovery about discovery”)

23. (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.  See Rule 26(b)(2)(B) Advisory Committee Notes to 2006 Amendments

24. Has the party opposing production demonstrated that the ESI is “not reasonably accessible” due to undue burden or undue cost? Has the party seeking production nevertheless demonstrated good cause for production in light of proportionality factors? Is cost sharing appropriate under the circumstances? Many court apply the seven Zubulake factors. Produce the ESI NO YES No Production NO

25. 7-FACTOR TEST FROM ZUBULAKE: 1. THE EXTENT TO WHICH THE REQUEST IS SPECIFICALLY TAILORED TO DISCOVER RELEVANT INFORMATION; 2. THE AVAILABILITY OF SUCH INFORMATION FROM OTHER SOURCES; 3. THE TOTAL COST OF PRODUCTION, COMPARED TO THE AMOUNT IN CONTROVERSY; 4. THE TOTAL COST OF PRODUCTION, COMPARED TO THE RESOURCES AVAILABLE TO EACH PARTY; 5. THE RELATIVE ABILITY OF EACH PARTY TO CONTROL COSTS AND ITS INCENTIVE TO DO SO; 6. THE IMPORTANCE OF THE ISSUES AT STAKE IN THE LITIGATION; AND 7. THE RELATIVE BENEFITS TO THE PARTIES OF OBTAINING THE INFORMATION. 217 F.R.D. 309 (SDNY 2003) AND 216 F.R.D. 280 (SDNY 2003) (SCHEINDLIN, J.)

26.  The Risk: Given the volume of ESI, the possibility of disclosing privileged information is higher than with traditional discovery.  The Solution: A “Clawback” Agreement and Order  Contemplated by Rule 26(b)(5)(B)  Fed. R. Evid. 502(d) and (e): no waiver, no required showing of reasonable steps to protect privilege. Court order required to be enforceable.  Practice Pointer- Note the difference between 502(b) (inadvertent disclosure) and 502(d) (controlling effect of court order). Negotiate a “claw back” agreement and request a “clawback order” early in the case, before exchanging ESI.

27.  No more “object first, produce later.”  No more “boilerplate” / “kitchen sink” objections.  Objections must specify (1) grounds for objection, (2) whether documents being withheld on basis of that objection, and (3) a time for completing production.  Production must be made for any portion of an RFP to which there has not been a specific objection.  NOTE: Committee notes state that it is acceptable to specify the ESI search parameters as a means of describing the documents that are being withheld from production on the basis of an objection.

28.  THE “DEFAULT” IS PRODUCTION OF ESI AS IT IS “KEPT IN THE USUAL COURSE OF BUSINESS,” OR ORGANIZED AND LABELED TO CORRESPOND TO THE REQUEST  “THE REQUEST MAY SPECIFY THE FORM…IN WHICH ELECTRONICALLY STORED INFORMATION IS TO BE PRODUCED”  IF THE REQUESTING PARTY DOES NOT SPECIFY A PRODUCTION FORMAT, ABSENT AGREEMENT OR COURT ORDER, THE “DEFAULT” IS THAT THE RESPONDENT MUST PRODUCE ESI IN A FORM IN WHICH IT IS ORDINARILY MAINTAINED, OR IN A REASONABLY USABLE FORM (E.G- ELECTRONICALLY SEARCHABLE)  THE RESPONDING PARTY MAY OBJECT TO THE FORM REQUESTED

29.  PROPOSES THAT PRODUCTION OF E-INFORMATION ORDINARILY SHOULD BE IN ONE COMMONLY ACCEPTED FORMAT  THE FORM OF PRODUCTION SHOULD ALLOW VERIFICATION OF AUTHENTICITY AND GENUINENESS  REQUESTING PARTY SHOULD IDENTIFY THE DESIRED FORMAT, TO WHICH THE RESPONDING PARTY MAY OBJECT  SUBSEQUENT PRODUCTION IN A DIFFERENT FORMAT WOULD BE AT THE COST OF THE REQUESTING PARTY

30.  ESI IS NOT PRODUCED IN A “NATIVE,” “USABLE,” OR “ORDINARILY MAINTAINED” FORMAT  PRINTED E-MAILS (METADATA, ATTACHMENTS, CHAINS?)  PDFs OF EMAILS AND DOCUMENTS ON A CD OR THUMB-DRIVE  FORWARDING RESPONSIVE ESI VIA EMAIL TO REQUESTING PARTY The analysis: Look to proportionality

31. Amount in Controversy Does Burden Outweigh Expense Relative Access to Info Importance of Discovery Parties’ Resources Public Policy Importance of Issues PROPORTIONALIT Y

32. RESPONSES TO PRODUCTION REQUESTS SHOULD CONTAIN: 1. IDENTIFICATION OF RESPONSIVE DOCUMENTS 2. SPECIFIC OBJECTIONS 3. WHETHER MATERIALS ARE BEING WITHHELD ON THE BASIS OF THE OBJECTION, AND/OR AN INDICATION OF HOW SEARCH FOR RELEVANT ESI WAS LIMITED 4. THE “REASONABLE TIME” FOR COMPLETING PRODUCTION, IF LATER THAN THE TIME FOR INSPECTION SPECIFIED IN THE REQUEST 5. MUST STATE THAT COPIES OR DOCUMENTS WILL BE PRODUCED, NOT ENOUGH TO MAKE THEM AVAILABLE FOR INSPECTION

33.  DOES NOT CREATE A NEW DUTY TO PRESERVE  NO SANCTIONS FOR FAILURE TO PROVIDE ESI LOST AS A RESULT OF THE ROUTINE, GOOD FAITH OPERATION OF THE SYSTEM  ALSO DOES NOT APPLY TO INFORMATION LOST BEFORE A DUTY TO PRESERVE ARISES  NEW RULE PROVIDES SPECIFIC SANCTIONS FOR SITUATIONS WHERE PARTY INTENTIONALLY DEPRIVED ANOTHER OF THE INFORMATION

34. Should ESI have been preserved in anticipation or conduct of litigation (the “trigger”)? Lost BECAUSE a party failed to take reasonable steps to preserve it? Lost ESI cannot be restored or replaced through additional discovery? Is there prejudice to other party due to loss of ESI? Court may order measures no greater than necessary to cure prejudice Make adverse presumption Instruct Jury to make adverse presumption Dismiss action or enter judgment “Intent to Deprive?”

35.  Rule 45 – Basically applies ESI discovery rules to third parties.  While Rule 45 itself was not amended in 2015, the proportionality factors, the factors showing "good cause" to obtain "not reasonably accessible" ESI, and cost shifting analysis under the Zubulake factors are equally applicable to third parties as a result of the cross- reference to Rule 26(b)(2)(c) in Rule 45(e)(1)(D).  Although Rule 45 has no equivalent to the Rule 26(f) conference process, communicate and cooperate with nonparty respondents and to discuss the scope of the subpoena, the form in which ESI will be produced, protection against waiver for privileged and protected information, and the allocation of discovery costs.

36.  Proportionality fights (Is the juice worth the squeeze?)  Costs too much/cost shifting.  We can’t find it (Not “reasonably accessible”)  Spoliation & sanctions

37.  Ensure proper preservation by clients upon a “trigger”  Involve e-discovery specialists early in the case  Communicate, collaborate, and cooperate with opposing counsel early regarding preservation protocol  Don’t forget to invoke Rule 502(d) - the claw back provision to address potential privilege disclosures  Confer with your opposing counsel early regarding e-discovery protocols to be used (See Rule 26(f) checklist  Ask for court intervention (if needed). The court may appoint third party e- discovery expert if parties cannot agree on using one expert for the entire case  Agree to mediate e-discovery disputes to limit judicial intervention

39. HELPFUL RESOURCES United States District Court Northern District of California CHECKLIST FOR RULE 26(f) MEET AND CONFER REGARDING ELECTRONICALLY STORED INFORMATION http://www.cand.uscourts.gov/eDiscoveryGuidelines

40. HELPFUL RESOURCES  Google it!  Read it!  Implement it!

41.  Is ESI even an issue? Not in every case.  File a “First Day Motion” for ESI preservation and e-Discovery protocols?  Jointly develop agreed litigation hold and preservation protocols.  Agree early to “claw-back” and stipulated order for inadvertent production of privileged ESI (Fed.R.Evid. 502)  Fully consider issues on Rule 26 ESI checklist.  Consider use of joint e-discovery consultant and/or agree to a non-judicial ESI dispute resolution mechanism.  Consider proportionally and phased e-discovery acquisitions.  Joint development of search protocols and keywords.  Be prepared to discuss ESI issues at Rule 16 Conference with Court.

42. I HATE CHAD