Here we present a synopsis of the key points in FRCP rules that apply to e-discovery.
FRCP 1—Scope and Purpose. This rule is simple and clear; its aim is to “secure the just, speedy, and inexpensive determination of every action.”11 Your discovery effort and responses must be executed in a timely manner.
The amended FRCP reinforce the importance of IG. Only about 25 percent of business information has real value, and 5 percent are business records.
The goal of the FRCP amendments is to recognize the importance of ESI and to respond to the increasingly prohibitive costs of document review and pro- tection of privileged documents.
FRCP 16—Pretrial Conferences; Scheduling; Management . This rule provides guide-t lines for preparing for and managing the e-discovery process; the court expects IT and network literacy on both sides, so that pretrial conferences regarding discoverable evidence are productive.
FRCP 26—Duty to Disclose; General Provisions Governing Discovery. This rule pro- tects litigants from costly and burdensome discovery requests, given certain guidelines.
FRCP 26(a)(1)(C): Requires that you make initial disclosures no later than 14 days after the Rule 26(f) meet and confer, unless an objection or another time is set by stipulation or court order. If you have an objection, now is the time to voice it.
Rule 26(b)(2)(B): Introduced the concept of not reasonably accessible ESI.
The concept of not reasonably accessible paper had not existed. This rule pro-r vides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party.
FRCP 26(b)(5)(B): Gives courts a clear procedure for settling claims when you hand over ESI to the requesting party that you shouldn’t have.
Rule 26(f): This is the meet and confer rule. This rule requires all par- ties to meet within 99 days of the lawsuit’s fi ling and at least 21 days before a scheduled conference.
Rule 26(g): Requires an attorney to sign every e-discovery request, re- sponse, or objection.
FRCP 33—Interrogatories to Parties . This rule provides a defi nition of business e-s records that are discoverable and the right of opposing parties to request and access them.
FRCP 34—Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes . In disputes overs document production, this rule outlines ways to resolve and move forward.
Specifi cally, FRCP 34(b) addresses the format for requests and requires that e-records be accessible without undue diffi culty (i.e., the records must be orga- nized and identifi ed). The requesting party chooses the preferred format, which are usually native fi les (which also should contain metadata). The key point is that electronic fi les must be accessible, readable, and in a standard format.
FRCP 37—Sanctions . Rule 37(e) is known as the safe harbor rule. In principle, it s keeps the court from imposing sanctions when ESI is damaged or lost through routine, “good faith” operations, although this has proven to be a high standard to meet. This rule underscores the need for a legally defensible document man- agement program under the umbrella of clear IG policies.
The Big Data trend underscores the need for defensible deletion of data debris.
Landmark E-Discovery Case: Zubulake v. UBS Warburg
A landmark case in e-discovery arose from the opinions rendered in Zubulake v. U.B.S.
Warburg , an employment discrimination case where the plaintiff, Laura Zubulake, g sought access to e-mail messages involving or naming her. Although UBS produced over 100 pages of evidence, it was shown that employees intentionally deleted some relevant e-mail messages. 12 The plaintiffs requested copies of e-mail from backup tapes, and the defendants refused to provide them, claiming it would be too expensive and burdensome to do so.
The judge ruled that U.B.S. had not taken proper care in preserving the e-mail evidence, and the judge ordered an adverse inference (assumption that the evidence was damaging) instruction against U.B.S. Ultimately, the jury awarded Zubulake over
$29 million in total compensatory and punitive damages. “The court looked at the proportionality test of Rule 26(b)(2) of the Federal Rules of Civil Procedure and applied it to the electronic communication at issue. Any electronic data that is as ac- cessible as other documentation should have traditional discovery rules applied.” 13 Although Zubulake’s award was later overturned on appeal, it is clear the stakes are huge in e-discovery and preservation of ESI.
E-Discovery Techniques
Current e-discovery techniques include online review, e-mail message archive review, and cyberforensics. Any and all other methods of seeking or searching for ESI may be employed in e-discovery. Expect capabilities for searching, retrieving, and translating ESI to improve, expanding the types of ESI that are discoverable. Consider this potential when evaluating and developing ESI management practices and policies.14
E-Discovery Reference Model
The E-Discovery Reference Model is a visual planning tool created by EDRM.net to assist in identifying and clarifying the stages of the e-discovery process. Figure 8.1 is the graphic depiction with accompanying detail on the process steps.
Information Management. Getting your electronic house in order to miti- gate risk and expenses should e-discovery become an issue, from initial cre- ation of electronically stored information through its fi nal disposition
Identifi cation. Locating potential sources of ESI and determining their scope, breadth, and depth
In the landmark case Zubulake v. U.B.S. Warburg , the defendants were severelyg punished by an adverse inference for deleting key e-mails and not producing copies on backup tapes.
Preservation. Ensuring that ESI is protected against inappropriate altera- tion or destruction
Collection. Gathering ESI for further use in the e-discovery process (pro- cessing, review, etc.)
Processing. Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review and analysis
Review. Evaluating ESI for relevance and privilege
Analysis. Evaluating ESI for content and context, including key patterns, topics, people, and discussion
Production. Delivering ESI to others in appropriate forms, and using ap- propriate delivery mechanisms
SEVEN STEPS OF THE E-DISCOVERY PROCESS
In the e-discovery process, you must perform certain functions for identifying and preserving electronically stored (ESI), and meet requirements regarding conditions such as relevancy and privilege. Typically, you follow this e-disco- very process:
1. Create and retain ESI according to an enforceable electronic records reten- tion policy and electronic records management (ERM) program. Enforce the policy, and monitor compliance with it and the ERM program.
2. Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review.
3. Process and fi lter the ESI to remove the excess and duplicates. You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.
4. Review and analyze the fi ltered ESI for privilege because privileged ESI is not discoverable, unless some exception kicks in.
5. Produce the remaining ESI, after fi ltering out what’s irrelevant, duplicated, or privileged. Producing ESI in native format is common.
6. Clawback the ESI that you disclosed to the opposing party that you should have fi ltered out, but did not. Clawback is not unusual, but you have to work at getting clawback approved, and the court may deny it.
7. Present at trial if your case hasn’t settled. Judges have little to no patience with lawyers who appear before them not understanding e-discovery and the ESI of their clients or the opposing side.
Source: Linda Volonino and Ian Redpath, e -Discovery for Dummies (Hoboken, NJ: John Wiley s
& Sons, 2010), http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat- sheet.html (accessed May 22, 2013). Used with permission.
Presentation. Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native and near-native forms, to elicit further infor- mation, validate existing facts or positions, or persuade an audience15
The Electronic Discovery Reference Model can assist organizations in focusing and segmenting their efforts when planning e-discovery initiatives.
Guidelines for E-Discovery Planning
1. Implement an IG program. The highest impact area to focus are your legal processes, particularly e-discovery. From risk assessment to processes, com- munications, training, controls, and auditing, fully implement IG to improve and measure compliance capabilities.
2. Inventory your ESI. File scanning and e-mail archiving software can assist you.
You also will want to observe fi les and data fl ows by doing a walk-through beginning with centralized servers in the computer room and moving out into business areas. Then, using a prepared inventory form, you should interview users to fi nd out more detail. Be sure to inventory ESI based on computer systems or applications, and diagram it out.
3. Create and implement a comprehensive records retention policy, and also include an e-mail retention policy and retention schedules for major ESI areas. This is required since all things are potentially discoverable. You must devise a comprehensive retention and disposition policy that is legally defensible.
Figure 8.1 Electronic Discovery Reference Model Source: EDRM (edrm.net)
Information Management
VOLUME RELEVANCE
Identification
Preservation
Processing
Review Production Presentation
Analysis
Electronic Discovery Reference Model/©2009/v2.0/edrm.net Collection
The E-Discovery Reference Model is in a planning tool that presents key e-discovery process steps.
So, for instance, if your policy is to destroy all e-mail messages that do not have a legal hold (or are expected to) after 90 days and you apply that policy uniformly, you will be able to defend the practice in court. Also, implementing the retention policy reduces your storage burden and costs while cutting the risk of liability that might be buried in obscure e-mail messages.
4. As an extension of your retention policy, implement a legal hold policy that is enforceable, auditable, and legally defensible. Be sure to include all potentially discoverable ESI XE “litigation:e-discovery”. We discuss legal holds in more depth later in this chapter, but be sure to cast a wide net when developing retention policies so that you include all relevant electronic records, such as e-mail, e-documents and scanned documents, storage discs, and backup tapes.
5. Leverage technology. Bolster your e-discovery planning and execution efforts by deploying enabling technologies, such as e-mail archiving, advanced enter- prise search, TAR, and predictive coding.
6. Develop and execute your e-discovery plan. You may want to begin from this point forward with new cases, and bear in mind that starting small and piloting is usually the best course of action.