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The Recorder not long ago sponsored a Roundtable discussion that focused on the ins and outs of electronic discovery. Toward the end of the discussion, Recorder Editor in Chief Scott Graham, who moderated the Roundtable, asked each of the participants to sum up their best advice when it comes to dealing with litigation that involves large amounts of e-discovery. The following are edited excerpts from the responses provided by the Roundtable participants: James Finberg (partner, Lieff Cabraser Heimann & Bernstein): One of the rules that needs to be discussed up front is the form in which electronic information will be produced. The rules say that if the request does not specify, a defendant doesn’t have to produce that information in multiple forms. This is a warning to plaintiffs’ lawyers. You don’t just want to get a PDF version of a document that you can’t search. Instead, you need to get this information in searchable form. That’s part of the discussion with the defendant. You don’t want to arbitrarily increase the burden on them but at the same time you need to get something that’s useful. Ask for the data in a usable form. Ask that it to be preserved up front. Negotiate a preservation order at the outset of the case. Consult with an expert about how to retrieve data. I used to think that if you hit the delete button on a computer then all that data disappeared forever.
Play NiceThe Sedona Conference Working Group consulted with in-house counsel, outside attorneys and judges before settling on 14 principles for electronic discovery. Here are the proposed guidelines, in their entirety:1. Electronic data and documents are potentially discoverable under Sec. 34 of the Federal Rules of Civil Procedure or its state law equivalents. Organizations must properly preserve electronic data and documents that can reasonably be anticipated to be relevant to litigation.2. When balancing the cost, burden and need for electronic data and documents, courts and parties should apply the balancing standard embodied in Sec. 26(b)(2) of the Federal Rules of Civil Procedure and its state law equivalents, which require considering the technological feasibility and realistic costs of preserving, retrieving, producing and reviewing electronic data, as well as the nature of the litigation and the amount in controversy.3. Parties should confer early in discovery regarding the preservation and production of electronic data and documents when these matters are at issue in the litigation. They should seek agreement on the scope of each party’s rights and responsibilities.4. Discovery requests should make as clear as possible what electronic documents and data are being asked for. Responses and objections to discovery should disclose the scope and limits of what is being produced.5. The obligation to preserve electronic data and documents requires reasonable and good-faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.6. Responding parties are best situated to evaluate the procedures, methodologies and technologies appropriate for preserving and producing their own electronic data and documents.7. The requesting party has the burden in a motion to compel to show that the responding party’s steps to preserve and produce relevant electronic data and documents were inadequate.8. The primary source of electronic data and documents for production should be active data and information purposely stored in a manner that anticipates future business use and permits efficient searching and retrieval. Requests for disaster recovery backup tapes and other sources of data and documents requires the requesting party to demonstrate need and relevance that outweigh the cost, burden and disruption of retrieving and processing the data from such sources.9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review or produce deleted, shadowed, fragmented or residual data or documents.10. A responding party should follow reasonable procedures to protect privileges and objections to production of electronic data and documents.11. A responding party may satisfy its good-faith obligation to preserve and produce potentially responsive electronic data and documents by using electronic tools and processes such as data sampling, searching or the use of selection criteria to identify data most likely to contain responsive information.12. Unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata in the absence of an agreement among the parties or a court order.13. Absent a specific objection, agreement of the parties or court order, the reasonable costs of retrieving and reviewing electronic information for production should be borne by the responding party unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the data or formatting of the information that is being sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information should be shifted to the requesting party.14. Sanctions, including spoliation findings, should only be considered by the court if, upon a showing of a clear duty to preserve, the court finds that there was an intentional or reckless failure to preserve and produce relevant electronic data and that there is a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.� Reprinted courtesy of The Sedona Conference

But that’s not true. That deleted e-mail can be found. They can find the various drafts of a contract to see how it changes over time. You need to talk to somebody about how to do that. Take the 30(b)(6) deposition early on so that you know what all the facts are and know what the requirements are under all applicable regulations. Make sure you know what the other side should have included and see if they did, in fact, keep everything. James Larson (chief U.S. magistrate judge, U.S. District Court for the Northern District of California): Federal judges and magistrate judges are going to be looking for an effort by counsel to cooperate in working out a discovery strategy at the outset of the case. It’s important to meet and confer early and often with respect to discovery issues that you think are going to come up. If it’s a complex litigation that’s going to go on for several years, you might want to think about asking the judge to whom the case is assigned to refer out all the discovery to a particular magistrate judge for management. You should then arrange a meeting with that magistrate judge or with the judge to whom the case is assigned and tell them what you anticipate coming up in terms of discovery and try to work out a strategy that the court will be involved in. Otherwise you’ll get stuck filing motions to compel after you’ve been waiting for months and months to get production, which turns out not to be complete. The judge to whom the motion is addressed will say, “Well, what do you expect me to do? I don’t know anything about what you’re plan is. You need to go across the hall and sit down and see if you can work this out yourselves.” Obviously the assumption here is that discovery is a tool, not a weapon. The judges are going to be really sensitive to manipulation of the rules or hiding the ball, that sort of thing. That is what’s going to get you the big sanctions. Most judges, at least in our district, are not anxious to sanction parties or attorneys. A lot of judges take a dim view of what attorneys do and don’t trust them, but I think they’re relatively slow to issue sanctions, particularly on a magnitude that we’ve seen in the Morgan Stanley and Zubulake cases. You can avoid that by cooperating with opposing counsel and trying to work out your own problems as best as you can. When you get to a point where you can’t resolve something, then come to court and be as specific as you can about what you’ve done and what you need or how much it’s going to cost and why you don’t think you ought to be required to do it at all or bear the cost of it. Jerone English (partner, Pillsbury Winthrop Shaw Pittman): In order to do those things, you need to make an early assessment of your case very quickly. You need to try to gain an understanding of whether or not this is a case that is going to involve e-discovery and, if so, to what extent. If you do not know, you need to bring in people who can help you with that. That’s the problem I think we have in many instances when it comes to these cases. These matters get assigned to people who did not know or understand the scope and breadth of the electronic documents or information that had to be produced. Unfortunately, as a result, they get well into these matters before they realize they have a problem. What these cases [such as Morgan Stanley and Zubulake] are telling us, and what the federal rules are going to start to require, is that we’re going to have to start doing a very early assessment on our cases to see whether or not e-discovery is implicated and what’s necessary in order to produce and preserve the materials. The Zubulake case essentially says that it is the responsibility of both inside counsel and outside counsel to know this information and provide it accurately to the court. Mia Mazza (partner, Morrison & Foerster): The way that our clients can keep the costs down � the cost of outside counsel having to come in and learn all about their system and talk with them about what needs to be preserved � is to make things easier for us by having a document retention and destruction plan in place. Make sure that it is robust and up to date, and have a plan for what’s going to happen when litigation is reasonably anticipated or reasonably foreseeable. Make sure that a company is going ahead and executing the plan even before the litigation is filed. So that when outside counsel comes into a case, whether it’s before or after the litigation is filed, we can run with the ball after the in-house counsel has already started the ball rolling. Provide us with a memo that summarizes how your computer systems work. That can help us get up to speed very quickly and keep the costs down. The other point to consider is that there’s much less use of discovery as a weapon of mass destruction when you have a case that involves a dispute between two companies. In those kinds of cases, it’s often easier for counsel to sit down and negotiate a discovery agreement because both sides are having to deal with it. Discovery abuse can arise in cases where you have [an individual plaintiff], for example, who doesn’t have to do a whole lot. But when we do sit down and have those discussions, it becomes a two-way street, and that person or that company or whomever the plaintiff may be also needs to take steps to preserve documents. We shouldn’t forget that they have an obligation as well. It’s not just the defendant.

E-Discovery, by the Numbers Corporate Counsel magazine (which is affiliated with The Recorder ) recently rounded up 10 key figures involving e-discovery that are keeping in-house attorneys up at night: 4.6 billion � The amount in dollars that U.S. companies will spend internally in 2005 to analyze e-mails. 50-100 � The percentage of all discoverable evidence that now comes in the form of e-mail. 25-30 million � The number of outside e-mails that Microsoft Corp. receives each day. 59 � The percentage of companies that, according to a recent survey, did not have e-mail retention policies. 125 � The number of ongoing legal matters in a typical Fortune 500 company, with at least 75 percent of them requiring e-discovery. 1.2 billion � The amount in dollars that U.S. firms will spend on outside e-discovery services in 2005. The amount is projected to rise to $1.9 billion in 2006. 62 � The percentage of surveyed companies that doubt they can show their electronic records are accurate and reliable. 10 � The percentage of corporate lawyers reporting that their companies settled a case rather than incur the cost of e-discovery. 150-200 � The number of backup tapes at Microsoft being recycled every two weeks. The company says it would cost $1.7 million per year to save the tapes. 18 � The number of months in prison given to ex-banker Frank Quattrone for sending an e-mail telling Credit Suisse First Boston employees to “clean up” their files during a criminal inquiry of the bank. (Quattrone is appealing his conviction.)

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