ensuring your e-discovery procedures comply with the new rules

© Copyright 2007. All rights reserved.

Ensuring Your E-Discovery Procedures Comply With

The New Rules

Presented byRonald L. Hicks, Jr.


Discussion Topics

1. Preservation Notices 1. Preservation Notices

2. Meet and Confer 2. Meet and Confer

3. Discovery Strategy 3. Discovery Strategy

4. Protective Orders 4. Protective Orders

5. Structuring Protocols 5. Structuring Protocols

6. Experts 6. Experts


General Information

“The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines” published by the ABA LPM Sect.(http://www.abanet.org/abastore)

LexisNexis® Applied Discovery® (http://www.lexisnexis.com/applieddiscovery/)


Discussion Topics

1. Preservation Notices 1. Preservation Notices

No U.S. or Third Circuit decision exists re: preservation of electronic evidence or sanctions for failure.

Zubulake decisions are recognized as setting the benchmark standards.

Zubulake decisions have not been adopted by any PA federal or state court.


Preservation Notices

Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

Sanction determined on a “case-by-case” basis

Authority to sanction arises under the FRCP and inherent powers.



Duty to preserve arises when a party has notice or should have known that evidence may be relevant to litigation.

Sanctions exist only if a party has a duty to preserve the destroyed evidence.



Duty to preserve commonly arises when a demand letter or complaint is served.

Duty to preserve may arise earlier if a party has sufficient notice or information re: a credible threat of future litigation.

Duty to preserve requires more than a mere possibility of litigation.

Existence of duty to preserve determined by the facts of each case.



Duty to preserve extends only to “key players” in the litigation.

Not every piece of evidence must be preserved; only that which is relevant.



Zubulake holds that once litigation is reasonably anticipated, a party must suspend routine document destruction and put in place a “litigation hold” to ensure the preservation of relevant evidence.

Inaccessible back-up tapes do not need to be subject to the “litigation hold.”

Accessible back-up tapes should be placed in the “litigation hold.”



Zubulake creates a duty upon both the party and its counsel to ensure that all sources of potentially relevant information are identified and placed “on hold.”

Zubulake creates a duty upon counsel to oversee and monitor a party’s compliance with “litigation hold.”

Proper communication is the key.



Zubulake establishes guidelines that counsel should follow to avoid sanctions for electronic evidence spoliation.

The Zubulake guidelines are not meant to be onerous.

Zubulake holds that counsel’s actions in avoiding evidence spoliation are judged by a reasonableness standard.



Use the form documents cautiously; avoid creating duties that you may not have as counsel under PA law.

Forms documents should be tailored to your particular case.


Discussion Topics

Rationale behind “meet and confer” requirement is early discussion and counsel involvement helps to avoid evidence spoliation.

F.R.C.P. 26(f)(3) & 16(b)(5) set forth the “meet and confer” requirement.

2. Meet and Confer 2. Meet and Confer


Meet and Confer

The “meet and confer” conference requires you to think about what the relevant sources of evidence will be in your case.

Every case has different issues that should be addressed at the “meet and confer” conference.


Discussion Topics

Three most common methods are interrogatories, document requests and depositions.

Using more than one of these three methods is common when performing e-discovery.

3. Discovery Strategy 3. Discovery Strategy


Discovery Strategies

Interrogatories should be used to identify systems, information and people with knowledge

Absent agreement or court order, F.R.C.P. 33(a) limits the # of interrogatories to 25, including subparts.



Unlike interrogatories, document requests are not subject to an express numerical limitation; they are subject to Rule 26 admonition re: abusive discovery.

Document requests directed to a party can be done independently or as part of a deposition notice.

Document requests can be directed to non-parties by way of a subpoena.



Consult with an e-discovery vendor or computer forensics expert.

Electronically stored data should be produced in its native format with metadata.



Depositions ordinarily are used to verify that you have gathered all the relevant evidence through interrogatories and document requests.

Depositions also enable a party to prepare any necessary e-discovery-related motions, including motions in limine and sanctions for spoliation of evidence.

Using an e-discovery expert may be prudent.


Discussion Topics

Protective orders are appropriate to combat overly broad or burdensome e-discovery requests.

Need for a protective order and the grounds relating to that need are always case specific.

4. Protective Orders 4. Protective Orders


Discussion Topics

To prepare a well-structured e-discovery protocol, you must understand in advance what the quantity and variety of data that your client has so that you can talk to the correct “key players.”

Understanding what your client’s business operations are will enable you to advocate for an e-discovery protocol that is not overly burdensome.

5. Structuring Protocols 5. Structuring Protocols


Structuring Protocols

Key Issues to Address in an E-Discovery Protocol:

1. Confidentiality Protection2. Screening for Privilege3. Data Acquisition/Preservation Procedure4. Costs – Who Pays What?5. Data Return/Destruction


Discussion Topics

Selecting the proper third-party is critical for the proper and efficient handling of electronic evidence.

Selecting the proper third party requires an understanding on your part as to what the needs are vis-à-vis electronic evidence: e-discovery v. computer forensics

6. Experts 6. Experts


Experts

Confid.

Certifications

Qualif. & Ref.

FeesEvidence

Experts

Other Issues To Consider

Support


Experts

Look for the Truth, Not the Smoking Gun.

Be Fiscally Prudent, Not Cheap.


Questions & Answers


Ensuring Your E-Discovery Procedures Comply With

The New Rules

Presented byRonald L. Hicks, Jr.

ensuring your e-discovery procedures comply with the new rules

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