E-Discovery After the 2006 Amendments in Federal and

December 30, 2012,
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E-Discovery After the 2006 Amendments in Federal and
State Courts: The Current Status1
I. The Federal Amendments 2
II. E-Discovery in Federal and State Courts 6
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Information Governance
The Duty to Preserve
(2.1) Litigation Holds
(2.2) Preservation Orders
(2.3) Spoliation/Rule 37(e)
Discovery of ESI
(3.1) Rule 26(f)/Cooperation
(3.2) Case Management
(3.3) Accessibility & Proportionality
(3.4) Direct Access/Privacy
(3.5) Collection, Search & Review
(3.6) Production Formats
(3.7) Privilege Waiver
(3.8) Cost Allocation/Taxation of Costs
Discovery Sanctions
Other Rulemaking/Pilot Projects
Evidentiary Issues
Counsel Responsibility
6
7
9
12
14
18
19
21
23
28
30
32
35
37
40
42
44
45
III. Appendix 48
This Memorandum describes current e-discovery procedures in federal and state
courts as impacted by the 2006 E-Discovery Amendments to the Federal Rules.2 As
noted in Section I, the Amendments were relative modest and dealt with only certain
issues, ignoring others. In discussing them, we utilize the current version of the Rules,
which were “restyled” in 2007.3
In Section II, we focus on specific e-discovery issues, describing the interaction of
rules, best practice guidance and court decisions in federal and state courts. As of this
writing, some thirty states have essentially replicated the Amendments in their Civil
1
©Thomas Y. Allman. The author, a former General Counsel, is Chair Emeritus of Working Group 1 of
the Sedona Conference,® a co-editor of the PLI Electronic Discovery Deskbook and serves as an Adjunct
Professor at the University of Cincinnati College Of Law.
2
See Amendments to Federal Rules as transmitted to Congress by Chief Justice Roberts on April 12, 2006
(hereinafter “TRANSMITTAL OF RULES TO CONGRESS”), 234 F.R.D. 219, 221-251 (2006).
3
The revisions made no “changes in substantive meaning.” See Committee Note, Rule 1 (2007). A link
to the Rules as of December 1, 2011 is at http://judiciary.house.gov/hearings/printers/112th/civil2011.pdf.
December 30, 2012,
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Rules, others have taken only limited action and ten states have refrained from any
activity.4 In addition, at least a third of the Federal Districts (and some local state courts)
have enacted local rules or guidelines, which contributes to the balkanization of ediscovery procedure.
These trends also raise questions about the adequacy of the 2006 Amendments,
especially in regard to issues ignored.5
I. The Federal Amendments
Prior to the 1990s, federal and state courts accommodated discovery needs in civil
actions without rules dedicated to electronically stored information (“ESI”). However,
by the late 1990s, the explosive growth in unstructured, user-generated content such as
email raised a number of challenging issues regarding access, form of production and
allocation of costs. It also spawned a “litigation support” industry, including specialized
vendor service providers – and, increasingly, encouraged inside and outside counsel to
focus on the unique issues arising from e-discovery.
Eventually, the conviction grew that the differences in discovery of electronic
data and traditional documents could not be adequately accommodated without further
amendments. As the Rules Committee eventually put it, the differences are dramatic
because ESI is “retained in exponentially greater volume than hard-copy documents,” is
“dynamic, rather than static” and may be “incomprehensible” when separated from the
system that created it.6
Texas was the first jurisdiction to explicitly treat e-discovery by separate rules.
Ultimately, the Federal Rules Committee, after careful study, released a comprehensive
set of draft Amendments (with Committee Notes) for public comment in 2004.7
Coincidentally, the first edition of the Sedona Conference® Best Practice Principles –
providing comprehensive best practice guidelines - also was issued at about the same
time.8
After making targeted changes in the drafts, the Supreme Court recommended and
Congress approved a revised package of Rules which became effective in December,
2006 (the “2006 Amendments” or the “Amendments”).
4
The Appendix provides a summary of each state’s e-discovery rulemaking status.
See Thomas Y. Allman, Local Rules, Standing Orders and Model Protocols: Where the Rubber Meets the
(E-Discovery) Road, November 28, 2012 at 11 (Publication forthcoming, JOLT, Spring, 2013)(thirty-two
of the ninety-four Federal district courts have adopted Local Rules, Guidelines or “model” provisions or
standing forms to provide e-discovery guidance).
6
TRANSMITTAL OF RULES [& NOTES] TO CONGRESS, 234 F.R.D. 219, 307 (2006)(Report of the Advisory
Committee)(hereinafter “Transmittal to Congress (2006)”).
7
Report of the Civil Rules Advisory Committee, May 17, 2004, Revised August 3, 2004, copy available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/comment2005/CVAug04.pdf.
8
See Thomas Y. Allman, The Sedona Principles (Second Edition): Accommodating the 2006 E-Discovery
Amendments, 3 FED. CTS. L. REV. 63 (2009).
5
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The 2006 Amendments: ESI
The 2006 Amendments famously distinguish between “electronically stored
information” and “documents.” Under amended Rule 34(a),9 a party may now “request
the opportunity to inspect, copy, test or sample any designated document or electronically
stored information [hereinafter “ESI”]” which “is stored in any medium from which
information can be obtained either directly or, if necessary, by translation by the
responding party into a reasonable usable form.” Similarly, Rule 45 permits the use of a
subpoena to command the production of ESI in a person’s possession, custody, or
control.
While discoverable ESI is typically found on active computer systems, it may also
exist on distributed or inactive devices, ranging from smartphones to backup tapes – or
on sites maintained by others, such as those “in the cloud” – as to which the producing
party has a right to access. It also includes embedded or system “metadata” associated
with the primary ESI and the system on which it exists.
It may exist in fragmentary, residual or “deleted” form and be retrievable only by
forensic examinations of the media in which it resides.
It may also be ephemeral in
nature - i.e., a type of data whose existence is fleeting. In Columbia Pictures v. Bunnell,
the court noted that the Rules “require no greater degree of permanency from a medium
than that which makes obtaining the data possible.”10
Rule 34(a) and Rule 45(a) now also acknowledge a right of direct access to ESI
found on hard drives of devices in the possession or control of a party or non-party.
Privacy concerns about such invasive or intrusive aspects of e-discovery are important in
fashioning protocols or remedies in such instances.
Preservation/Safe Harbor
The growth in discovery of information in electronic form caused an increased
emphasis on the common law duty to preserve information, given the volumes and
transitory nature of ESI. The Federal rules do not describe the contours of the duty or
the circumstances triggering it.11 “Spoliation” sanctions are available to rectify the
results of loss, destruction or failures to preserve discoverable information.12 However,
9
The Rules Committee expanded the definition of “documents” in 1970 to include “data compilations from
which information can be obtained, translated, if necessary, by the respondent through detection devices
into reasonably usable form.” See Amendments & Committee Note (1970), 48 F.R.D. 487, 525-527 (19691970).
10
Columbia Pictures v. Bunnell, 245 F.R.D. 443, 447 (C.D. Cal. August 24, 2007)(Cooper, J.)(the Rules
does not exclude “information written in a particular medium simply because that medium stores
information only temporarily”).
11
Thomas Y. Allman, Managing Preservation Obligations After the 2006 Federal E-Discovery
Amendments, 13 RICH. J. L. & TECH. 9, *12-13 (2007)(the Committee was urged to “deal directly with the
ambiguities of preservation obligations in the ESI context” but did not do so).
12
See Tucker, The Flexible Doctrine of Spoliation of Evidence: Cause of Action, Defense, Evidentiary
Presumption, and Discovery Sanction, 27 U. TOL. L. REV. 67 (1995). .
December 30, 2012,
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the 2006 Amendments added what is now Rule 37(e)13 in order to limit sanctions for
losses of ESI resulting from “routine, good faith” system operations.14 The Committee
Note also implicitly endorsed the use of “litigation holds” – an approach originally
highlighted by Zubulake v. UBS Warburg (“Zubulake IV”) – as a tool to be employed in
preventing spoliation.15
Early Party Discussions/ Cooperation/ Case Management
A major goal of the 2006 Amendments was to encourage agreements to prevent
future disputes by enlarging the mandatory topics at the “meet and confer” preliminary
conference of the parties.
Rule 26(f) now requires discussion of “any issues about
preserving discoverable information” – a first for the Federal Rules – and development of
“discovery plan” which addresses “any issues about disclosure or discovery of [ESI],
including the form or forms of production” and the handling of post- production claims of
privilege.
A related trend has been an emphasis on cooperation among parties in addressing
e-discovery.
This trend is reflected in local Federal rules and initiatives and in the
Sedona Conference® Cooperation Proclamation and is widely supported by the judiciary.
In addition, Rule 16(b) was amended to encourage courts to “provide for
disclosure or discovery of [ESI]” in any orders issued after the conference. This has
been supplemented by model forms provided by local rules and initiatives, which have
been widely adopted in Federal District Courts.16 While few states have adopted formal
early conference processes, most encourage discussion of e-discovery topics at initial
conferences with the court.
Scope Limitations: Rule 26(b)(2)(B) and Proportionality
Although the 2006 Amendments did not change the scope of discovery under
Rule 26(b), they did presumptively limit, in Rule 26(b)(2)(B), the necessity to produce
ESI from sources identified as inaccessible because of undue burden or cost. The Rule
also provides for court-ordered production for good cause.17
13
As originally enacted, the rule was numbered Rule 37(f).
Rule 37(e) limits sanctions “under these” rules for losses of ESI in the absence of “exceptional
circumstances.”
15
220 F.R.D. 212, 218 (S.D. N.Y. 2003).
16
Links to many of the e-discovery initiatives in effect as of late 2011may be found at
http://tinyurl.com/LNw12-cp02.
In November, 2012, for example, the Northern District of California
announced Guidelines, Checklists (for Rule 26(f) Conferences) and a Model Stipulated Order which are
required to be considered at the outset of cases. See http://www.cand.uscourts.gov/eDiscoveryGuidelines.
17
If a showing of inaccessibility is made, the Rule provides that a court may nonetheless order discovery
from such sources if the requesting party “shows good cause, considering the limitations of Rule
26(b)(2)(C).” The court may specify conditions for the discovery.
14
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As discussed in Section 3.3, this provision is intimately related to and dependent
upon “proportionality,” a pre-existing doctrine now which has come to play an especially
important role in limiting excessive ESI discovery.
“Possession, Custody or Control”
The responsibility to preserve and produce ESI under the Federal Rules turns on
whether the producing entity has possession, custody or control of the information.
Information held by a foreign parent is typically not under the “control” of its
independent US subsidiary,18 although the opposite is often true if the foreign entity is a
subsidiary of the US party. Moreover, production is often ordered from a party despite
the existence of The Hague Convention or foreign data protection or other types of
“blocking statutes.”19
Facebook, wireless service providers and other forms of social media are, to some
extent, protected from civil subpoenas by the current Federal statutes restricting
disclosures of the content of stored electronic information. However, courts routinely
avoid these strictures by compelling the party involved to authorize or consent to
requests, under their authority, for access.20 However, there is said to be a “significant
strain on the concept of ‘control’ in the preservation context.”21
Form of Production
The 2006 Amendments provide that a party must produce ESI in a form or forms
in which it “is ordinarily maintained” or one which is “reasonably usable” in the absence
of an agreement or court order governing the process.
A practical consensus has
developed, often reflected in Local Rules or Guidelines, that image-based material such
as e-mail and similar documents should be produced in searchable TIFF or PDF with load
files but that spreadsheets should be produced in native format, with database production
handled on a case by case basis.
Post-Production Claims of Inadvertent Production
Rule 26(b)(5)(B) was added to facilitate the “clawback” of documents or ESI
which were inadvertently produced and subsequently made the subject of a postproduction claim of privilege or work-product protection.
The Amendments did not deal with substantive waiver issues, and it was not until
after Congress enacted FRE 502 that a plausible solution to uncertainty developed.
18
Ex parte BASF Corporation, 957 So.2d 1104 (Oct. 27, 2006).
Societe Nationale Industrielle Aereospatiale v. US District Court, 482 U.S. 522, 543-544
(1987)(requiring particularized analysis of comity issues before requiring use of Hague Convention).
20
Mintz v. Mark Bartelstein, 2012 WL 3553351, at *5 (S.D. Cal. Aug. 14, 2012)( party may be compelled
to seek content text messages within his “control” from AT&T Wireless even though subpoena may legally
seek only subscriber information under SCA).
21
Steven S. Gensler, Special Rules for Social Media Discovery?, 65 ARK. L. REV. 7, 30 (2012).
19
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II. E-Discovery in Federal and State Courts
We now turn to an examination of the key discovery issues involving
electronically stored information in federal and state courts.
(1) Information Governance
The management of ESI, like that of information in hard copy form, is typically
governed by “document retention policies” which provide for the duration of retention of
the information, including its destruction. The underlying purpose is to separate
“records” from merely transitory information in order to meet business, regulatory and
risk management concerns and to best utilize limited storage capabilities.
When operated in good faith, the destruction of discoverable ESI pursuant to such
a policy is appropriate if implemented for “legitimate business reasons such as general
house-keeping.”22 In Arthur Andersen LLP v. United States,23 the Supreme Court noted
that it was “not wrongful for a manager to instruct his employees to comply with a valid
document retention policy under ordinary circumstances.”
Pending or Anticipated Litigation
However, retention policies must reasonably accommodate litigation needs,
including the need to cease destruction of information subject to a duty to preserve.
Once litigation is commenced or is imminent, the need to preserve relevant information
supersedes any requirements of internal policy or schedules regarding retention and
destruction.24 In Doe v. Norwalk Community College,25 for example, the Court rejected
the argument that a “neutral retention system” justified the destruction of email given
what the court regarded as gross negligence in the actions undertaken by the defendant in
response to a duty to preserve.
E-Mail Retention Policies
Retention policies reflect a wide variety of policy choice, ranging from mandatory
short periods to empowering and training of personnel to become, in effect, individual
records managers.26 Many place default limits on the retention of email and provide for
22
Micron Technology v. Rambus (“Micron II”), 645 F.3d 1311, 1322 (May 13, 2011)(innocent purpose
includes “simply limiting the volume of a party’s files and retaining only that which is of continuing
value”).
23
544 U.S. 696, 704 (2005).
24
Lewy v. Remington Arms, 836 F. 2d 1104, 112 (8th Cir. 1988)(remanding to determine whether
destruction of prior incidents after three years was reasonable and whether instituted in bad faith).
25
248 F.R.D. 372, 380 (D. Conn. July 16, 2007)(also rejecting application of [then] Rule 37(f)).
26
Sedona Commentary on Email Management: Guidelines for the Selection of Retention Policy, 8
SEDONA CONF. J. 239, 240 (2007)(“ a variety of possible approaches [appropriately exist] reflecting, size,
complexity and policy priorities”).
December 30, 2012,
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automatic deletion from the active folders of a mailbox if they are exceeded.
This
feature is often accompanied by the availability of alternative storage sources to which
email can be dragged or tagged by the user. 27
The use of auto-delete polices has been deemed problematic by some courts,
however.
In Voom HD. v. Echostar,28 a New York state appellate court held that
“merely ask[ing] its employees – many of whom, presumably were not attorneys” to
remove documents deemed responsive “from EchoStar’s pre-set path of destruction” was
“insufficient” because it “vest[s] total discretion in the employee to search and select
what is relevant without the guidance and supervision of counsel.”29
(2) The Duty to Preserve
The Federal Rules do not spell out the contours of the duty to preserve
discoverable information,30 leaving it to the common law and to best practice guidance
like the Sedona Principles to “flesh out” the duty.31
The duty applies equally to
32
plaintiffs as well as defendants. The obligation may arise from many sources, including
common law, statutes, regulations, or a court order in the case.33 The boundaries of the
duty to preserve involves “two related inquiries: when does the duty to preserve attach,
and what evidence must be preserved?”34
Trigger
The onset of the duty to preserve arises upon commencement of litigation or,
under some circumstances, when litigation is reasonably foreseeable. In Silvestri v.
General Motors,35 involving destruction of an automobile involved in an accident before
the defendant manufacturer had a chance to examine it, the duty existed well before
litigation commenced.36 In Zubulake v. UBS Warburg (“Zubulake IV”),37 the court held
27
Velocity Press v. Key Bank, 2011 WL 1584720, at *3 (D. Utah, April 26, 2011)(refusing to sanction loss
of emails which were deleted under from archive after set expiration date unless a litigation hold is
applied).
28
Voom v. EchoStar, 93 A.D. 3d 33, 939 N.Y.S. 2d 321 (S.C. App. Dist. 1st Dept. Jan. 31, 2012).
29
Id., 327-328.
30
A minority of states treat the breach of a duty to preserve as justifying a tort based recovery of individual
damages for negligent or intentional spoliation, a topic beyond the scope of this paper. Cf. Miller v.
Lankow, 801 N.W.2d 120, 128 at n. 2 (Sup. Ct. Minn. Aug. 3, 2011)(the “use of the word ‘duty’ [in regard
to duty to preserve] is not meant to imply a general duty in tort”).
31
The Sedona Principles deal with practical aspects of the duty to preserve in many of the fourteen
Principles. See, e.g., Principles 1, 2, 3, 5, 6, 7, 9, 11, and 14.
32
See e.g., Leon M.D. v. IDX Systems, 464 F.3d 951 (9th Cir. 2006)(affirming dismissal of complaint as
sanction for intentional deletion of data in unallocated space on employee laptop).
33
Committee Note, Rule 37(f)(2006). The Committee Notes to Rule 26(f) and 26(b)(2) also contain
discussion of preservation of ESI, as do the Introductions to the respective proposed rules in the Committee
Reports sent to Congress. See, e.g., TRANSMITTAL OF RULES TO CONGRESS, 234 F.R.D. 219 (2006).
34
Zubulake v. UBS Warburg (“Zubulake IV”), 220 F.R.D. 212, 216 (S.D. N.Y. Oct. 22, 2003).
35
271 F. 3d 583 (4th Cir. Nov. 14, 2001)(dismissing case because of extraordinary prejudice to defendant).
36
Id., at 590.
37
Zubulake v. UBS Warburg (Zubulake IV), 220 F.R.D. 212, 218 (S.D. N.Y. Oct. 22, 2003).
December 30, 2012,
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that “once a party reasonably anticipates litigation, it must suspend its routine document
retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation
of relevant documents.”38
The Federal Circuit, in Micron Technology v. Rambus (“Micron II”),39 stated that
“[w]en litigation is ‘reasonably forseeable’ is a flexible fact-specific standard that allows
a district court to exercise the discretion necessary to confront the myriad factual
situations inherent in the spoliation inquiry.” The litigation need not be “‘imminent, or
probable without significant contingencies’” for the duty to preserve to arise.40
However, in Cache La Poudre Feeds v. Land O’Lakes,41 a court refused to find that a
demand letter was sufficiently explicit to trigger an obligation a duty to preserve.42
Scope/Nature of Duty
The scope of the duty to preserve ESI is coextensive with the general scope of
Rule 26(b).43 A party must preserve what it knows, or reasonably should know, is
relevant in the action, is reasonably calculated to lead to the discovery of admissible
evidence, is reasonably likely to be requested during discovery and/or is the subject of a
pending discovery request.44
States apply similar reasoning in determining the “trigger” of the duty, often in
“lock-step” with Zubulake.45
The 2006 Amendments presumptively limited discovery of ESI by Rule
26(b)(2)(B), which indirectly influences the scope of the duty to preserve, since
“preservation and production are necessarily interrelated.”46 The Sedona Conference®
Commentary on Proportionality in Electronic Discovery notes that the “burdens and
costs of preservation” of potentially relevant information should be “weighed” when
determining the “appropriate scope of preservation.”47
38
Id. 218.
Micron Technology v. Rambus, 645 F.3d 1311, 1320 (Fed. Cir. May 13, 2011)(upholding appeal from
decision holding patents unenforceable due to spoliation).
40
Hynix v. Rambus, 645 F.3d 1336, 1346-1347 (Fed. Cir. May 13, 2011)(reversing lower court findings on
trigger because “contingencies whose resolutions are reasonably foreseeable do not foreclose a conclusion
that litigation is reasonable foreseeable”).
41
244 F.R.D. 614 (D. Colo. March 2, 2007).
42
Id., 622-624 (“[r]ather than threatening impending litigation, [the letter] implied that her client preferred
and was willing to explore a negotiated resolution”).
43
The scope includes nonprivileged matters relevant to any party’s claim or defense – but can be expanded,
for good cause, to include anything relevant to the “subject matter” of the dispute.
44
Zubulake v. UBS Warburg (“Zubulake IV”), 220 F.R.D. 212, 217 (S.D. N.Y. 2003)(also noting that
“anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence
that might be useful to an adversary”).
45
Voom HD v. Echostar, supra, 93 A.D. 3d 33, 41.
46
Pippins v. KPMG, 2012 WL 370321, at *11 (S.D. N.Y. Feb. 3, 2012).
47
11 SEDONA CONF. J. 289 (2010); accord, Thomas Y. Allman, Managing Preservation Obligations After
the 2006 Federal E-Discovery Amendments, 13 RICH. J. L. & TECH. 9, ¶26 (2007)(“[J]ust as the duty to
produce is tempered by the principle of proportionality, so should courts take the same approach in regard
to preservation decisions”).
39
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Courts have held that there is no duty to preserve information which is not
“routinely created or maintained” which requires “additional steps to retrieve and store”
at least until placed on notice that the requesting party considered it relevant and was
requesting it.48 At that point, there may be an obligation to preserve, “if possible, or to at
least negotiate in good faith about what data they could produce.”49
Rule 26(f), as
amended, requires parties to discuss any issues relating to preservation in their
conference prior to meeting with the court and submitting a discovery plan.50
A party may not need, for example, to preserve inaccessible backup tapes
maintained solely for disaster recovery.51
Facebook postings may not need to be
preserved in the absence of notice that they will be sought in discovery.
Similarly,
52
while deleted data, data in slack spaces and metadata are discoverable, much of this
information may not need to be preserved in the absence of notice of potential discovery
requests.53
Some Districts embody these principles in Local Rules54 which list
categories of ESI which are presumptively exempt from production (and preservation) at
least until parties agree or the court orders to the contrary.55 This approach removes
incentives to “sand-bag” an opponent by not mentioning the specific preservation
demand earlier.
(2.1) Litigation Holds
The use of “legal holds’ or “litigation holds,” as announced in Zubulake IV,56 has
“gained momentum as part of a common process by which organizations can begin to
meet their preservation obligations.”57 Zubulake V58 listed the “steps that counsel should
48
Arista Records LLC v. Usenet.Com, 608 F.Supp.2d 409, 431 (S.D. N.Y. Jan. 26, 2009)(relating to
transitory data).
49
Id. (citing, as an analogy, the good faith obligations in Rule 37(e)).
50
If agreements are not reached, a party may seek a protective order based on proportionality concerns in
the subsequent court conference as contemplated by amended Rule 16(b).
51
220 F.R.D. 212, 217-218 (S.D. N.Y. Oct. 22, 2003)(except for identifiable tapes storing documents of
key players when the information is not otherwise available).
52
Victor Stanley v. Creative Pipe, 269 F.R.D. 497, 524 (D. Md. Sept. 9, 2010)
53
Columbia Pictures v. Bunnell, supra, 2007 WL 2080419, at *14 (C.D. Cal. May 29, 2007), aff’d sub.
nom, 245 F.R.D. 433 (C.D. Cal. August 24, 2007); accord, Healthcare Advocates v. Hardin, Earley,
Follmer & Frailey, 497 F. Supp. 627, 640-641 (E. D. Pa. July 20, 2007)(refusing to impose adverse
inference for failure to remove computers from use in order to prevent loss of temporary cache files).
54
See, e.g., [Proposed] W.D. WASH. LCR 26 (2012), copy at link on home page,
http://www.wawd.uscourts.gov/ (scroll to Model Protocol)(listing eight categories of ESI that
presumptively are not required to be preserved).
55
An informal proposal has been floated to include this approach in Rule 26(b)(1). See Memo, Adapting
Rule 26(b)(1) for [ESI], Agenda Book; copy at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2012-03.pdf.
56
220 F.R.D. 212, 218 (S.D. N.Y. Oct. 22, 2003).
57
The Sedona Conference® Commentary on Legal Holds:The Trigger & The Process, 11 SEDONA CONF. J.
265, 267 (2010).
58
229 F.R.D. 422, 432 (S.D. N.Y. July 20, 2004).
December 30, 2012,
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take to ensure compliance with the preservation obligation.”59 Once the litigation hold
is in place, a party “and her counsel” must make certain that all source of potentially
relevant information are identified and placed on hold.60 This duty extends to
information maintained by key players - including information attributed to former
employees.61
Counsel – including inside counsel - have been sanctioned for failures
associated with inadequate litigation holds.
In Pension Committee v. Banc of America Securities,62 the same court held that
the failure to issue a written litigation hold constitutes gross negligence because that
failure is likely to result in the destruction of relevant information.63 This holding was
recently rejected by the Second Circuit.64 The court stated that the “better approach” is
to consider the lack of a litigation hold as simply “one factor” to consider in assessing the
preservation efforts.65
A similar conclusion was reached in Orbit One v. Numerex,66 a particularly
incisive post-Pension Committee opinion from the same District.
The reasonableness of a party’s preservation efforts is the predominate
consideration.67
In Rimkus v. Cammarata,68 the Court emphasized that what is
reasonable “depends on whether what was done – or not done – was proportional to that
case and consistent with clearly established applicable standards.”69
However, the
only reported case where the issue was squarely presented refused to grant a protective
order against excessive preservation demands.70
Accordingly, the only “safe” litigation hold policy is the use of a broad hold
process despite the resulting “over-preservation.”71
59
Id., at 433-434 (issuance of litigation hold; communications with key players, who should be periodically
reminded; production of “copies of their relevant active files” and identification and storage of backup
media “in a safe place”); see also at 436 (“[a]t the end of the day . . . the duty to preserve and produce
documents rests on the party”).
60
Zubulake v. UBS Warburg (Zubuke V), 229 F.R.D. 422, 432 (S.D. N.Y. July 20, 2004).
61
Cache La Pudre v. Land O’ Lakes, supra, 244 F.R.D. 614, 629-630 (D. Colo. March 2, 2007)(finding
violation of duty to preserve by expunging hard drives of key former employees after litigation began).
62
Pension Committee v. Banc of America Securities, 685 F. Supp.2d 456 (S.D. N.Y. Jan. 15, 2010,
amended May 28, 2010)(“Zubulake Revisited: Six Years Later”).
63
Id., at 465. A list of other grossly negligent acts is at 466 and is restated at 471.
64
Chin v. Port Authority, 685 F3d 136, 162 (2nd Cir. July 10, 2012).
65
Id. (noting that District court in Chin had refused to issue an adverse inference instruction in light of
“ample evidence” available elsewhere and the limited role the destroyed evidence played in the case).
66
Orbit One v. Numerex, 271 F.R.D. 429 (S.D. N.Y. Oct. 26, 2010).
67
Guideline 5, The Sedona Conference® Commentary on Legal Holds: The Trigger & The Process, 11
SEDONA CONF. J. 265, 270 (2010); see also at 280: “there is no per se negligence rule and if the
organization otherwise preserves the information then there is no violation of the duty to preserve”).
68
688 F. Supp. 2d 598 (S.D. Texas Feb. 19, 2010).
69
Id., at 613.
70
Pippins v. KPNG, 2012 WL 370321, at 255-256 (S.D. N.Y. Feb. 3, 2012)(refusing to conclude that the
cost of preserving all hard drives of departed potential class members because the record “is devoid of
information necessary to conduct such an analysis).
71
Victor Stanley v. Creative Pipe, 269 F.R.D. 497, 523 (D. Md. Sept. 9, 2010).
December 30, 2012,
Page 11 of 52
Best Practices
Current best practices focus on identifying and preserving relevant user-created or
‘unstructured’ information residing in email, electronic documents, spreadsheets and
other similar materials, as well as structured data in the form of databases. Typically, the
hold notice is communicated to key custodians and to appropriate IT, records retention or
other personnel directing them to retain potentially relevant documents, including ESI
and, in some cases, to undertake affirmative steps to ensure that information will not be
destroyed by routine processes.
A litigation hold should include an explanation for its issuance, the topics subject
to it, as well as the manner in which the identified information is to be handled. Copies
might be made of custodians’ mailboxes and files from active drives and other networked
shared sites. One key decision is whether to leave the information in place (i.e., on live
networks), or to undertake immediate collection and storage pending further review.
There may or may not be automated processes in place to track issuance of the litigation
hold and compliance.
The IT department plays a key role in regard to access to enterprise systems and
in steps to address suspension of automatic deletion policies. Selective backup media
may need to be retained, depending upon the likelihood that it captured unique copies of
relevant materials. Suspension of “auto-delete” policies may be required, at least for key
custodians. Hard drives from desktops or laptops of former employees who were
potentially involved might also be retained if not already redeployed. In addition, a
forensic image can be made of the individual desktop environment to remove the element
of risk that deleted information could escape preservation.
If incoming and outgoing email has been archived through journaling, a “hold
search” might be undertaken to identify and isolate email within the archive to be made
subject to the hold. Broadly worded keyword searches can sometimes be used to help
identify and segregate ESI for preservation in dedicated archives.72
Reliance on Custodians
The reliance on custodians to undertake preservation without any supervision has
been questioned. 73 The risks are said to include inconsistent, idiosyncratic methods and
a non-lawyers absence of legal knowledge.74 Some courts hold that non-lawyers do not
72
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (“Zubulake V”) (S.D. N.Y. July 20, 2004)
(suggesting use of “a broad list of search terms” to identify materials subject to preservation); accord
Sedona Conference® Best Practices Commentary on The Use of Search and Information Retrieval
Methods in E-Discovery, 8 SEDONA CONF. J. 189, 200 (Fall 2007).
73
Voom v. EchoStar, supra, 93 A.D. 3d 33, 939 N.Y.S. 2d 321, at 327-328 (S.C. App. Dist. 1st Dept. Jan.
31, 2012)(questioning processes which “vest[s] total discretion in the employee to search and select what is
relevant without the guidance and supervision of counsel”).
74
Jones v. Bremen High School, 2010 WL 216640, at *7 (N.D. Ill. May 25, 2010).
December 30, 2012,
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have enough knowledge to correctly recognize which documents are relevant and
otherwise may fail to reveal their own mistakes or misdeeds.75
However, it can be quite reasonable to rely upon custodians given their greater
familiarity with the specific language used and the methods and locations of retention.
In Orbit One v. Numerex, the court noted that where broad categories of information are
sought to be placed on hold or where small numbers of key custodians are involved,
reliance on custodial collection – even on oral instructions – can be reasonable.76 The
growth in “BYOD” (Bring Your Own Device) policies also raises a host of practical
complications in effectuating litigation holds.77
Discoverability of Litigation Holds
Some courts treat the content of litigation hold notices as privileged
communications not subject to discovery,78 at least in the absence of a preliminary
showing of spoliation.79 However, that is not true of such details as “to whom” they
were directed and the “kinds and categories of ESI” included.”80
(2.2) Preservation Orders
The issue of when and to what extent a court should issue orders compelling
preservation by parties – or permit the issuance of “preservation subpoenas” to third
parties81 - was not addressed in the text of the 2006 Amendments.82
However, the
Committee Note to Rule 26(f) rejected any implication that they should issue routinely.83
75
National Day Laborer v. ICE, 2012 W.L. 2878130, at * 11 (S.D. N.Y. July 13, 2012)(“most custodians
cannot be ‘trusted’ to run effective searches”); cf. Victor Stanley v. Creative Pipe, 268 F.R.D. 497, 526 (D.
Md. Sept. 9, 2010)( the more “logical inference is that the party was disorganized, or distracted, or
technically challenged, or overextended, not that it failed to preserve evidence because of an awareness that
it was harmful).
76
271 F.R.D. 429, 441 (S.D.N.Y. 2010).
77
See Phillp M. Berkowitz, Legal Challenges Arise to Bring Your Own Device Policies, LTN (New York
Law Journal), July 16, 2012, copy at
http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202563336410&Legal_Challenges_Arise_to_Bring_Yo
ur_Own_Device_Policies.
78
Capitano v. Ford, 15 Misc. 3d 561, 831 N.Y.S. 2d 687 (S.C. Chaut. Co., 2007)(finding “suspension
orders’ issued to records management group to be privileged).
79
Major Tours v. Colorel, 2009 WL 2413631, at *5 (D. N.J. 2009).
80
Cannato v. Wyndham, 2011 WL 5598306, at *2 (D. Nev. Nov. 17, 2011)(providing detailed list of
disclosures of facts “surrounding” the litigation hold).
81
See, eg., Caston v. Hoaglin, 2009 WL 1687927, at *4 (S.D. Ohio June 12, 2009)(authorizing issuance of
subpoena despite Rule 26(d) ban on pre-meet and confer discovery because asking non-parties to preserve
“lacks the force of a subpoena”).
82
One of the concerns prompting the Author’s initial support for what became the 2006 Amendments was
the experience, as a General Counsel, of repeated overuse of blanket ex parte preservation orders at the
outset of litigation, often with disruptive results.
83
Committee Note (2006), Rule 26, Subdivision (f)(“[t]he requirement that the parties [must] discuss
preservation [in Rule 26(f)] does not imply that courts should routinely enter preservation orders [over
objection]” and “[e]x parte preservation orders should issue only in exceptional circumstances”).
December 30, 2012,
Page 13 of 52
In Capricorn Power v. Siemens Westinghouse84 a court suggested that the
decision should reflect the level of concern for the continued existence of the information
in absence of an order, the degree of harm which might result from the failure to order
preservation and the capability of the party to maintain it.85 This contrasts with those
cases contending that such orders issue routinely “in cases involving electronic evidence,
such as e-mails and other forms of electronic communication.”86
While some courts treat such requests as requiring a showing of irreparable
harm, others hold that they are merely a type of “discovery order,”88 whose issuance is
justified by the power implied by Rules 16, 26(f) or Rule 37(b)(2) – or the inherent power
of a court. Local Federal District Rules and guidelines clearly contemplate that
agreements on the topic may and, in some cases, should, be embodied in case
management orders.
87
However, regardless of the source of authority or the role of party agreements, the
burdens of such an order on the business operations must be carefully analyzed,
especially in the absence of any showing that a party is not prepared to meet its
preservation obligations.89
Arizona cautions against issuance of orders that might
adversely impact the operation of a party’s computer system.90
A credible risk to successful implementation of preservation must also be shown,
however, as a condition precedent.91 The same principles apply when a forensic image
is ordered for purposes of preserving the status quo, especially in “trade secret” cases.92
In John B. v. M.D. Goetz, Jr.,93 the Sixth Circuit granted mandamus against a compelled
forensic imaging order because there was no showing that the parties “are unwilling, or
will refuse, to preserve and produce all relevant ESI.” As the Court noted, “litigants are
generally responsible for preserving relevant information their own” and “even if
acceptable as a means to preserve electronic evidence, compelled forensic imaging is not
appropriate in all cases, and courts must consider the significant interests implicated.”94
84
220 F.R.D. 429, 436-437 (W.D. Pa. April 21, 2004)(refusing to issue order based on lack of
demonstration that evidence will be lost or destroyed).
85
Id., at 433-434.
86
Pueblo of Laguna, 60 Fed. Cl. 133, 135 (Ct. of Fed. Claims, March 19, 2004)(issuing detailed order
based on inherent power of court to preserve for good cause).
87
Walsh v. Frayler, 26 Misc.3d 137(A), 2010 WL 956003 (N.Y. Sup. Ct. Suffolk Co. 2010).
88
See Victor Stanley v. Creative Pipe, 269 F.R.D. 497, 519 (D. Md. Sept. 9, 2010)(orders to preserve
issued sua sponte are orders to “permit discovery” whose violation can be sanctioned under Rule 37(b)(2)).
89
See also Pippins v. KPMG, 2012 WL 370321, at *11 (S.D. N.Y. 2012)(applying proportionality test to
order requesting preservation since “[p]preservation and production are necessarily interrelated”).
90
[Arizona] AZ St. RCP Rule 16(b)(1)(B)(ii)(orders may address “any measures the parties must take to
preserve discoverable documents or [ESI]”); see State Bar Committee Note, AZ St. RCP Rule 16(b).
91
Prism v. Adobe, 2012 WL 1514857, at *5 (D. Neb. April 30, 2012).
92
United Factory v. Alterwitz, 2012 WL 1155741 (D. Nev. April 6, 2012)( Magistrate Judge granted a
sweeping order mandating mirror-imaging of defendants home computers based on mere allegations that
“highly relevant evidence” could be lost in the absence of such an order).
93
531 F.3d 448, 459 (6th Cir. June 26, 2008).
94
Id., 259- 460 (issuing mandamus against compelled forensic imaging which failed to account properly
for significant privacy and confidentiality concerns).
December 30, 2012,
Page 14 of 52
Judge Francis, in Treppel v. Biovail, has pointed out, however, that a preservation
order “protects the producing party by defining clearly the extent of its obligations” and
reduces the risks of “future sanctions if discoverable information is lost because it has
miscalculated.”95 While denied as premature in that case, he also suggested that where
only marginally relevant information is involved, a court might condition the order on the
requesting party assuming responsibility for part or all of the expense.96
State courts routinely issue preservation orders.97 Some state e-discovery rules
include provisions which include preservation orders as one of the elements in postconference scheduling orders.
(2.3) Spoliation/Rule 37(e)
A failure to preserve discoverable information may constitute “spoliation,” which
can result in a variety of consequences, including sanctions imposed on a party or its
counsel. Under Residential Funding v. DeGeorge,98 for example, an adverse inference
jury sanction may be imposed if a court finds that relevant evidence, subject to a common
law duty to preserve, was altered or destroyed with a “culpable state of mind,” which
includes, in the Second Circuit, a finding of mere negligence.99
The Circuits differ as to the culpability requirement. A majority of courts
require that there be an “actual suppression or withholding of evidence,”100 sometimes
referred to as “bad faith.”101 These courts - and many states - hold that mere negligence
“does not sustain an inference of consciousness of a weak case.”102 Other Courts,
however, citing Residential Funding, authorize severe sanctions even for negligent
destruction based on the argument that each party should bear the risk of its own
negligence.
An excellent summary of the competing Circuit Court rulings is contained
as an Appendix to Victor Stanley v. Creative Pipe.103
While Zubulake IV did not order such an inference at the time, given a lack of
proof of relevance of the missing emails,104 it did so in Zubulake V105 after further
95
Treppel v. Biovail, 233 F.R.D. 363, 369 (S.D. N.Y. Feb. 6, 2006)(noting its use when ESI “may be in
danger of destruction in the absence of a preservation order”).
96
Id., at 373.
97
McMillen v. Hummingbird Speedway, 2010 WL 4403285 (C.C.P. Pa. Jeff. Co. Sept. 9, 2010)(ordering
party not to delete or eliminate social media postings).
98
Residential Funding Corp v. DeGeorge, 306 F.3d 99, 107 (2nd Cir. Sept. 26, 2002).
99
Id., 108 (culpable state of mind is satisfied by a showing that evidence was destroyed “knowingly, even
if without intent to [breach a duty to preserve it] or negligently”)(emphasis added by court).
100
Brigham Young University v. Pfizer, 2012 WL 1302288, at *6 (D. Utah April 16, 2012)(“an aggrieved
party must prove bad faith [to enter a spoliation instruction or adverse inference instruction).
101
Micron Technology v. Rambus, 645 F.3d 1311 (Fed. Cir. May 13, 2011).
102
Univ. Medical Center v. Beglin, __S.W.3d ___, 2011 WL 5248303, at *6 (S.C. Ky. Oct. 27,
2011)(missing evidence instruction “should not be given” where loss was result of “mere negligence”).
103
269 F.R.D. 495, 542 (Appendix)(D. Md. Sept. 9, 2010).
104
Zubulake IV, 220 R.R.D. 212, 222 (S.D. N.Y. Oct. 22, 2003)(ordering re-deposition at UBS costs for
“limited purpose” of inquiring into issues raised by newly discovered emails).
105
Zubulake V, 229 F.R.D 422 (S.D. N.Y. July 20, 2004).
December 30, 2012,
Page 15 of 52
discovery. The court had become convinced that the content of missing emails would
have been favorable to the plaintiff and issued an adverse inference instruction against
the defendants because of the “willful deletion of emails.”106
Many courts take the position that the authority to issue spoliation sanctions
“arises jointly under the [Rules] and the court’s own inherent powers.”107 Pre-litigation
spoliation is particularly the province of inherent sanctioning power,108 while spoliation
that occurs subsequently is more typically governed by Rule 37(b)(2).109
While Rule 37(b), on its face, applies only if a court order to provide or permit
discovery has been violated, in Turner v. Hudson Transit Lines,110 the court held that
“when noncompliance results from the spoliation of evidence, Rule 37(b) comes into
play” because this inability was “self-inflicted.” Similarly, in Shimanovsky v. GM,111
the Illinois Supreme Court applied its equivalent to Rule 37 to pre-litigation destruction
of evidence and explained that to hold otherwise would not deter pre-suit destruction of
evidence.112 In a case where a party could not produce evidence pursuant to an order
because of earlier spoliation, the Rule was said to apply because the conduct “eventually
resulted in the violation.”113
The use of inherent sanctioning authority to remedy discovery abuse was
acknowledged by the Supreme Court in Chambers v. NASCO.114 While some courts
require proof of specific lost information, a disparity between production of emails from
a source – and production from recipients – is often sufficient to justify further inquiry.115
In some cases, a finding of culpable conduct in the management of emails rests
upon slim inferences, often drawn by the court. A classic example is Connor v. Sun
Trust Bank,116 where an email procured by the plaintiff was furnished by her employer in
discovery. The court concluded that it was deliberately deleted since “it is doubtful that
[she] was not aware of the direct relevance” of the email.117
106
Id., 437, n. 99 (“I am not sanctioning UBS for the loss of the tapes (which was negligent) but rather for
its willful deletion of e-mails. Those e-mails happen to be lost forever because the tapes that might
otherwise have contained them were lost”)(emphasis in original”).
107
Zubulake IV, 220 F.R.D 212, at 216 & n. 12 and Zubulake V, 229 F.R.D 422, at 430 (same).
108
See Rimkus v. Cammarata, 688 F. Supp. 2d 598, 611 (S.D. Tex. 2010)(spoliation is addressed in federal
courts through the inherent power to regulate the litigation process “if the conduct occurs before a case is
file or if, for another reason, there is no statute or rule that adequately addresses the conduct”).
109
Scentsy v. B.R. Chase, 2012 WL 4523112, at *7 (D. Idaho Oct. 2, 2012)(“[i]f the spoliation occurs after
the case is filed, Rule 37(b)(2) typically governs the sanctions”).
110
142 F.R.D. 68, 72 (S.D. N.Y. Sept. 27, 1991).
111
181 Ill. 2d 112, 692 N.E.2d 286, 290 (S.Ct. Ill. Feb. 20, 1998).
112
Id., at 290.
113
APC Filtration v. Becker, 2007 WL 3046233, at *4 (N.D. Ill. Oct. 12, 2007).
114
Chambers v. NASCO, 501 U.S. 32, 46 (1991)(sanctioning scheme of the rules does not displace “the
inherent power to impose sanctions”).
115
Apple v. Samsung, 2012 WL 3042943, at *8 (N.D. Cal. July 25, 2012), aff’d on this point, 2012 WL
3627731 (N.D. Cal. Aug. 21, 2012)(D.J.)(the mere lack of volume from email accounts of key players is
sufficient to justify instructing a jury that it could presume that relevant evidence was destroyed).
116
546 F. Supp.2d 1360 (N.D. Ga. March 5, 2008).
117
Id., at 1376-1377.
December 30, 2012,
Page 16 of 52
Jury Instructions
The traditional evidentiary instruction to a jury regarding spoliation permits it to
draw adverse inferences about the missing information.
In Zubulake V,118 the court
instructed the jury that it could infer that the information would have been unfavorable if
it merely concluded that UBS could have prevented the failure.119 In Rimkus,120 a jury
could make that inference only if it decided that the defendants had “intentionally deleted
emails to prevent their use in litigation against [the opposing party].”121
Prejudice & Relevance
Some courts presume relevance and prejudice from the mere failure to use a
written litigation hold, which they presume to be evidence of gross negligence.122
However, more recent authority from that Circuit (the Second Circuit) rejects that
premise.123
Sedona Principle 14 suggests that sanctions should be considered only if there is
a “reasonable probability that the loss of the evidence has materially prejudiced the
adverse party.”
In Schmid v. Milwaukee Electric Tool, involving pre-litigation
spoliation, the Third Circuit reversed a harsh sanction that was not “commensurate with
the limited fault and [limited] prejudice present in this case.”124 Schmidt also highlighted
the need to use a lesser sanction when it is available and its use will “serve to deter such
conduct by others in the future.”125
Rule 37(e)
Rule 37(e) was adopted as part of the 2006 Amendments126 to bar sanctions for
the failure to preserve ESI when losses occur despite “routine, good-faith” conduct in the
118
229 F.R.D. 422.
Id. at 440.
120
Rimkus v. Cammarata, 688 F. Supp. 2d 598 (Feb. 19, 2010).
121
Id., at 653)(“the jury may, but need not, infer that the deleted emails that cannot be produced would
have been adverse to the [party]”).
122
Pension Committee v. Banc of America Securities, 685 F. Supp. 2d 456, 467 (S.D. N.Y. May 28,
2010)(“[r]elevance and prejudice may be presumed when the spoliating party acted in bad faith or in a
grossly negligent manner”).
123
Chin v. Port Authority of New York, 685 F.3d 135, 162 (2nd Cir. July 10, 2012)(“[w]e reject the notion
that a failure to institute a ‘litigation hold” constitutes gross negligence per se”).
124
13 F. 3d 76, 81 (3rd Cir. Jan. 9, 1994).
125
Id. at 79.
126
Rule 37(e) provides that sanctions may not be imposed “under these rules on a party for failing to
provide electronically stored information lost as a result of the routine, good-faith operation of an electronic
information system.”
119
December 30, 2012,
Page 17 of 52
operation of information systems.
A counterpart to Rule 37(e) has been adopted by
127
twenty-six states,
with some variations.128
The Rules Committee responded to concerns that the threat of spoliation sanctions
for inadvertent losses had caused producing parties to “over-preserve.”129 This resulted
from the “lack of a uniform national standard governing” preservation sanctions as
outlined in an Appendix to a discussion of the topic in Victor Stanley v. Creative Pipe.130
The Committee Note131 to the Rule has been widely interpreted as providing that
“Rule 37(e) does not apply where a party is already under a duty to preserve
information.”132 A better interpretation is that in the absence of a finding of bad faith
conduct designed to prevent use of information, sanctions are inapplicable even if there is
a loss of ESI.133 However, without any assurance that inadvertent failures are not to be
sanctioned, the practice of “over-preservation” has remained the only safe course of
conduct for producing parties in implementing litigation holds.134
Rulemaking “Push-Back”
In 2010, the Rules Committee conducted a Discovery Conference at the Duke
Law School and empowered its E-Discovery Panel, on which the author sat, to address
the preservation rulemaking.
One of the key concerns was the lack of a uniform
standard governing, inter alia, culpability requirements for preservation sanctions.
By the time of its November, 2012 Meeting, the Rules Committee had decided to
recommend the replacement of Rule 37(e) with a new rule with the same number
127
Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Indiana, Iowa, Kansas,
Louisiana, Maine, Maryland, Michigan, Minnesota, Montana, New Jersey, North Carolina, North Dakota,
Ohio, Oklahoma, Tennessee, Utah, Vermont, Wisconsin and Wyoming.
128
See, e.g., CAL CODE CIV. PROC. § 1985.8(l)(a court “shall not impose sanctions on a party or any
attorney of a party”); see also CONNECTICUT PRACTICE BOOK, CT. R. SUPER CT CIV, § 13-14
(2012)(limiting sanctions on a party “for failure to provide information, including [ESI]” in the absence of
“a showing of intentional actions designed to avoid known preservation obligations”).
129
Thomas Y. Allman, Inadvertent Spoliation of ESI After the 2006 Amendments: The Impact of Rule
37(e), 3 FED. CTS. L. REV. 25, 27 (2009).
130
Victor Stanley v. Creative Pipe, 269 F.R.D. 497, 516 -517 (Sept. 9, 2010)(referencing Appendix starting
at p. 542 and extending to 553).
131
Committee Note, Rule 37(f)(2006)(“[g]ood faith . . . may involve a party’s intervention to modify or
suspend certain features of that routine operation”).
132
Domanus v. Lewicki, 2012 WL 2072866 at n. 4 (N.D. Ill. June 8, 2012)(referencing the Advisory
Committee Note), rev’d on other grounds, 2012 WL 3307364 (N.D. Ill. Aug 13, 2012).
133
See, e.g., see Point Blank v. Toyobo America, 2011 WL 1456029 (S.D. Fla. April 5, 2011)(refusing
sanctions, citing Rule 37(e), in the absence of proof that failure to institute litigation hold was undertaken in
bad faith).
134
For a vivid description of the complications caused for entities desiring to meet their preservation
obligations, see Minutes, Mini-Conference on Preservation (Dallas, Sept. 2, 2011), at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_Materials/Notes%20from%20t
he%20Mini-Conference%20on%20Preservation%20and%20Sanctions.pdf.
December 30, 2012,
Page 18 of 52
clarifying the intent of the Committee.135 At that meeting, it was agreed, after further
modifications, to a proposal136- broadened to encompass all forms of discoverable
information – which was referred to the Standing Committee for review at its January
2013 meeting.137
The substitute rule would apply to any failure to preserve “discoverable
information” in the “anticipation or conduct of litigation” and authorize "curative"
measures or payment of reasonable expenses caused by a failure to preserve – but allow
imposition of severe sanctions only if the failure to preserve was “willful or in bad faith
and caused substantial prejudice. In determining whether there was a failure to preserve
or if a failure was willful or in bad faith, a court could consider a number of listed
factors.138
The proposed substitute also eliminates all references to “rule-based”
sanctions, which enables the draft Note to argue that the rule is broad enough that it
“makes unnecessary resort to inherent authority.”
The draft Note also rejects decisions that have authorized severe sanctions for
“negligence or gross negligence”139 and asserts that the rule “makes unnecessary [any]
resort to inherent authority” to justify sanctions. It also takes the position that the failure
to use a “litigation hold” is only one consideration, and that the failure to use a written
hold is not dispositive,140 a position similar to the one taken by the Second Circuit.
(3) Discovery of ESI
The basic discovery framework of the Federal Rules was largely unaffected by the
2006 Amendments.
Rules 34 and 45 were clarified so that ESI is now treated as a
separate category of discoverable material, with its own default production standard.
While the scope of discovery was not changed, Rule 26(b)(2)(B) was added to provide a
135
Compare Prof. Benjamin Spencer, The Preservation Obligation: Regulating and Sanctioning PreLitigation Spoliation in Federal Court, 79 FORDHAM L. REV. 2005, 2023-25 (2011)( spelling out precise
trigger obligations and suggesting making ex parte preservation orders available prior to commencement of
litigation with all failures to preserve violations subject to sanctions).
136
The Memo with the text of the proposed Rule 37(e)”) is reproduced at
http://law.duke.edu/sites/default/files/centers/judicialstudies/TAR_conference/Panel_4Background_Paper_3.pdf. It is found in the Agenda book for the Meeting, at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2012-10.pdf.
137
Draft Minutes, November 2, 2012 Meeting, at 12; copy at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Minutes/CV11-2012-min.pdf.
138
The Committee affirmed the use of factors (A)[extent of notice]; (B)[reasonableness of efforts
including use of litigation hold]; C)[referring to good faith consultation about preservation);
(E)[proportionality of efforts] and (F)[whether sought timely court guidance] but rejected (D)[relating to a
parties resources and sophistication]. Draft Minutes, supra, 12-13, November 2, 2012 Meeting, at 12-13.
139
Memo, 130.
140
Memo, 132 (“issuance of a litigation hold is often important on this point [but] is only once
consideration, and no specific feature of the litigation hold – for example, a written rather than an oral hold
notice – is dispositive”). Several Committee members and the Author advocated elimination of any
reference to litigation holds in the Rule. Cf. Id., 127-128.
December 30, 2012,
Page 19 of 52
presumption (rebuttable by “good cause”) against production of ESI from inaccessible
sources, along the lines alluded to in Zubulake I. 141
Modest but important changes were also made to Rules 26(f) and Rule 16(b) to
encourage early discussion of contentious issues and, through development of a discovery
plan, to alert the courts to the need for resolution of open issues. This might involve the
accessibility of sources (and any cost allocation to be sought) and the possibility of
agreements to limit the numbers of sources, types of custodial or non-custodial sources,
and the impact of preservation efforts.
The Rules specifically mention the form or forms of production and issues
relating to privilege issues.142
It is not uncommon for Local Rules or guidelines to
supplement these provisions by encouraging early discussion of e-discovery issues,
including how any technological tools are to be applied.143
These topics are discussed separately below.144
(3.1) Rule 26(f)/Cooperation
Amended Rule 26(f) now requires that parties meet and confer about “any issues
about preserving discoverable information” and to “develop a proposed discovery plan”
which deals with e-discovery topics.145 The Sedona Conference has published a
“Jumpstart Outline” of questions to be discussed.146 Some Local Rules and states rules
emphasize the responsibilities of counsel to be prepared to discuss client information
architecture at the conference.147
Form 52 (as renumbered in 2010) was amended to provide a bare-bones model for
Rule 26(f) reports to be submitted to the Court after the party conference. Many district
courts (or individual judges) also provide standardized forms for Rule 26(f) Reports.
Courts expect practical agreements on key issues such as the preservation, form of
production and limits on numbers of individuals, time periods or sources to be
141
Zubulake v. UBS Warburg (“Zubulake I”), 217 F.R.D. 309, 318-319 (May 13, 2003)( whether
production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an
accessible or inaccessible format (a distinction that corresponds closely to the expense of production)”).
142
A mechanism was also added to Rule 26(b) regarding claims of inadvertent production of privileged
materials.
143
W.D. N.Y. LCR 26 (f)(describing need to agree on search methodology).
144
The Duke (or “Koeltl”) Subcommittee of the Rules Committee continues to consider additional, mainly
uncontroversial, amendments to the discovery rules. Where appropriate those possible changes are alluded
to in the sections below and are summarized in Section 3.10.
145
Rule 26(f)(3)(C) requires that the discovery plan include, inter alia, “any issues about disclosure or
discovery of [ESI], including the form or forms in which it should be produced.”
146
The Sedona Conference® Jumpstart Outline (March 2011).
147
Counsel must be “sufficiently versed” in matters relating to their client’s technological systems to
discuss competently all issues relating to electronic discovery.” N.Y. Ct. Rules, §202.12 (b) & 202.70(g),
Rule 1 (b). In the case of cases in the Commercial Division, counsel “shall confer’ regarding “anticipated
electronic discovery issues.” Id, 202.70(g), Rule 8(b).
December 30, 2012,
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searched.148 One practical problem, however, is that many e-discovery issues are vague
and unframed at that point, contributing to an inability to compromise. In some cases,
such as asymmetric litigation, the incentives to do so are lacking if only one side has
voluminous amounts of ESI.
As a result, parties are often unable to reach meaningful agreement at an early
stage.
A study by the Federal Judicial Center concluded that in only 13% of cases
had parties actually discussed preservation issues involving ESI at the Rule 26(f)
Conference.150 A survey of Magistrate Judges roughly contemporaneous with the 2009
survey of practitioners, however, found a majority of those Judges in agreement with the
position that the amended Rule 26(f) process had been somewhat effective in improving
the conduct of the Rule 16(b) pretrial conferences.151
149
Cooperation
An underlying expectation of amended Rule 26(f) is that increased disclosures
and cooperative behavior will yield agreements on key e-discovery issues, thereby
avoiding unnecessary disputes and reducing costs.
In Facebook PPC Advertising
Litigation, a court emphasized that “electronic discovery should be a party-driven
process” and stressed the role of communications among counsel.152 Sedona Principle
3153 urges parties and their counsel to address discovery by cooperative efforts, as
reinforced by the Sedona Cooperation Proclamation, which challenges parties to adopt a
culture of cooperation in discovery.154
The Federal Rules do not mandate a “duty to cooperate,” having explicitly
rejected proposals to do so in former times.155 However, Rule 26(g) requires counsel to
conduct a reasonable inquiry before signing a pleading providing or objecting to
discovery, and the signature certifies that it is consistent with existing law and not
148
Thomas Y. Allman, Managing E-Discovery After the 2006 and 2008 Amendments: The Second Wave,
804 PLI/Lit 129 (2009).
149
See, e.g., Mag. Judge Geraldine Brown, Reining in E-Discovery, ABA Litigation, Summer 2011, 3
(“rarely have I seen any report of a Rule 26(f) conference that included a serious discussion of ESI, what
should be preserved, and what is reasonably accessible”), copy at
http://apps.americanbar.org/litigation/litigationnews/trial_skills/012412-tips-reining-in-ediscovery.html.
150
Emery G. Lee III, Early Stages of Litigation Attorney Survey, March 2012, at 5, n. 8, copy at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV201203_Addendum.pdf.
151
Emery G. Lee III and Kenneth Withers, Survey of United States Magistrate Judges, 11 SEDONA CONF. J.
201, 207 (2010).
152
In re Facebook, 2011 WL 1324516, at *2 (N.D. Cal. April 6, 2011)(ordering parties to meet and confer
to develop an ESI protocol including “the search terms that Facebook has used, and will use, in search of its
electronic documents”).
153
Sedona Principle 3 provides that parties “should confer early in discovery regarding the preservation and
production of [ESI] when these matters are at issue in the litigation and seek to agree on the scope of each
parties rights and responsibilities.”
154
The Sedona Conference ® Cooperation Proclamation, 10 SEDONA CONF. J. 331(2009).
155
Steven Gensler, Some Thoughts on the Lawyer’s E-Volving Duties in Discovery, 36 N. KY. L. REV.
521, 547 (2009)(a 1978 proposal requiring cooperation was deleted “in light of objections that it was too
broad,” and the requirement to participate in “good faith” was substituted).
December 30, 2012,
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interposed for an improper purpose. Moreover, counsel and parties must participate in
“good faith” in preparing discovery plans and attending case management conferences.156
In Mancia v. Mayflower Textile Servs. Co, the court observed that if “counsel cooperate
and communicate” at the start of discovery then “most, if not all, of the disputes [can be]
resolved without involving the court.”157
Many Local Rules expressly invoke cooperation as an aspirational standard.158
Local Rule 26.4 for the Southern and Eastern Districts of New York, for example,
provides that “counsel are expected to cooperate with each other, consistent with the
interests of their clients.”
It has been suggested that Rule 1 of the Federal Rules should be amended so that
would provide that “parties should cooperate to achieve” the ends of Rule 1.159 A point
of controversy ttee is whether the duty should be explicitly extended to counsel, not just
the courts. However, no final position has been taken on the proposal, which remains
open.160
(3.2) Case Management
A second key assumption of the 2006 Amendments was that courts should be
encouraged to facilitate e-discovery management.161
Rule 16(b) was amended to
dovetail with the requirements of the “discovery plan” to be submitted by the parties so
that the court would provide for “disclosure or discovery of electronically stored
information” as well as any agreements made about “asserting claims of privilege or
protection as trial-preparation material after information is produced.”162
Courts are increasingly prepared to facilitate management of cases involving ESI,
as needed. This includes preservation issues, as demonstrated by Pippins v. KPMG.163 In
156
F.R.C.P Rule 16 f) and Rule 37(f).
Id. at 365.
158
The Model Order recommended for use in the Northern District of California notes that “[t]he parties
are aware of the importance the Court places on cooperation and commit to cooperate in in good faith
throughout the [litigation covered by the Order].”
159
Sketches (October, 2012 Amendment), at 42-43 (Amended Rule 1), copy at
http://law.duke.edu/sites/default/files/images/centers/judicialstudies/Panel_4-Background_Paper.pdf
160
The Sedona Conference® on behalf of its drafting teams and Steering Committee, suggested addition of
the phrase “complied with” in Rule 1 to convey the value of cooperation, to which reference would be
made in the Committee Note.
161
Lee H. Rosenthal, From Rules of Procedure to how Lawyers Litigate: ‘Twixt The Cup and the Lip,” 87
DENV. U. L. REV. 227, 236 (2010)(arguing for early involvement of judges in “the cases that need such
supervision”).
162
Rule 16(b)(3)(B)(iii)-(iv). As discussed in Section 3.7 (Privilege Waiver), FRE 502 gives “teeth” to
any agreement incorporated by the court into the Scheduling or Case Management Order by binding parties
and non-parties alike in federal and state courts.
163
279 F.R.D. 245 (S.D. N.Y. Feb. 3, 2012)(District Judge)(denying motion for protective order under Rule
26(c) after concluding that burden or expense of preserving hard drives does not “outweigh[s] its likely
benefit” ); see also Changes Made [to Rule 26(b)(2)(B)] after Publication and Comment, TRANSMITTAL OF
RULES TO CONGRESS,” 234 F.R.D. 219, 339 (2006).
157
December 30, 2012,
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ArrivalStar S.A. v. United States,164 for example, the Court proposed a case management
order with detailed provisions governing production of e-discovery. In Tadayon v.
Greyhound, the court required parties to work cooperatively in resolving disagreements
and agreed to hold biweekly telephonic status conferences to resolve those which
remained open.165
The Northern District of California, for example, has issued,
consistent with its Standing Order governing case management,166 a package of ESI
Guidelines, a Checklist for the Rule 26(f) Conference and a Model Stipulated Order.167
The case management paradigm embraces phasing and sampling techniques, as
well as a willingness to adapt cost-shifting to the unique discovery issues in cases with
asymmetrical discovery. In Boeynaems v. LA Fitness,168 for example, Judge Baylson
established a discovery fence and utilized cost-shifting to help address the resolution of
discovery disputes in a complex class action.
Supplemental E-Discovery Disclosures
The 2006 Amendments did not openly enlarge the scope of the Rule 26(a)
disclosures mandated without discovery. However, many Local Rules and Guidelines
implementing Rule 26(f) and Rule 16(b) do so, apparently based on the belief that to do
so increases the likelihood of voluntary agreements.169
For example, the Delaware E-Discovery Default Standards requires early
disclosure of the ten custodians “most likely to have discoverable information” as well as
a list of the non-custodial data sources most likely to contain “non-duplicative”
discovery.”170 Some have cautioned, however, that a “local rule that require[s] parties
to provide an information system “map” at the Rule 26(f) conference,” may extend
“beyond [the] national rules.”171
Nonetheless, early “voluntary” disclosures about information systems, done
cooperatively, are widely supported by courts and commentators.
164
2012 WL 3590414 (Ct. of Fed. Claims Aug. 20, 2012)(incorporating many of provisions of the Model
Order recommended by the Federal Circuit).
165
2012 WL 2048257, at *6 (D.D.C. June 6, 2012).
166
Standing Order, Contents of Joint Case Management Statement, N.D. Cal (Revised Nov. 27 2012).
167
N.D. Cal., Guidelines for ESI Discovery, copy at copy at
http://www.cand.uscourts.gov/eDiscoveryGuidelines. However, many of the model forms currently
posted for use in other Courts do not yet reflect the changes relating to Rule 26(f) conference topics, nor the
additional subjects required at Rule 16(b) scheduling conferences.
168
2012 WL 3536306 (E.D. Pa. 2012).
169
See, e.g., Supplemental Order re Civil Cases Before Judge William Alsup, Northern District of
California (2008), ¶ 13 (“parties must search computerized files, e-mails, voice mails, work files, desk files
[and basic information should] be made available to the other side . . . as if it were a response to a standing
interrogatory”)(copy on file).
170
Delaware Fed. Ct. Default Standard (2011), Para. 3, copy at http://www.ded.uscourts.gov/ (scroll to
Local Rules & General Orders, then to Default Standard for Discovery).
171
Lee H. Rosenthal, Electronic Discovery - Is the System Broken? Can It Be Fixed?, 51 The Adovoc.
(Texas) 8, [51 ADVOCTX 8] (2010).
December 30, 2012,
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Liaisons
A number of Districts require parties to appoint e-discovery “liaisons” to help
facilitate coordination in discovery. The Seventh Circuit Pilot Program reports its
successful use.
A District Judge in the Southern District of Ohio recently ordered a
similar requirement as applied to a pending case.172
(3.3) Accessibility & Proportionality
The 2006 Amendments did not directly address the scope of discoverable ESI,
which continues to be governed by Rule 26(b)(1).
Indeed, as one court put it, “[a]fter
173
all, electronic discovery is, at bottom, just discovery.”
The Amendments did presumptively limit the obligation to produce from
“inaccessible” sources absent “good cause” while invoking the aid of the
“proportionality” doctrine in assessing if the presumption has been overcome. Since
proportionality applies to all forms of discovery, some have suggested that the
accessibility distinction, limited to ESI, could just as easily not have been included, with
reliance placed only on proportionality.
We discuss both concepts below along with the emerging trend to use “fixed
discovery limits” to help guide parties in their early planning for preservation and
production of ESI and other forms of discoverable information.
Accessibility
Rule 26(b)(2)(B), as added by the 2006 Amendments, presumptively limits the
need to produce ESI from those sources which “the party identifies as not reasonably
accessible because of undue burden or cost.”174 The presumption can be overcome by a
showing of “good cause,”175 with the burden on the requesting party to make that
showing when and if the producing party establishes the source as inaccessible. 176 A
court may order “conditions,” which may include some shifting of costs, should it order
production.177
172
See In re Porsche Cars North America, 279 F.R.D. 447, 450 (S.D. Ohio Jan. 24, 2012)(ordering
appointment of e-discovery coordinator to be “responsible for organizing each party’s e-discovery effort”).
173
Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *12 (S.D. Fla. Nov. 16, 2009)(refusing,
on proportionality grounds to order a complete search of backup tapes).
174
Rule 26(b)(2)(B).
175
The Duke Subcommittee of the Rules Committee is considering citing inserting a reference to the phrase
“proportionality” in Rule 26(b)(1) to clarify that all discovery is limited by proportionality concerns.
176
The Committee Note to Rule 26(b)(2)(2006) lists the following as appropriate to determining good
cause to order production: (1) the specificity of the request; (2) the amount of information available
elsewhere; (3) the failure to produce information no longer available; (4) the likelihood of finding unique
information; (5) predictions about the importance of the information; (6) the importance of the issues at
stake; and (7) the parties resources.
177
The topic of cost-shifting is separately discussed in Section 3.8, below (“Cost Allocation/Taxation of
Costs”).
December 30, 2012,
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The Rules Committee, after criticism of its earlier draft Committee Note on the
topic, flatly refused to speculate on the impact of the new Rule on the duty to preserve
information.178
The “accessibility” distinction originated with Zubulake I,179 where, citing to the
“proportionality” doctrine,180 the court identified “[f]ive categories of data . . . from most
accessible to least accessible” for purposes of determining where cost shifting might be
considered, with only the inaccessible sources subject to that possibility.181 The Court
ordered production to proceed from sources it deemed accessible and ordered sampling of
backup tapes at issue in order to determine if production should be made and, if so,
whether cost-shifting should occur.182
As adopted by the Federal Rules for purposes of determining the application of
presumptive limitations, the focus of the Rules Committee was not just on the media
involved, but on the difficulties of retrieval and restoration of the data.183 The Sedona
Conference® Commentary on Preservation, Management and Identification of Sources
of Information that Are Not Reasonably Accessible184 thus suggests that data complexity
factors should be considered.
The rule can have a positive impact185 when parties take the opportunity to
discuss potential sources before the Rule 16 initial conference with the court. The
Committee Note suggests that “a requesting party’s willingness to share of bear the
access costs” may be weighed in considering if “good cause” exists.186
Local rules,
protocols and guidelines often require specific disclosures of potential inaccessible data
sources to facilitate the discussion.
Few reported decisions, however, have found sources to be inaccessible and,
when they do, the courts routinely find good cause to ignore the finding. In W. E.
178
The final Committee Note to Rule 26, Subdivision (b)(2) merely provides that whether a party must
preserve unsearched sources of sources it believes are not reasonably accessible “depends on the
circumstances of each case.”
179
Zubulake v. UBS Warburg (“Zubulake I”), 217 F.R.D. 309, 318-319 (May 13, 2003).
180
Id., at 316.
181
Id., at 318-319 (“whether production of documents is unduly burdensome or expensive turns primarily
on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the
expense of production)”).
182
Id., at 324.
183
The examples cited in the Rules Committee Report focus on the efforts involved in retrieval of the data.
See TRANSMITTAL OF RULES, 234 F.R.D. 219, 331 (2006)(backup tapes not susceptible to search; legacy
data which is unintelligible on current systems; deleted data requiring “modern form of forensics” to
retrieve; and databases not susceptible to query for certain forms of information).
184
10 SEDONA CONF. J. 281, 289 (2009)(addressing “data complexity factors” which must be addressed in
addition to the “media” complexity factors).
185
Thomas Y. Allman, The ‘Two-Tiered’ Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled Its
Promise?, 14 RICH. J. L. & TECH. 7 (2008)(anecdotal evidence indicates that parties are accommodating
reasonable demands for limitations based on accessibility).
186
Committee Note, Rule 26, Subdivision (b)(2)(2006)( the “burdens of reviewing the information for
relevance and privilege may weigh against permitting the requested discovery”).
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Aubuchon v. Benefirst,187 the court applied the Zubulake I “media based analytical
approach” to find that that information was not reasonably accessible, but nonetheless
ordered production for good cause after considering factors listed in the Committee Note
to the Rule.188
Most decisions deal primarily with cost-shifting issues, although few
actually shift costs even if inaccessibility is found to exist.189
In Chen-Ostger v. Goldman, Sachs & Co.,190 putative class plaintiffs sought
extensive discovery of four databases which Goldman contended were not reasonably
accessible because of the burdens involved in retrieving the information. The court,
citing to Zubulake I, held that the rule was inapplicable because the burdens and costs did
not result from a “technological feature” existed which “inhibits accessibility” such as
“the means of storage.” 191 The Court also held that even if the information had been
deemed not reasonably accessible, it would have found good cause to order its
production, subject to proportionality concerns.192
Proportionality
Proportionality - now embodied in Rule 26(b)(2)(C) after the 2006 Amendments has emerged as the de facto limitation of choice to address excessive preservation and
production of ESI. The rule addresses the concerns with undue burdens and costs which
are often addressed by motions invoking Rule 26(c). One of the three elements of Rule
26(b)(2)(C)(iii)193 – the “proportionality” portion of the Rule - requires a court to limit
discovery if it determines that “the burden or expense of the proposed discovery
outweighs its likely benefit,” considering a list of factors.194
Courts have used that principle - and its counterpart embedded in Rule 26(g) as to
counsel - to encourage proportionate discovery (and discovery responses) by parties and
their counsel,195 to bar compliance with demands for excessive use of search terms,196
and, where appropriate, to deny requests for production.197
187
245 F.R.D. 38 (D. Mass. Feb. 6, 2007), 43
See 2006 Committee Note, Rule 26, Subdivision (b)(2)(listing seven “appropriate considerations”
ranging from the specificity of the request to the parties’ resources).
189
See discussion in Section 3.8.
190
2012 WL 3964742 (S.D. N.Y. Sept. 10, 2012).
191
Id., at *8-9 (collecting decisions said to support that view, such as W.E. Aubuchon v. BeneFirst, 245
F.R.D. 38 (Mass. 2007)) and GE v. Wilkins, 2012 WL 570048, at *5 (E.D. Cal. Feb. 21, 2012)). The court
“respectfully disagree[d]” with Thermal Design v. Guardian Building Products, 2011 WL 1527025, at *1
(E.D. Wis. April 20, 2011) which found archived email and shared network drives to be inaccessible). Id.
at n. 4.
192
Id. at n. 5.
193
Rule 26(b)(2)(C)(iii). Subdivision (i) limits “unreasonably cumulative or duplicative” discovery or
discovery which can be obtained from a more convenient, less burdensome or less expensive source.
Subdivision (ii) limits discovery when the requesting party has had “amply opportunity” to secure it.
194
The factors include “the needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
195
Mancia v. Mayflower Textile Serv. Co., 253 F.R.D. 354, 357 (D. Md. Oct. 15, 2008)(signature of
counsel under Rule 26(g)(1) certifies that to the best of the individuals belief, formed after a reasonable
inquiry, a discovery request, response or objection is neither unreasonable nor unduly burdensome or
expensive).
188
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In Wells Fargo Bank v. LaSalle Bank, Magistrate Judge Merz refused to order
restoration of backup tapes because it would be “disproportionate to the likely utility of
doing so.”198 In Chen-Oster, supra, however, the court held that “the needs of this case
justify the discovery sought by the plaintiffs”199 and that the burdens of discovery had
been “exaggerated” by Goldman Sachs.200
One relatively recent development is the open acknowledgement that the
proportionality principle applies to the assessment of any preservation obligations. In
Pippins v. KPMG,201 the court noted that “[p]reservation and production are necessarily
interrelated”202 but nonetheless affirmed the denial of a protective order barring the need
to preserve all hard drives of potential class members because of lack of adequate
information.203 The Sedona Conference® Commentary on Proportionality in Electronic
Discovery stresses that the burdens and costs of preservation should be “weighed against
the potential value and uniqueness of the information when determining the appropriate
scope of preservation.”204
In may well be, as noted in the preservation cases collected in Section 2.1, supra,
that it is often difficult for a court to balance benefit and burden in an adequately
definitive manner to exclude discovery or preservation demands at a relatively early stage
of the case.
However, this also limits proportionality’s usefulness in terms of planning to
execute litigation holds, with the resulting “over-preservation” and over-production of
information the result.
Currently, the Federal Rules Committee is considering a proposed amendment to
Rule 26(b)(1) which would refocus the scope of discovery on non-privileged matter
which is “relevant to any party’s claim or defenses and proportional to the needs of the
case considering [the factors from Rule 26(b)(2)(C)(iii)].205
196
In re National Assn. of Music Merchants Equipment Antitrust Litigation, 2011 WL 6372826, at 3 (S.D.
Cal. Dec. 19, 2011)(burden of additional keyword searches outweighs likely benefits given that plaintiffs
had ample opportunity to obtain other discovery).
197
See, e.g., Aguilar v. ICE, 255 F.R.D. 350, 360 (S.D. N.Y. Nov. 21, 2008)(refusing to order production
from backup tapes because of high cost and low benefit).
198
2009 WL 2243854, at *3 (S.D. Ohio July 24, 2009)( likelihood of additional information from search
low given practice of printing hard copies of emails for loan files).”
199
2012 WL 3964742, at *13 (“plaintiffs seek to vindicate the civil rights of the class members, and thus
further an important public interest”).
200
2012 WL 3964742, at *14.
201
279 F.R.D. 245 (S.D. N.Y. Feb. 3, 2012).
202
Id., 255.
203
Id., at 254 (given the failure to provide sample hard drives, court could not balance benefit and burden
“when I am missing one side of the scale (the benefits)”).
204
11 SEDONA CONF. J. 289, 291 (2010).
205
Sketches (October, 2012 Amendment), at 20 (Amended Rule 26(b)(1)(Scope), copy at
http://law.duke.edu/sites/default/files/images/centers/judicialstudies/Panel_4-Background_Paper.pdf.
December 30, 2012,
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Fixed Discovery Limits
There has been a marked trend in the past few years in use of fixed discovery
limits - with a related preservation impact - in negotiated party agreements and in Local
Rules and pilot projects.
For example, both the Seventh Circuit E-discovery Pilot
206
Program and the District of Delaware Default Standards207 list presumptive categories
of ESI which need not be preserved, absent notice and discussion, given that they are
typically not subject to discovery.
Principle 2.04 of the Seventh Circuit program
identifies deleted or unallocated data on hard drives, RAM, temporary files, frequently
updated metadata, duplicative backup data and forms of ESI requiring “extraordinary
affirmative measures” as not requiring production and, by inference, preservation. A
proposed Local Rule in one District echoes this approach.208
These provisions may well be “harbingers” of future national rules.209 At its
March, 2012 Meeting the Rules Committee was provided with an “informal” draft of
amendment to Rule 26(b)(1) which would place “default limitations on discovery of
[ESI]” since they might “also be useful referents for preservation decisions, which we are
inclined to limit to ‘discoverable’ information.”210 As Professor Suburin has noted, the
use of firm limits is often the best way of providing “constraint, focus, and predictability
to the unruly aspects of the federal rules[s].”211
States
Many states adopted the two-tiered approach of Rule 26(b)(2)(B) as part of their
e-discovery amendments. In Brokaw v. Davol, a state court applied the rule in
concluding that a backup tape was “not reasonably accessible because it has to be
defragmented and restored prior to being searched.” However, the court nonetheless
concluded that good cause existed because there was a “some likelihood’ that the
information would be relevant and not found on more easily accessed sources.
In Texas, ESI which is not “reasonably available” to a party “in its ordinary
course of business” must be produced unless an objection is lodged, in which case the
206
See [Proposed] Standing Order, Seventh Circuit E-Discovery Pilot Project, (listing six categories of ESI
whose possible preservation or production must be raised “at the meet and confer or as soon thereafter as
practicable”), copy at http://www.discoverypilot.com/ .
207
D. DEL. Default Standard for Discovery, at ¶ 1(c)(ii)(referring to App. A)(listing thirteen categories of
ESI which need not be preserved), copy at http://www.ded.uscourts.gov/court-info/local-rules-and-orders
208
[Proposed] W.D. WASH. LCR 26 (2012), copy at link on home page, http://www.wawd.uscourts.gov/
(scroll to Model Protocol)(listing eight categories of ESI).
209
Thomas Y. Allman, Local E-Discovery Experimentation: A Harbinger of National Procedural Rules,
October 31, 2012 (Submitted to Rules Committee for November Meeting)(copy on file with author).
210
Memo, Adapting Rule 26(b)(1) for [ESI], Agenda Book, Advisory Committee on Civil rules, March 2223, 2012, at 274 of 644(suggesting limits on (i) the duty to produce certain types of ESI; (2) the numbers
of custodians from whom information must be sought and (3) and limit on the a number of requested search
terms (4) time frames or (5) types of metadata sought); copy at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2012-03.pdf.
211
Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of a Sound Procedural System:
The Case for Presumptive Limits, 49 ALA. L. REV. 79, 101 (1997).
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costs of any “extraordinary steps” required to “retrieve and produce” the information
must be reimbursed.212
States also emphasize proportionality in discovery.
Pennsylvania recently
amended its rules213 to make ESI subject to traditional principles of proportionality under
Pennsylvania law. In Utah, proportionality is now said to be the “principal criterion”
under which motions to compel or for protective orders are to be evaluated.214
(3.4) Direct Access/Privacy
Amended Rules 34 and 45 acknowledge the right, under certain circumstances, to
compel direct access to ESI under the control of a party or non-party. However,
understandable concerns exist about the privacy of non-relevant material that may be
intermingled with relevant and discoverable information.215
Direct Access
Parties to federal and state litigation often seek the ability to conduct forensic
examinations of ESI media for deleted ESI or temporary files relevant to some issue
involving ESI or to retrieve information from complex databases.
As explained in
216
Townsend v. Ohio DOT, a typical technique in the case of the former is to create a
forensic or mirror image and to examine it pursuant to a court order or protocol outlining
the process to be followed.217
There is, however, no routine right to direct access. There is a “longstanding
general rule that people review their own records when responding to discovery
requests.”218 The Eleventh Circuit noted in the case of In re Ford Motor Company,
involving access to databases, that a party is “unentitled to this kind of discovery without
– at the outset – a factual finding of some non-compliance with [the] discovery rules.”219
Typically, direct access is granted only if a producing party is unable or unwilling
to meet its obligations or when discrepancies in production are shown. In Genger v. TR
212
Texas R. Civ. P. 196.4 (1999); In re Weekley Homes, LP, supra, 295 S.W.3d 309 (S.C. Tex. 2009)(
“[w]e see no different in the considerations [between federal law and Texas principles] that would apply
when weighing the benefits against the burdens of electronic-information production”). The extent to
which automatic cost-shifting is actually occurring in Texas state courts is not known. There are no
reported cases ordering it.
213
Pa. R.C.P. No. 4011 (eff. August, 2012).
214
Committee Note to URCP 37 (2011).
215
See Committee Note, Rule 34, Subdivision (a)(2006)(“[c]ourts should guard against undue intrusiveness
resulting from inspecting or testing such systems” which should not be regarded as constituting a “routine
right of direct access”).
216
Townsend v. Ohio DOT, 2012 WL 2467047 (Ohio App. 10 Dist. June 28, 2012).
217
Id., at *5 (“the process of forensic or mirror imaging” involves “replicating all allocated and unallocated
space on a computer hard drive” [collecting federal and state cases”).
218
Steven S. Gensler, Special Rules for Social Media Discovery?, 65 ARK. L. REV. 7, 23 (2012)(citing In re
Ford Motor).
219
In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003).
December 30, 2012,
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Investors,220 for example, the direct access was justified because of the absence of emails
which should have been on the server or workstations.221 However, as noted in Covad
Communications,222 “allegations of deficiencies in themselves” do not “automatically
require a forensic search whenever a party claims that there are, for example, fewer emails from a person or about a subject or transmitted in a given time than the party
expected to find.”
Courts also require that the limitations of accessibility and proportionality be
considered.223 Less burdensome sources may be relied upon, for example.
Privacy
Objections to intrusive discovery such as direct access are often accompanied by
privacy arguments, often based on state constitutional provisions. The same is true of
attempts to access social media.
Where the means of communication, such as computers used for work
applications, are furnished by employers, courts often find a limited expectation of
privacy in employee communications,224 although in Stengart v. Loving Care Agency,225
the New Jersey Supreme Court held to the contrary by applying a “reasonableexpectation-of-privacy standard” which it derived “from the common law and Article I of
the New Jersey Constitution.226
Commentators have expressed concerns about invasive or intrusive aspects of ediscovery in communications via social media.227 However, courts typically find only a
220
26 A.3d 180, 192 (Del. Sup. Ct., July 18, 2011).
Id. 192.
222
Covad Comm. v. Revonet, 258 F.R.D. 5, at *14 (D.D.C. May 27, 2009)(arguing that a showing should
be required that “the producing party has not complied with Rule 26(g) because the production is not
“complete and correct as of the time it was made”).
223
Tener v. Cremer, 89 A.D. 3d 75, 82, 931 N.Y.S. 2d 552(N.Y. Sup. Ct., A.D 1st Dept. Sept. 22,
2011)(third party is subject to subpoena for information stored in “a ‘cache’ file, as ‘unallocated’ data or
somewhere in backup data” despite difficulty in accessing it, subject to proportionality analysis).
224
City of Ontario v. Quon, 177 L.Ed.2d 216, 130 S.Ct. 2619, 2631 (2010)(employer furnished pager);
Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. Aug. 22, 2008)(similar).
225
Stengart v. Loving Care Agency, 201 N.J. 300, 990 A.2d 650, 663 (S.C. N.J. March 30, 2010)( finding it
both subjectively and objectively reasonable that the former employee would expect e-mails exchanged
with her attorney “would remain private”).
226
Id., at 660 & n. 3 (referencing a “right to privacy” which “can be found” in Article I).
227
Kerns, Pennsylvania Court Considers Appropriate Balance Between Electronic Discovery and Privacy,
Privacy & Data Security L. 2010.01-8 (2010)(“Somehow, the legal system must develop a balanced
approach that uses the truth gathering potential of ESI without abusing a litigant’s legitimate expectation of
privacy”).
221
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limited or qualified expectation of privacy, which can be either lost by waiver228 or in the
balance against the need for accurate fact finding inherent in the litigation process.229
(3.5) Collection, Search & Review
An important part of the production process is to identify potential sources of
relevant and discoverable information and to collect and review for responsive materials.
The 2006 Amendments did not deal with the methodology used to accomplish these
tasks. Unlike the hard copy world, however, where a party is aided in its search for
responsive documents centralized storage, subject matter and chronological filing, the
world of ESI presents a contrast in which massive volumes of information, often
duplicative and wide spread must be searched.
As noted in Treppel v. Biovail,230 a party “must conduct a diligent search, which
involves developing a reasonably comprehensive search strategy.”231
Accordingly,
parties seeking to locate responsive ESI must undertake reasonable efforts to distribute
discovery requests to all employees and agents potentially possessing responsive
information and to account for the collection of information.232
This is often done in conjunction with outside counsel, and may involve vendors
and the use of automated approaches similar to (and building upon) those used in
connection with any existing litigation holds. The review process typically involves a
blending of manual processes using attorneys and paralegals with some form of
computerized assistance in culling. According to a recent RAND study, the “costs of
review” for responsiveness, relevance and privilege constitutes upwards of 73% of the
total costs which must be absorbed, for the most part, by the producing party. 233
Two of the most prominently computer assisted techniques involve use of search
terms or “keywords” and the more advanced forms of “latent semantic indexing”234 such
as “predictive coding.”
228
Juror Number One v. Superior Court, supra, 206 Cal. App. 4th 854, 867 (C.A. 3rd D. Aug. 22,
2012)(parties posting comments on Facebook have given up privacy rights in same way as if they had sent
a letter still in the possession of the party in control).
229
Mintz v. Mark Barusten, 2012 WL 3553351 (C.D. Cal Aug. 14, 2012), at *11 (“the disclosure of
telephone numbers and cell site information, as well as the date, time, and duration of calls does not
represent a significant intrusion of Plaintiff’s privacy , particularly because the Court can issue an
appropriate protective order”).
230
233 F.R.D 363 (S.D. N.Y. Feb. 6, 2006).
231
Id., at 374 (noting that even when hard copy documents are exclusively involved, “there is no obligation
on the part of the responding party to examine every scrap of paper” in order to comply with discovery
obligations”).
232
Wollam v. Wright Medical Group, 2011 WL 1899774, at *5 (D. Colo. May 18, 2011)(litigants have an
obligation to make reasonable efforts to locate responsive documents).
233
Where the Money Goes: Understanding Litigant Expenditures For Producing Electronic Discovery,
RAND Institute for Civil Justice (2012), 97 (“the costs associated with large-scale document production
dominate total production expenditures”).
234
See, e.g., Jason R. Baron, Law in the Age of Exabytes: Some Further Thoughts on ‘Information
Inflation’ and Current Issues in E-Discovery Search, 7 RICH. J.L. & TECH. 9, at ¶ 32 (2011)(describing
December 30, 2012,
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Keyword Search
The use of “keyword” searches is well established.235 Care must be taken to
ensure that the terms used in the search are not overly inclusive or too narrow. Input
from knowledgeable ESI custodians on the use of words and abbreviations can be helpful
to assure accuracy in elimination of “false positives.”236 The need to assure accuracy is a
theme of two Sedona Conference® Commentaries relating to the topic.237
Some courts have stressed that “while key word searching is a recognized
method,” its use “must be in a cooperative and informed process. ” Sanctions have issued
where there was “no dialogue to discuss the search terms, as required by Rules 26 and
34.”238
In Cannata v. Wyndham,239 a Special Master was appointed to supervise
discovery of ESI including the approving of “search terms, determining the number of
search terms, refining search terms and allocating responsibility for the costs of eDiscovery” within parameters set by the court.240
In addition, by analogy to the “fixed limits” being placed on discovery, there is a
trend in model orders and Local rule initiatives to limit the numbers of suggestions for
keyword searches from requesting parties. The Delaware Default Standard, for example,
suggests that “a requesting party may request no more than 10 additional search terms to
be used in connection with an electronic search.”241
Predictive Coding
The use of “predictive coding” offers the possibility of increased accuracy as
compared to manual review.242 Vendors assert the possibility of substantial cost savings
as well. Under this approach, a suggested ranking of the possible relevance of individual
variations of techniques based on “latent semantic indexing,” currently known as “‘predictive coding,’
‘clustering’ technologies, ‘content analytics,’ and ‘auto-categorization,’ among many others”).
235
See, e.g., United States v. O’Keefe, 537 F. Supp.2d 14, 24 (D.D.C. Feb. 18, 2008)(“[w]hether search
terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at
least, of the sciences of computer technology, statistics and linguistics” and the topic “is clearly beyond the
ken of a layman”).
236
William A. Goss v. Am. Mftrs. Mutual Insur., 256 F.R.D. 134, 135 (S.D. N.Y. March 19,
2009)(decrying “seat of the pants” efforts by lawyers in designing keyword searches without adequate
input from those who wrote the email).
237
The Sedona Conference® Commentary on The Use of Search and Information Retrieval Methods in EDiscovery, 8 SEDONA CONF. J. 189 (Fall 2007) and the Sedona Conference® Commentary On Achieving
Quality in The E-Discovery Process, 10 SEDONA CONF. J. 299 (Fall 2009).
238
Id., 664 - 665 (sanctioning for purposely sluggish behavior, citing Residential Funding v. DeGeorge,
306 F.3d 99, 110 & n. 5 (2nd Cir. 2002) by not being as cooperative as possible in resolving custodial
issues).
239
Cannata v. Wyndham, 2012 WL 528224, at *4 (D. Nev. Feb. 17, 2012).
240
Id. at *4 (providing detailed cost allocation provisions).
241
D. DEL. DEFAULT STANDARD, supra, at http://www.ded.uscourts.gov/court-info/local-rules-and-orders .
242
Joseph H. Looby [FTI], E-Discovery – Taking Predictive Coding Out of the Black Box, November,
2012, copy at http://www.fticonsulting.com/global2/critical-thinking/fti-journal/predictive-coding.aspx.
December 30, 2012,
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data is provided through successive searches using algorithms “trained” by manually
reviewed samples.
Magistrate Judge Peck concluded in the case of Da Silva Moore v. Publicis
Groupe243 that predictive coding “can (and does) yield more accurate results than
exhaustive manual review.”244 One emerging requirement is that parties utilizing the
technique must make available a copy of the set of responsive and non-responsive
materials used to “train’ the mathematical models employed.245
The opinion also noted, however, that it was not deciding “[w]hether [a] Court, at
plaintiff’s request, [can or should] order the defendant to use computer-assisted review to
respond to plaintiffs’ document requests” nor does it mean that computer-assisted review
“must be used in all cases.”246
It would be quite inappropriate for a court or local
guideline to mandate that a party must adopt a particular search methodology, despite the
reported result in one state case.247 Under Sedona Conference® Principle Six,
“[r]esponding parties are best situated” to evaluate and choose the “procedures,
methodologies, and technologies” most appropriate to preserve and produce their own
ESI.
Moreover, any order entered without regard to individualized proof that a party
will not otherwise meet its discovery obligations would unreasonably intrude on
“behavior at the planning as distinguished from the disputative stage of activity.”248
(3.6) Production Formats
The 2006 Amendments provide that in the absence of agreement or a court order,
ESI should be produced in the “form in which it was maintained” or in a “reasonably
usable form.”249
Most states have adopted this formulation when enacting ESI
amendments.250
243
2012 WL 607412 (S.D. N.Y. Feb. 24, 2012).
Id., at *30, citing to Maura Grossman and Gordon Cormack, Technology-Assisted Review in EDiscovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17 RICH. J. L. &
TECH. 11, at 48 (Spring 2011)(describing comparisons between technology-assisted review and manual
review).
245
Ronni Solomon, Are Corporations Ready to Be Transparent And Share Irrelevant Documents With
Opposing Counsel to Obtain Substantial Cost Savings Through the Use of Predictive Coding, THE
METROPOLITAN CORPORATE COUNSEL, November, 2012 (collecting relevant cases), copy at
http://www.metrocorpcounsel.com/pdf/2012/November/26.pdf.
246
Id., at *39-40.
247
Report of Court Order, copy at http://e-discoveryteam.com/2012/10/25/news-flash-surprise-ruling-bydelaware-judge-orders-both-sides-to-use-predictive-coding/.
248
Olin Guy Wellborn III, The Federal rules of Evidence and the Application of State Law in the Federal
Courts, 55 TEX. L. REV. 371, 403-404 (1977)(describing when a rule sufficiently affects “primary –
nonlitigation related- conduct” to be prohibited by the Enabling Act).
249
Rule 34(b)(E)(ii); accord Rule 45 (d)(1)(B).
250
Cf. North Carolina Rule 26 (b)(1) [accessed as “NCRCP Rule ___” or “NC ST RCP 1A-1 Rule __”](for
purposes of discovery rules, ESI includes “metadata that will enable the discovering party to have the
ability to access such information as the date sent, date received, author and recipients” but not other
244
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The form in which data is “maintained” is widely understood to refer to its
“native” format – the form in which the information was created by the software
application employed. Production in that form necessarily includes both embedded
metadata and application and system metadata need to manipulate and re-create the
content. In Aguilar v. ICE,251 the court explained that metadata is discoverable when it
meets proportionality and relevancy tests and is not privileged.252 Sedona Principle 12,
heavily cited in Aguilar, reflects “the enhanced accessibility and functionality that
metadata provide to the recipients of ESI.”253
Production in a “reasonably usable” format is fact dependent, but may include
imaged formats, so long as any existing search capabilities are maintained,254 which can
be accomplished by appropriate use of a “load file.” Paper (“hard copy”) production can
also, by agreement, constitute a “reasonably usable” form, and is often used as a format
for production in smaller productions.
Under amended Rule 34(b), a requesting party may, but need not, specify the
form or forms sought.
The responding party must, however, state the intended
production format. This helps force preferences (and objections) out for discussion at
an early time. Rule 26(f) provides, however, that the parties should discuss the issue of
form or forms of production early. Courts have not been sympathetic to parties who do
not take advantage of that opportunity and later seek a “do-over” in another form.255
In Dahl v. Bain Capital, the court noted that he Rules Committee apparently
anticipated that local rules would “pick up the slack” for parties seeking more bright-line
or “default” guidance than the Federal Rules provide.256 That appears to be exactly what
has happened, and Local Rules and Guidelines appear to have reached a consensus on the
preferred forms of production, depending upon the type of ESI involved, as described
below.
Imaged Formats
Local Rules and Guidelines typically favor use of text searchable “imaged”
formats such as PDF, TIFF, or JPEG files for production of email and other documentmetadata unless agreed to or ordered for good cause). See also Rule (b)(2)(limiting default production to
“a reasonably usable form or forms”).
251
255 F.R.D. 350 (S.D. N.Y. Nov. 21, 2008); see also id., 353, n. 2 (defining TIFF and PDF, load files and
native formats).
252
Id. at 355-356, 360 (refusing to order reproduction of email metadata given lack of showing of “real
value”).
253
Id., 356.
254
Committee Note, Rule 34, Subdivision (b)(2006).
255
Kentucky Speedway v. NASCAR, 2006 WL 5097354 (E.D. Ky. Dec. 18, 2006)(“the issue of whether
metadata is relevant or should be produced is one which ordinarily should be addressed by the parties in a
Rule 26(f) conference”).
256
See, e.g., Dahl v. Bain Capital, 655 F. Supp.2d 146,148 (D. Mass. June 22, 2009)(addressing format of
production because “the Local Rules of this court have yet to provide any guidance on electronic
discovery”).
December 30, 2012,
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like images.257 Parties are free, of course, to vary requirements and some guidelines
specify the fields of metadata to be included in load files to accomplish these goals.258
As explained in Aguilar v. ICE,259 supra, citing to Sedona Principle 12, even if native
files are requested, it is sufficient to produce memoranda, emails and electronic records in
PDF or TIFF format accompanied by a load file containing searchable text and selected
metadata.260
Imaged formats are easier to redact than native formats and are
“reasonably usable” if care is taken to accommodate review needs.261
However, information in databases poses unique production issues.262
In the
Facebook PPC Advertising Litigation,263 production of a PDF of the text of a database
was unusable because it was not “formatted and [did] not include any field that describe
the text.”264 Parties often agree to produce reports generated from the database – rather
than seek to produce the data - in order to retain control over proprietary software. In
Aguilar v. ICE, supra, the plaintiffs sought production from hierarchical databases, and
the court ordered the parties to run a live demonstration of one of the database to in a
training environment.265
Native Format
The consensus of Local Rules and Model orders is that native production is
typically used only for files “not easily converted to image format, such as Excel, Access
files and drawing files.”266 Thus, spreadsheets, sound recordings, animated content and
other complex electronic presentations, which are dependent upon hidden formulae and
the like, are often produced in “native” or “quasi-native” file, which necessarily contain
all metadata associated with that application.
Where metadata associated with Word and Powerpoint documents are shown to
be relevant and not disproportionate, some courts are prepared to order their production
257
Suggested Protocol for Discovery of [ESI] in the [Federal] District of Maryland (“ESI should be
produced to the Requesting Party as Static Images,” with any subsequent production in Native File format
requiring a showing of “particularized need for that production”), copy available at
http://www.mdd.uscourts.gov/news/news/esiprotocol.pdf.
258
D. DEL. DEFAULT STANDARD ¶ 5(e)(listing metadata fields).
259
255 F.R.D. 350 (S.D. N.Y. Nov. 21, 2008).
260
Id. at 356 (citing to Sedona Comment 12b Illus. i).
261
Cf. Chevron v. Stratus Consulting, 2010 WL 3489922 (D. Colo. Aug. 31, 2010)(searchable PDF not a
reasonably usable form where the respondents were on notice that authorship would be at issue).
262
For a detailed discussion of this complex topic, see the Sedona Conference® Database Principles
(March 2011 Public Comment Version)(copy available at http://www.thesedonaconference.org.
263
2011 WL 1324516 (N.D. Calif. April 6, 2011).
264
Id. at 4 (ordering consideration of alternatives such as the onsite review of the database or a pre-loaded
computer with the data).
265
255 F.R.D 350, 363 (S.D. N.Y. Nov. 21, 2008)(refusing metadata request for two databases because of
security concerns but seeking to accommodate as to third).
266
Model Protocol, W.D. Wash, ¶ E (3) &(4); copy at http://www.wawd.uscourts.gov/news/proposed-localrule-changes (scroll to proposed Model Protocol). The Model Protocol also provides alternative
instructions for more complex cases, including such details as appropriate software files for use with
Concordance® or Summation® review platforms. Also discussed is the use of OCR technology for
scanning of hard copy documents, with appropriate cross reference files. See ¶¶ 2-4 of Section II.
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in what amounts to native format. 267 However, it is difficult or impossible to include
Bates numbers or confidentiality designations and redaction can be difficult. In addition,
live native files can be altered.268
Physical Production/Labeling/Organization
Rule 34(b)(E)(i) provides that a party “must produce documents as they are kept
in the usual course of business or must organize and label them to correspond to the
categories in the request.” As Judge Facciola explained in United States v. O’Keefe,269
this was added in 1980 to prevent the producing party from purposefully rearranged
documents prior to production. Some courts read this requirement as being equally
applicable, absent agreement, to the delivery of ESI, despite the argument that Rule
34(b)(E)(ii) and not (i) governs the form of production of ESI.270
ESI is typically delivered to a requesting party on “electronic media of sufficient
size to hold the entire production, for example, a CD DVD, or thumb drive” or, if size
warrants, a large capacity hard drive.
(3.7) Privilege Waiver
The routine production of ESI often risks, unless carefully done, production of
material subject to a claim of privilege or work-product protection.
As a result,
enormous resources are often devoted to efforts – reasonable and otherwise – to locate,
cull and bar such production.
When these efforts fail, claims of privilege are subject to waiver doctrines which
vary among the Federal Circuits and the States. The Amendments sought to address this
issue by including a mechanism in Rules 26 and 45 which applies once a claim of
inadvertent production is made. Under Rule 26(b)(5)(B), the recipient is obligated to
promptly “return, sequester, or destroy the specific information.”271 Similar provisions
have been widely adopted by states.
267
Aguilar v. ICE, 255 F.R.D 350, 361-362 (S.D. N.Y. Nov. 21, 2008)(granting motion to compel despite
marginal relevance of the metadata involved on condition that – since a delayed request – that plaintiffs pay
all costs of the production).
268
Jason Palm: E-Discovery Practice: Under the [FRCP] and the [Cal Code of CP], 830 PLI/Lit 49, 55
(2010).
269
537 F. Supp.2d 14, 19 (D.D.C. Feb. 18, 2008)(“to prevent the juvenile practice” of rearranging
documents copied for the requesting party prior to production).
270
City of Colton v. American Promotional Events, 277 F.R.D. 578, 586 (C.D. Cal. Oct. 13,
2011)(rejecting analysis in O’Keefe that the production requirements are “disjunctive” as to documents and
ESI and urging parties to renegotiate an agreement for production in “TIFF/JPEF formats” with sufficient
metadata fields to to organize the production).
271
The Comments to the ABA Model Rule 4.4(b) and the related ABA Opinions 05-437 (2005) and 06440(2006) take the position that whether the return of privileged information is required is committed to the
receiving lawyer’s discretion, subject to procedural and evidentiary law.
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In addition, the 2006 Amendments amended Rules 26(f) and 16(b) to encourage
parties to consider enter into binding agreements which resolve the waiver issue.
The
Committee Notes suggested use, for example, of a “quick peek” mechanism under which
parties would be permitted to examine proposed production without that fact constituting
a waiver.
These types of orders have been incorporated into protective orders issued
under the authority of Rule 26(c).
In 2008, Congress enacted Federal Evidence Rule 502 (“FRE 502”)272 to address
the uncertainty caused by varying standards for resolving privilege waiver issues and to
clarify that court orders governing the process would bind subsequent proceedings in
state and federal courts.273
The hope was that by providing predictability, it would
decrease the need for expensive and time-consuming pre-production privilege review.
Under FRE 502(b), a claim of privilege or work-product protection is not waived
if the disclosure is “inadvertent” and the holder “took [both] reasonable steps to prevent
disclosure” and to “rectify the error.” In Felman Production v. Industrial Risk Insurers,
however, the inadvertent production of purportedly privileged emails was held to support
a conclusion that reasonable pre-production precautions had not been taken within the
meaning of FRE 502(b).274 Other courts have also concluded that parties did not act
promptly in rectifying the inadvertent disclosure.”275
Commentators have criticized courts for demanding “near-perfection” and thus
preventing FRE 502 (b) from meeting the Congressional intent to “reduce the anxiety and
costs associated with privilege review.”276
The suggestion has been made that
advantage should be taken of FRE 502(d), which, in cases like Rajala v. McGuire
Woods277 have led courts to approve the barring of waiver whether or not compliance
with FRD 502(b) existed.
However, not all courts are prepared to agree that FRE
502(d) authorizes orders immunizing intentional disclosures from waiver.278
Local Rules and guidelines increasingly provide model orders and encourage the
use of FRE 502.
The proposed Model Stipulated Order for the Northern District of
272
Act of Sept. 19, 2008, PL 110-322, 122 Stat. 3537.
Analogues to FRE 502 have been widely adopted by States.
274
Felman Production v. Industrial Risk Insurers, 2010 WL 2944777, at *3-4 (S.D. W. Va. July 23,
2010)(citing “ridiculously high number of irrelevant materials and the large volume of privileged
communications produced”).
275
Jacob v. Duane Reade, 2012 WL 651536, at *5 (S.D. N.Y. Feb. 28, 2012)(“red flags” should have
prompted more diligent inquiry and considering “concerns of fairness and prejudice” since already used in
depositions).
276
See Paul Grimm et al., Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 RICH. J. L. &
TECH. 8, *2 & *50 (2011)(“Rule 502 will never reach its intended goal” of “encouraging use of computer
analytical review methodology if courts demand near-perfection in preproduction precautions”).
277
2010 WL 2949582, at *7 (D. Kan. July 22, 2010)(entering clawback order over objection which bars
waiver even if producing party “ha[s] not taken reasonable care to prevent disclosure”).
278
Potomac Electric Power v. United States, 2012 WL 4127637, at *6-7 (Ct. of Fed. Claims Sept. 19,
2012)(refusing to find good cause to enter protective order and distinguishing Rajala).
273
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California279 provides, for example, that “[p]ursuant to Fed. R. Evid. 502(d), the
production of a privileged or work-product-protected document, whether inadvertent or
otherwise, is not a waiver of privilege or protection from discovery in this case or in any
other federal or state proceeding.”280 However, many parties have apparently concluded
that the rule is not a panacea, resulting in it being underutilized.
(3.8) Cost Allocation/Taxation of Costs
The traditional American rule is that parties must absorb their own discovery
costs, although provision is made for “taxing” costs for prevailing parties.
Discovery Costs
The Supreme Court acknowledged in Oppenheimer Fund v. Sanders281 that that
courts have authority to protect a party from “undue burden or expense” by conditioning
discovery on payment of expenses under Rule 26(c).282 In Zubulake v. UBS Warburg
(“Zubulake I”),283 which preceded the 2006 amendments, the court distinguished between
production from “accessible” and “inaccessible” sources of ESI and somewhat arbitrarily
concluded that only production from the latter would be eligible for cost shifting. The
court cited to Oppenheimer and the “proportionality” limitations of Rule 26 as supporting
the development of “creative solutions” for balancing the broad scope of discovery with
cost-shifting.284
The court also announced a seven-factor test285 for determination of entitlement,
which it subsequently applied in Zubulake III.286
In doing so, it opined that a producing party should “always bear the cost of
reviewing and producing electronic data [and not the costs of attorney review].”287
279
[Model]Stipulated Order Re: Discovery of [ESI] for Standard Litigation, copy at
http://www.cand.uscourts.gov/eDiscoveryGuidelines (scroll to Model Stipulated Order).
280
See ¶ 8 (Documents Protected from Discovery).
281
Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978).
282
Id., at 358 (under the discovery rules “the presumption is that the responding party must bear the
expense of complying with discovery requests, but he may invoke the district court’s discretion under Rule
26© to grant orders protecting him from ‘undue burden or expense’ in doing so, including orders
conditioning discovery on the requesting party’s payment of the costs of discovery”).
283
Zubulake v. UBS Warburg (Zubulake I), 217 F.R.D. 309, 322 & 324 (S.D. N.Y. May 13, 2003).
284
Id., at 316 (“[b]y and large, the solution has been to consider cost-shifting forcing the requesting party,
rather than the answering party, to bear the costs of discovery”). The court noted (but later modified) the
eight factor test in Rowe Entm’t v. Willam Morris, 205 F.R.D. 421, 429 (S.D. N.Y. 2002).
285
Id., at 322. The factors include: 1) the degree to which the request is designed to cover germane
information; 2) the availability of information from different sources; 3) costs of production compared to
amount in controversy; 4) or resources of the party; 5) relative abilities to control costs; 6)importance of
issues; 7) relative benefits, etc.
286
Zubulake v. UBS Warburg (Zubulake III), 216 F.R.D. 280, 284 (S.D. N.Y. July 24, 2003)( “[i]t is worth
emphasizing again that cost-shifting is potentially appropriate only when inaccessible data is sought”).
287
Id. at 289-290.
December 30, 2012,
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Impact of the Amendments
Rule 26(b)(2)(B), added in 2006, borrowed the accessibility concept from
Zubulake and noted that if a court nonetheless orders production from inaccessible
sources, the court may attach “conditions.” The Committee Note explains that this may
involve shifting some or all of the costs of obtaining the ESI discovery.
Some courts
apply Zubulake I and III literally and confine cost-shifting to inaccessible sources of
information. This is probably not appropriate,288 although post-Amendment case law is,
split on the topic. Cases relying on Zubulake confine themselves to assessing cost
shifting only for inaccessible sources of production.289
In contrast, in Boeynaems v. LA Fitness Int’l,290 a District Court judge ordered
pre-payment of the costs of additional discovery where plaintiffs had “already amassed,
mostly at Defendant’s expense, a very large set of documents that may be probative as to
the class action issue.” The costs included “appropriately allocated” salaries of
individuals employed by the defendant including “managers, in-house counsel,
paralegals, computer technicians and others involved in the retrieval and production of
Defendant’s ESI.”291
Similarly, in Cannata v. Wyndham, a court ordered that if the numbers of search
terms required of the producing party exceeded 40, then the plaintiff would be required to
pay an increasing percentage of “[a]ll costs fairly attributable to the searches,
negotiations, document review, copying, including time devoted by law firm employees
and client employees.”292
In Treppel v. Biovail, a court held that it could condition an order of preservation
on the requesting party “assuming responsibility for part or all” of the expense of
preservation of information.293 At least one Local Rule lists preservation as among
those discovery costs to be discussed for possible allocation.294 In North Carolina, by
statute, the costs of preservation as well as production may be included in cost-shifting
decisions.295
288
The Committee Note to Rule 26, Subdivision (b)(2)(2006) states that the “limitations of Rule
26(b)(2)(C) [proportionality] apply to “all discovery of [ESI] including that stored on reasonably accessible
electronic sources.”
289
See, e.g., Helmert v. Butterball, 2010 WL 2179180, at *10 (E.D. Ark. May 27, 2010)(refusing to shift
costs since “a court should consider cost-shifting only when digital data is relatively inaccessible, such as in
backup tapes”).
290
2012 WL 3536306, at *8 (Aug. 16, 2012).
291
Id. at *12 (“discovery burdens should not force either party to succumb to a settlement that is based on
the cost of litigation rather than the merits of the case”).
292
2012 WL 528224, at *5 (D. Nev. Feb. 17, 2012)(ordering appointment of a Special Master to supervise
use of search terms with authority to allocate costs of e-discovery).
293
233 F.R.D. 363, 373 (S.D. N.Y. Feb. 6, 2006)( where the information is “costly to retain” but of “only
marginal relevance”).
294
D.N.J. CIV. RULE 26.1(d).
295
Rules Civ. Proc. G.S. § 1A-1, Rule 45(d)(4) [“NCRCP Rule 45”](the court may require the party
seeking discovery to “bear the costs of locating, preserving, collecting , and producing the [ESI]
involved”).
December 30, 2012,
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Rulemaking
Arguments persist in favor of a broad “requester pays” Federal Rule relating to
the “excessive” costs associated with discovery, especially e-discovery.
Lawyers for
Civil Justice, in particular, has long advocated adoption of a new approach to costs of the
producing party “premised on economic incentives.”296
One limiting observation,
however, has been that excessive discovery costs occur in a relatively small number of
cases, generally.297
The Rules Committee assigned the topic to its Duke Subcommittee, which is
apparently not prepared to recommend a proposed “requester pays” rule, but is
considering making the availability of cost shifting an even more “prominent feature of
Rule 26(c).”298
In addition, many Local Rules in many Federal District Courts
acknowledge the viability of potential cost-shifting.299
“Prevailing” Parties – Taxing Costs
A separate body of law applies to post-resolution submissions by prevailing
parties for taxation of costs. In Federal Courts, Rule 54(d) provides that costs other than
attorney’s fees “should be allowed to the prevailing party.” A similar approach applies
in some state courts.
Under 28 U.S.C. § 1920(4), a clerk may “tax as costs” the costs of “fees for
exemplification [or] the costs of making copies of any materials where the copies are
necessarily obtained for use in the case.”
One court300 has affirmed an award of
$530,000 for the costs of “utilizing the expertise of computer technicians in unearthing
the vast amount of [ESI] sought by Plaintiffs in discovery.”301 The court rejected the
argument that costs of an e-discovery vendor were simply for the convenience of the
party.
296
See, e.g., LCJ Comment, Now is the Time For Meaningful New Standards Governing Discovery,
Preservation, and Cost Allocation, March 15, 2012, 1, Addendum to Agenda Materials, copy at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV201203_Addendum.pdf. (scroll to Tab A-5, at 85 of 156).
297
Parties opposed to enactment of further discovery limitations cite the FJC’s study that the median cost of
litigation for defendants was $20,000 and the median cost for plaintiffs was $15,000. See Danya Shocair
Reda, The Cost-and-Delay Narrative in Civil Justice Reform: Its Fallacies and Functions, 90 OR. L. REV.
1085, 1104 (2012). Those favoring change cite an ACTL/IAALS Report which preceded the Conference.
See Emily C. Gainor, Initial Disclosures and Discovery Reform in the Wake of Plausible Pleading
Standards, 52 B.C. L. REV. 1441, 1450 (2011).
298
Sketches (October, 2012 Amendment), at 37-39 (Amended Rule 26(c)), copy at
http://law.duke.edu/sites/default/files/images/centers/judicialstudies/Panel_4-Background_Paper.pdf.
299
D. WYO. L.R 26.1(e )(2) & 26.2 (“cost sharing” should be discussed at Rule 26(f) conference).
300
Tibble v. Edison, 2011 WL 3759927, at *6 (C.D. Cal. Aug. 22, 2011).
301
Id. at *6.
December 30, 2012,
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However, in a similar context, the Third Circuit in Race Tire America v. Hoosier
Racing Tire302 held that only costs attributable to scanning and preparation of material for
production are taxable, rejecting the argument that de-duplication, preparation of TIFF
formats and bates numbering constitute “exemplification” or “copies.”303
The Court reduced reimbursable costs from $365,000 to $20,000 and also held
that Section 1920 was the sole source of authority to shift litigation costs by taxation. It
interpreted the reference to “copies” in Section 1920(4) as applying “only [to] the cost of
making copies” – not “all the steps that lead up to the production of copies.”
States
Until recently, it appeared that “requester pays” was the general rule in the New
York state courts.304 However, an appellate court in U.S. Bank v. Greenpoint Mortgage
Funding rejected that understanding and adopted Zubulake in a decision emphasizing
policy considerations.305 In contrast, an earlier California appellate decision rejected
Zubulake and required that production of ESI be at the requesting party’s expense.306
In Texas, a requesting party must pay “the reasonable expenses of any
extraordinary steps required” when ESI cannot be retrieved “through reasonable
efforts.”307 Texas practitioners argue that the rule encourages proportional discovery,
with parties and courts understanding their obligation to avoid abusive over-requests.
(4) Discovery Sanctions
Parties often challenge the performance of discovery obligations by opposing
parties. In assessing such challenges, courts wield considerable discretion, both in
determining if a violation of an applicable standard has occurred and, if it has, the nature
of the sanction or other remedy to be applied.
Rules 16, 37 and Rule 26(g) are frequently cited in conjunction with the inherent
power to sanction discovery abuse, as acknowledged by the Supreme Court in Chambers
v. NASCO.308 Zubulake IV”309 and V,310 for example, the court took the position that the
302
674 F.3d 158 (3rd Cir. March 16, 2012), cert. den. 133 S. Ct. 233 (Oct. 1, 2012).
A well written opinion covering much the same ground as Race Tire – but not citing it – is the decision
in Pacific Corp., 2012 U.S. Dist. LEXIS 174593 (D. Ore. Dec. 10, 2012).
304
See Lipco v. ASG Consulting, 4 Misc. 3d 1019, 2004 WL 1949062 (Sup. Ct. 2004).
305
U.S. Bank v. Greenpoint Mortgage Funding, 94 A.D.3d 58, 939 N.Y.S.2d 395, at 63-64 (N.Y.A.D. 1,
Feb. 28, 2012)(having the requester pay might ultimately deter the filing of meritorious claims).
306
Toshiba America v. Superior Court, 124 Cal. App. 4th 762, 770, 21 Cal. Rptr. 3d 532 (C.A. 6th Dist.
2004)(statute reflects legislative determination that burden is on producing party from the outset and is not
dependent on showing of undue burden or expense, in contrast to federal rules).
307
TX RULES OF CIVIL PROCEDURE, RULE 196.4 (“If the court orders the responding party to comply with
the request, the court must also order that the requesting party pay the reasonable expenses of any
extraordinary steps required to retrieve and produce the information”).
308
Chambers v. NASCO, 501 U.S. 32, 46 (1991)(sanctioning scheme of the rules does not displace “the
inherent power to impose sanctions”).
309
Zubulake v. UBS Warburg (Zubulake IV), 220 F.R.D. 212 (S.D. N.Y. Oct. 22, 2003).
303
December 30, 2012,
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authority to issue spoliation sanctions “arises jointly under the [Rules] and the court’s
own inherent powers.”311
Rule Based Sanctions
The range of possible sanctions under the Federal Rules is quite extensive,
although any sanction must be “just.”312 However, willfulness is often considered in
deciding whether a lesser sanction would adequately protect and deter.313
In Surowiec v. Capital Title Agency,314 the court awarded Rule 37(d) sanctions in
the form of fees and expenses where an “unreasonably narrow search” for ESI using only
Plaintiff’s name and escrow number” was deemed to be “inexcusable.” Similarly, in the
case of In re Delta/AirTran Baggage Fee Antitrust Litigation, the court assessed
sanctions under Rule 37(c) and Rule 26(g) where the party and its counsel failed to
ensure that all “collected hard drives were actually searched,” missed copies in an
evidence locker and “for its myriad inaccurate representations.”315
In Wingnut v. Katja Motion Pictures,316 the party was sanctioned under Rule
26(g) because its counsel had failed to make a reasonable investigation and effort to
certify that all information which was responsive was provided.317 In the case of In re
September 11th Liability Insurance Coverage,318 the court imposed substantial sanctions
jointly and severally under both Rules 11 and 37 for discovery misconduct of a party and
its outside counsel.
Inherent Sanctioning Authority
In Chambers v. NASCO,319 the Supreme Court explained that the “inherent
power extends to a full range of litigation abuses,”320 not just spoliation, and it may be
310
Zubulake v. UBS Warburg(Zubulake V), 229 F.R.D. 422 (S.D. N.Y. July 20, 2004).
220 F.R.D 212, at 216 & n. 12 and 229 F.R.D 422, at 430 (same).
312
The primary list of sanctions is found at Rule 37(b)(2)(A)(i-vii). Interestingly, adverse jury
instructions are not listed, perhaps that that they are typically associated with evidentiary rules, turn on
culpability findings and are invoked by use of inherent powers.
313
See, e.g., D. AK. LR 37(1)(b)(noting that dispositive sanctions will not be entered “unless the court
finds that the party acted willfully”).
314
790 F. Supp. 2d 997 (D. Arizona, May 4, 2011).
315
846 F. Supp.2d 1335 (N.D. Ga. Feb. 3, 2012)(imposing cost of attorney fees caused by failure and
ordering that discovery be re-opened). The court also sanctioned Delta for its counsel having failed to
make an adequate inquiry with respect to custodian produced information and backup tapes in violation of
Rule 26(g). Id. 1349-1351.
316
2007 WL 2758571 (C.D. Cal. Sept. 18, 2007).
317
Id., at *20 (finding sanctions to be mandatory because violation were without “substantial
justification”).
318
243 F.R.D. 114, 131-133 (S.D. N.Y. June 18, 2007)(allowing request for conference to discuss
allocation).
319
Chambers v. NASCO, 501 U.S. 32, 46 (1991)(sanctioning scheme of the rules does not displace “the
inherent power to impose sanctions”).
320
Id., at 46.
311
December 30, 2012,
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invoked “even if procedural rules exist which sanction the same conduct.”321
However, “if in the informed discretion of the court, neither the statute322 nor the Rules
are up to the task, the court may safely rely in its inherent power.”323
In applying inherent authority to sanctions, courts must proceed with “restraint
and discretion.”324 Most Circuits interpret their inherent sanctioning authority to apply
only when the underlying conduct can be fairly characterized as “bad faith conduct that
affected the litigation.”325 However, some circuits – such as the Ninth Circuit – appear
to confine that requirement to cases where attorney fees are being shifted as a sanction.326
In Metropolitan Opera Assn. v. Local Union 100,327 the court exercised its
inherent power to enter judgment against a defendant which “in bad faith failed[ed] to
abide by the rules and fail[ed] to conduct themselves honestly.”328
(5) Other Rulemaking/Pilot Projects
Other efforts to revise the Federal e-discovery rules - quite apart from those
dealing with a possible replacement for Rule 37(e)329 - have been assigned to the Duke
(“Koeltl”) Subcommittee of the Federal Rules Committee.
Many of the suggestions
date from a two-day conference held by the Rules Committee in 2010 at the Duke Law
School.330
At its November meeting, the Rules Committee instructed the Duke
Subcommittee to prepare a package of rule proposals (with draft Notes) for detailed
discussion at the Rules meeting in April 2013. Among the likely proposals, based on its
report to the November meeting, 331 are the following:
(1) Proportionality. The Subcommittee proposes to amend Rule 26(b)(1) so that
it limits the scope of discovery to nonprivileged matter “relevant to any party’s claim or
defense and proportional to the needs of the case considering [the factors transferred from
(c)(iii)].”
321
Id., at 49.
28 U.S.C. § 1927 – imposing sanctions on attorneys – applies to particularly egregious conduct (bad
faith) by an attorney which vexatiously prolongs litigation. See Amlong & Amlong v. Denny’s, 500 F.3d
1230, 1242 (11th Cir. Sept. 17, 2007)(where an attorney knowingly or recklessly pursues a frivolous claim
or engages n litigation tactics that needlessly obstruct the litigation of non-frivolous claims).
323
Id., at 50.
324
Id., at 44.
325
Rimkus v. Cammarta, 388 F. Supp.2d 598, 611 & 615 (S.D. Tex. Feb. 19, 1992).
326
Unigard Sed. Ins. v. Lakewood, 982 F.2d 363, 368, n. 2 (9th Cir. 1992).
327
211 F.R.D. 178 (S.D. N.Y. Jan. 28, 2003)(granting judgment for liability through use of inherent power
as well as under Rules 26(g), 37 and statutory grounds).
328
Id., at 231.
329
Covered in Section 2.3, supra.
330
A dedicated website managed by the US Courts contains the materials submitted at Duke. See
http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview/DukeWebsiteMsg.aspx.
331
Sketches (October, 2012 Amendment), copy at
http://law.duke.edu/sites/default/files/images/centers/judicialstudies/Panel_4-Background_Paper.pdf.
322
December 30, 2012,
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(2) Cooperation. The Subcommittee is prepared to recommend making favorable
references to inclusion of the need for cooperation in a Committee Note.332 A number of
Local Rules already cover expectations along similar lines.333
(3) Cost-Allocation.
The Subcommittee is “not enthusiastic about costshifting,” and has not proposed adoption of new rules334 but proposes to modify Rule
26(c) so that “cost-shifting [would become] a more prominent feature” of the rule.
Pilot Projects
There are a number of pilot projects in federal and state courts testing targeted
reforms in specific types of actions. For example, a Pilot Project involving Initial
Discovery Protocols for employment cases is underway at this time in the Federal
Courts.335
Colorado is conducting a pilot program testing business court concepts.336 Utah
has completely revised its discovery rules based on proportionality with allowable
discovery keyed to the amount in dispute. Early disclosure of information is also
required.337
Massachusetts and New Hampshire have experimented with the
ACTL/IAALS Pilot Rules which address e-discovery as part of a mix of innovations.338
Task Forces enabled by the Supreme Courts of Iowa and Minnesota have recently
completed comprehensive reviews. Minnesota rejected a meet and confer obligation to
discuss preservation, as advocated by ACTL/IAALS Pilot rule 7.339 The opposite result
occurred in Iowa.340 Florida is considering amendments to Uniform Guidelines for
332
Sketches (October, 2012 Amendment), supra, 42 (“once it is clear that Rule 1 applies to lawyers and not
simply the court”).
333
See S.D. ILL. L.R. Rule 26.1(d)(cooperative discovery arrangements . . are mandated); see also 28
U.S.C. § 473(a)(4)(listing as a goal of the CJRA of “encouragement of cost-effective discovery . . . through
the use of cooperative discovery devices”).
334
Addendum to Agenda Materials (March 2012), page 7 of 156.
335
Pilot Project Regarding Initial Discovery Protocols for Employment cases Alleging Adverse Action,
SU004 ALI-ABA 769 (2011).
336
See Netzorg and Frick, Significant Changes for Business Cases Under the Colorado Civil Access Pilot
Project, 41-JAN COLO. LAW. 29 (2012).
337
See, e.g., Matt Miller, Proposed Utah Rules May Be New Model for Discovery Standards, January,
2012, copy at http://discoverready.com/blog/proposed-utah-rules-may-be-new-model-for-discoverystandards/.
338
Roadmap for Reform Pilot Project Rules (2009), copy at
http://www.actl.com/AM/Template.cfm?Section=home&Template=/CM/ContentDisplay.cfm&ContentID=
4509.
339
Final Report, Minn. Sup. Ct. Civil Justice Reform Task Force (2011), 17-18 & 36, copy at
http://archive.leg.state.mn.us/docs/2012/other/120214.pdf.
340
Final Report, Iowa Sup. Ct. Civil Justice Reform Task Force (2012), 44-46, copy at
http://www.iowacourts.gov/wfdata/files/Committees/CivilJusticeReform/FINAL03_22_12.pdf.
December 30, 2012,
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Taxation of costs to specially allow costs related to e-discovery.341 Local rules and
guidelines for the conduct of e-discovery have also been issued by trial courts in some
states.342
(6) Evidentiary Issues
The Federal Rules of Evidence do not separately deal with ESI.
Courts
primarily rely on rules such as FRE 901 (“Authenticating or Identifying Evidence”)343
and FRE 803 (“Exceptions to the Rule Against Hearsay”) for evidentiary guidance.344 In
Lorraine v. Markel,345 the court identified five hurdles to the admission of ESI into
evidence: (1) relevance (2) authenticity (3) the hearsay rule (4) the “best evidence” rule
(5) and the rule balancing the probative value and the danger of unfair prejudice.
ESI is susceptible to alteration.
E-mail and text messages are not selfauthenticating. The mere fact that email purports to come from an individual with a
valid email address is not sufficient to authenticate its content. In Jimena v. UBS AG
Bank, a person bilked by a Nigerian bank transfer scam unsuccessfully sought to sue the
Bank on the basis of e-mail purporting to be from a bank executive.346 The court held
that Rule 902 requires some guarantees of trustworthiness which are not evident in
general email addresses.
Nonetheless, when distinctive information is contained in ESI offered into
evidence it may be sufficient to justify conditionally submitting it to the jury for its
ultimate finding of whether the matter in question is what its proponents claim it to be.347
The hearsay rule is not per se surmounted by the mere fact that email is routinely
used in a business context. In the Oil Spill cases, the court rejected the view that email is
“the modern equivalent of the interoffice memorandum” and required individual attention
to hearsay exceptions for each email.348
341
See Agenda, Civil Procedure Committee of the Florida Bar, Attachment D, at II (c), June 20, 2012; at
http://www.floridabar.org/cmdocs/cm210.nsf/c5aca7f8c251a58d85257236004a107f/28d1b76827c8755f85
257a1d006be72b/$FILE/AGENDA%20FULL%20June%202012.pdf.
342
See, e.g., Nassau County Guidelines for Discovery of Electronically Stored Information; copy at
http://www.nycourts.gov/courts/comdiv/PDFs/Nassau-E-Filing_Guidelines.pdf.
343
FRE Rule 901 (“authentication or identification” is “satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims”).
344
Jonathan D. Frieden and Leigh Murray, The Admissibility of electronic Evidence Under the Federal
Rules of Evidence (hereinafter “Survey”), 17 RICH. J. L. & TECH. 5, at *2 (2010)(the application of
“traditional evidentiary principles will nearly always lead to the correct result).
345
241 F.R.D. 534, 538 (D. Md. May 4, 2007); see also Grimm et al, Back to the Future: Lorrine v.
[Markel] and New Findings On the Admissibility of [ESI], 42 AKRON L. REV. 357 (2009).
346
2011 WL 2551413, at *3 (E.D. Calif. June 27, 2011)(granting summary judgment because while only a
prima facie evidence of authenticity is required).
347
Tienda v. State, 358 S.W. 3d 633, 640-641 (C.A. Tex. Feb. 8, 2012 )(collecting alternative methods of
establishing prima facie authentication).
348
2012 WL 85447 (MDL No. 2179, E.D. La. Jan. 11, 2012)(requiring parties to stipulate as to
admissibility of email and email strings and submit remaining specific issues for determination).
December 30, 2012,
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(7) Counsel Responsibility
Counsel may be sanctioned for discovery misconduct by virtue of the Federal
Rules, , 28 U.S.C. § 1927350 or by the use of inherent powers. As noted in the case of
In re September 11th Liability Insurance Coverage,351 “[d]iscovery is run largely by
attorneys, and the court and the judicial process depend upon honest and fair dealing
among attorneys.”352
349
Counsel may be sanctioned individually or jointly with their clients.353 Counsel
may also be subjected to disciplinary actions within the case itself or by referral to State
disciplinary authorities.
Courts are prepared to publicize perceived misdoings of
counsel for purposes of deterrence354 or may cite counsel for civil contempt355 or impose
monetary sanctions.
E-Discovery
The 2006 Amendments assume that the unique problems of e-discovery require
enhanced participation by counsel. In Board of Regents v. BASF,356 the court made it
clear that amendments “placed – on counsel – the affirmative duties to work with client”
to “cooperatively plan discovery with opposing counsel” under Rule 26(f).357
Rule
16(f) provides for sanctions for the failure of counsel to participate in “good faith” in the
scheduling process and Rule 37(g) permits assessment of expenses where counsel fails to
participate in good faith in preparing a discovery plan.
Counsel – including inside counsel358 - has the duty to advise and explain to the
client its obligations to preserve discoverable information, including ESI, which may be
relevant to litigation.359
The responsibility is said to include supervision of the
implementation of preservation obligations by their clients.
349
Rule 26(g) is the provision of choice in the discovery context.
Title 28, § 1927 (an attorney who “multiplies the proceedings in any case unreasonably and vexatiously
may be required to satisfy personally the excess costs” incurred because of such conduct).
351
243 F.R.D. 114 (S.D. N.Y. June 18, 2007).
352
Id. at 143.
353
Actions of an attorney are imputed to its clients for some purposes, but clients retain the right to institute
malpractice actions against counsel. See, e.g., Wade v. Soo Line, 500 F.3d 559, 564 (7th Cir. Aug. 29,
2007)(affirming dismissal as sanction and noting that if plaintiff “has a claim, his remedy now is a
malpractice suit).
354
See, e.g., Flaherty v. Filardi, 2007 WL 2398762, at *8, n. 6 (S.D. N.Y. Aug. 15, 2007).
355
In re Fannie Mae Securities Litigation, 2009 WL 21528, at *9 (C.A. D.C. Jan. 6, 2009)(ordering
production under contempt power as sanction for failing to meet production dates).
356
2007 WL 3342423, at *4 (D. Nebraska Nov. 5, 2007)(“plaintiff’s counsel were far from diligent in
complying with the court’s order direction the production” apparently because of lack of initial litigation
hold)).
357
Id., at *5 (also citing the duty to confer with opposing counsel to resolve disputes before filing certain
motions, “among others”).
358
Swofford v. Eslinger, 671 F. Supp.2d 1274 (M.D. Fla. Sept. 28, 2009)(“[defendants] in-house counsel,
Lane, failed to ensure that evidence be preserved”).
359
ABA Civil Discovery Standards (August 2004).
350
December 30, 2012,
Page 46 of 52
Zubulake V,360 for example, mandated “active supervision” by counsel, specifying
the “steps that counsel should take to ensure compliance with the preservation
obligation.”361 However, the court also noted that “[a]t the end of the day, however, the
duty to preserve and produce documents rests on the party.”362 Although Zubulake did
not result in sanctions for counsel, the opposite was true in the case of In Green (Fine
Paintings) v. McClendon, where counsel was sanctioned for a failure to institute a
litigation hold to protect relevant information from destruction.363
Some Local Rules and pilot programs impose affirmative duties on counsel to
become knowledgeable about ESI management by client information management
systems364 in order to “express the obligations of counsel as articulated in case law
beginning with the Zubulake cases.”365
Rule 26(g) requires counsel to sign discovery papers, thereby certifying
completeness of discovery responses as well as existence of a proper purpose in
conducting the discovery.
That signature certifies that the lawyer has made a
“reasonable effort” to assure that the client has provided all responsive information and
documents and “to determine beforehand the accuracy of any representations that
production is complete.”366
In Qualcomm v. Broadcomm,367 harsh sanctions against
outside counsel under those circumstances based on Rule 26(g) were set aside only
several years later when the court concluded that the required showing of bad faith had
not been made.368
Ethical Issues
Counsel has ethical and practical obligations to acquire the requisite skills and
knowledge369 necessary to advise on e-discovery, confidentiality of client information
360
Zubulake v. UBS Warburg LLC (“Zubulake V”), 229 F.R.D. 422, 432 (S.D. N.Y. July 20,
2004)(“[o]nce a ‘litigation hold’ is in place, a party and her counsel must make certain that all sources of
potentially relevant information are identified and placed on ‘hold’”).
361
Id., 229 F.R.D. 422, at 433-434.
362
Id. 436 (once the duty is made known to a party it is on notice and “acts at its own peril”).
363
Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 289 (S.D. N.Y. Aug. 13, 2009)(“counsel failed
to institute a litigation hold to protect relevant information from destruction”).
364
KANSAS GUIDELINES, ¶ 1 (“counsel should make a reasonable attempt to review their clients’ ESI to
ascertain the contents, including backup, archival and legacy date (outdated formats or media); copy at
http://www.ksd.uscourts.gov/ .
365
Susan Ardisson and Joseph Decker, Western District Adopts New Local Rule on Electronic Discovery,
11 No. 21 Lawyers J. 4 (2009).
366
Fendi Adele v. Filene’s Basement, 2009 WL 855955, at *8 (S.D. N.Y. March 24, 2009)(ordering “costshifting” as a sanction for “absurd” representation that there were no more documents to produce).
367
Qualcomm v. Broadcom, 2010 WL 1336937 (S.D. Cal. April 2, 2010)(holding that outside counsel had
not acted in bad faith in relying on clients, who had lied to them).
368
Qualcomm v. Broadcom, 2010 WL 1336937 (S.D. Cal. April 2, 2010)(noting that after two years of
review, it had concluded that while outside counsel made mistakes they had not acted in bad faith).
369
ABA MODEL RULES OF PROF. COND. 1.1.
December 30, 2012,
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and privilege reviews.370 Under the ABA Model Code 1.1 (competence), counsel has the
obligation to acquire the requisite skills and knowledge371 necessary to function in the ediscovery.
Amendments to the Comments to the ABA Model Code 1.1 in 2012
emphasize the need to appreciate the benefits and risks of relevant technology involved in
e-discovery.372
Model Rule 3.4(a) also specifies that a lawyer “shall not unlawfully [alter or
destroy material] having potential evidentiary value” nor “counsel or assist” another to do
any such act.”373 Analysis is particularly complicated, however, when a “team” effort of
inside and outside counsel is involved.374 As the author has pointed out elsewhere,375 the
specific role of retained counsel in implementing a team-based approach is determined by
the party, upon whom the obligation to preserve lies.
Counsel is also obligated to take care not to reveal confidential information unless
a client gives informed consent. Under the former New York Rules of Professional
Conduct, the use of the “cloud” for storage of client information as a backup was
approved by the Committee on Professional Ethics where the system was password
protected and the data stored was encrypted.376
370
Cardenas v. Dorel, 2006 WL 1537394, at *7 (D. Kan. June 1, 2006)(outside counsel must exercise some
degree of oversight over client’s employees charged with executing search).
371
ABA MODEL RULES OF PROF. COND. 1.1.
372
Ethics 20/20 Rule Changes Approved by ABA Delegates With Little Opposition [on August 6, 2012],
Bloomberg News, at http://www.bna.com/ethics-2020-rule-n12884911245/.
373
Disciplinary Counsel v. Robinson, 126 Ohio St. 3d 371, 933 N.E. 2d 1095 (S.C. Ohio Aug. 25,
2010)(imposing one-year suspension as sanction for, inter alia, destruction of firm documents).
374
Compare Casale v. Kelly, 710 F. Supp. 2d. 347, 365 (S.D.N.Y. April 26, 2010) (“responsibility for
adherence to the duty to preserve lies not only with the parties but also, to a significant extent, with their
counsel”) with Centrifugal Force v. Softnet Comm., 2011 WL 1792047, at *3 (S.D.N.Y. May 11, 2011)
(the obligation to preserve evidence is placed by the Second Circuit “on the ‘party,’ not on counsel” and is
met if the party has taken reasonable steps).
375
Thomas Y. Allman, Deterring E-Discovery Misconduct With Counsel Sanctions: The Unintended
Consequences of Qualcomm v. Broadcom, 118 Yale L.J. Pocket Part 161, 164 (2009)(“A client is ethically
entitled to limit the responsibility of retained counsel in regard to a discovery engagement, which may well
occur when teams of internal experts and vendors are involved”).
376
N.Y. Eth. Op. 842, 2010 WL 3961389, at *3 (Sept. 10, 2010)(approving use of “an online ‘cloud’
computer data backup system to store client files provide reasonable steps are taken and periodically
reconfirmed.
December 30, 2012,
Page 48 of 52
APPENDIX
State-by-State Summaries
The status reported below is (hopefully) current as of December, 2012, but the
reader would be wise to check and verify when interested in a specific state.
A
comprehensive list of the WESTLAW state versions are available in a “50 State” survey
provided by Thomson Reuters.377 Individual State summaries are also provided in a
useful data base maintained by Carole Basri and Mary Mack.378
WESTLAW indexes its procedural Rules – both Federal and State - in a single
database which is organized on a state by state basis. Thus, for a local Federal or a state
rule in Kansas, insert “KS-ST-ANN” in “Search for database,” then go to “Table of
Contents” and select, e.g., Local Rules for Civil or Bankruptcy in the Federal District; to
retrieve known individual Rules, insert “KS-RULES” in “Find this document,” scroll to
bottom and insert desired LR number.
KLGates has separate databases with helpful links directly to Federal District ediscovery initiatives379 and for State e-discovery rules and initiatives.380
1. Alabama. E-discovery amendments to the Alabama Civil Rules (“ARCP Rule __” or
“Ala. R. Civ. P. Rule ____”) became effective on February 1, 2010 with adoption of
essentially identical amendments to the similarly numbered Rules 16, 26, 33(c), 34 and
45.
2. Alaska. E-discovery amendments (“AK R RCP Rule ___” or “Alaska R. Civ. P.
____” became effective on April 15, 2009, adopting provisions equivalent to FRCP 16,
26, 33, 34, 37 and 45, similarly numbered in Alaska, but w/o a requirement of discussion
of preservation in Rule 26(f).
3. Arizona. E-discovery amendments (“AZ St. RCP R ____” or “Ariz. R. Civ. P. ___”)
became effective on January 1, 2008.
4. Arkansas. Arkansas adopted core e-discovery amendments in a single rule (“Ark. R.
Civ. P 26.1” or “ARCP Rule 26.1”), effective on October 1, 2009.
377
50 State Statutory Survey, Civil Laws/Civil Procedure Electronic Discovery, 0020 SURVEYS 4 (2012).
Carol Basri and Mary Mack, eDiscovery in State Courts: A work in Progress, EDISCCORP § 26.1
(2012).
379
Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues,
copy at http://tinyurl.com/LNw12-cp02.
380
Current Listing of States That Have Enacted E-Discovery Rules, copy at
http://www.ediscoverylaw.com/promo/state-district-court-rules/
378
December 30, 2012,
Page 49 of 52
5. California. E-discovery amendments (“C.C.P. § ____” ) or (“Cal Code Civ Proc §
___”) became effective on June 29, 2009 by amendments to the California Code of Civil
Procedure (via the “Electronic Discovery Act”). The California Rules of Court were
amended (“Cal. Rules of Court, Rule 3.724”) effective on August 14, 2009 to adopt a
“meet and confer” requirement regarding e-discovery, including issues relating to the
preservation of discoverable ESI, form of production, privilege claims and costs.
6. Colorado. Colorado has not enacted comprehensive e-discovery Amendments,
although recently amended C.R.C.P. 45 accommodates subpoenas of information in
“electronic form.”
7. Connecticut. E-Discovery Amendments were made to the Connecticut “Practice
Book,” effective January 1, 2012 (“Ct. R. Super CT Civ 13- ___”) by a series of ediscovery Amendments, which are cited, within Connecticut decisions, as “Practice Book
1998, § ___”.
8. Delaware. Effective May 1, 2010, The Superior Court established a Commercial
Litigation Division, which adopted an Appendix B, E-Discovery Plan Guidelines. On
January 19, 2011, the Court of Chancery issued Guidelines for Preservation of [ESI].
9. District of Columbia. As of November, 2010, e-discovery revisions were approved
by the Superior Court and transferred to the Court of Appeals for final approval.
10. Florida. On July 5, 2012, the Florida Supreme Court adopted amendments to the
Florida Rules of Civil Procedure (“Fla. R. Civ. P. Rule ___”)(effective September 1,
2012), largely based on the 2006 Amendments.
See Order, 2012 WL 2579681
(amended text).
11. Georgia. Status unknown.
12. Hawaii. Status unknown.
13. Idaho. E-Discovery Amendments to the Idaho Rules of Civil Procedure (“I.R.C.P.
Rule ____”) became effective in July, 2006, involving amendments to Rules 26, 33, 34
and 45.
14. Illinois. Illinois includes “retrievable information” in “computer storage” as within
the definition of “documents” in Supreme Court Rule 201(b) and Rule 214 requires its
production in printed form. In November, 2012 (eff. January 1, 2013), Illinois amended
Rule 201 to provide for clawback of inadvertently produced discovery materials at the
same time amending its Evidence Code to incorporate an equivalent to FRE 502.
15. Indiana. The Indiana E-Discovery Amendments (“In St Trial Procedure Rule ___ “)
became effective on January 1, 2008.
16. Iowa. E-Discovery Amendments in Iowa (“I.C.A. Rule ____”) or (“Iowa R. Civ. P.
____”) became effective May 1, 2008 based on the 2006 Amendments. Effective on
December 30, 2012,
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June 1, 2009, the Supreme Court adopted Iowa R. Evid. 5.502 (“I.C.A. Rule 502”), which
is essentially identical to Federal Evidence Rule 502.
17. Kansas. Effective July 1, 2008, Kansas adopted e-discovery amendments (“K.S.A.
“60-2__”) essentially identical to the 2006 Federal Amendments.
18. Kentucky. Status unknown.
19. Louisiana. In 2007, 2008 and 2010, the Legislature passed and the Governor signed
legislation which collectively provides comprehensive e-discovery Amendments (“LSAC.C.P. Art. ____”). In 2008, the Legislature added its counterpart to Rule 37(e) [Art.
1471(B)].
20. Maine. The Supreme Judicial Court adopted e-discovery effective August 1, 2009.
21. Maryland. E-discovery amendments (“MD Rules, Rule ____”) became effective on
January 1, 2008, primarily based on the provisions of the 2006 Amendments. .
22. Massachusetts. The Standing Advisory Committee on Rules of Civil Procedure of
the Supreme Judicial Court Rules Advisory Committee has completed work on a draft of
e-discovery rules and approval is pending.
23. Michigan. E-discovery Amendments became effective on January 1, 2009.
24. Minnesota. The Minnesota Supreme Court adopted e-discovery rules which mirror
the 2006 Amendments.
25. Mississippi. The Mississippi Supreme Court initially adopted a limited e-discovery
rule in 2003 (“M.R.C.P. Rule 26” or “Miss. R. Civ. P. 26(b)(5)”) and in October, 2012,
amended Rules 34 and 45 reflect aspects of the federal approach.
26. Missouri. Status unknown.
27. Montana. E-discovery amendments to the Montana Civil Rules (“M.R.Civ.P., Rule
__” or “MT R RCP Rule ____”) were adopted by Order of February 28, 2007 with
adoption of essentially identical amendments to the similarly numbered Rules 16, 26, 33,
34 and 45.
28. Nebraska. Limited E-discovery amendments to several Rules (“Neb Ct R Disc § 6334”) became effective in July, 2008 by action of Nebraska Supreme Court.
29. Nevada. Status unknown.
30. New Hampshire. Amendments dealing with e-discovery in one Rule (“N.H. Super.
Ct. R 62”) became effective in March, 2007.
December 30, 2012,
Page 51 of 52
31. New Jersey. The New Jersey Civil Rules, effective September 1, 2006, became the
first state to incorporate the provisions of the 2006 Amendments.
32. New Mexico. Limited E-discovery amendments (“NMRA, R 1-___”) became
effective in May, 2009 by action of the New Mexico Supreme Court.
33. New York. There have been no changes to Article 31 of the Civil Practice Law and
Rules (“McKinney’s CPLR § ____”) to accommodate e-discovery.
However, the
Uniform Rules for the New York State Trial Courts (“N.Y. Ct. Rules, § ___”) or (NY
CLS Unif Rules, Trial Cts § ___” were amended to deal with counsel and party
responsibilities in connection with preliminary conferences (Sec. 202.12(b) & (c)) in the
regular and the Commercial Division of the Supreme Court (Sec. 202.70(g)).
34. North Carolina. The legislature amended the Rules of Civil Procedure, effective
October 2011, to accommodate electronic discovery [Rules Civ. Proc., G.S. § 1A-1,
Rules 16, 26, 33, 34, 37 and 45 (2011)].
35. North Dakota. Amendments based on the 2006 Amendments became effective
March 1, 2008.
36. Ohio. Amendments to the Ohio Civil Rules (“[OH] Civ. Rule __”) 16, 26, 34, 37
and 45, largely based on the 2006 Amendments, became effective July 1, 2008. .
37. Oklahoma. Oklahoma enacted e-discovery rules effective November 1, 2010 ((“12
Okl. St. Ann. § ___”).
38. Oregon. Oregon enacted a single e-discovery amendment (with two changes)
effective January 1, 2012 (“OR Rules Civ. Proc., ORCP 43”), as recommended in 2010.
39. Pennsylvania. The Pennsylvania Supreme Court enacted limited changes (“Pa. R.
C.P. No. ____”) by Order dated June 6, 2012, which became effective on August 1, 2012.
40. Rhode Island. Status unknown.
41. South Carolina. The Supreme Court adopted and sent to the Legislature E-discovery
Amendments (“SC R RCP Rule ___”) which became effective in April, 2011.
42. South Dakota. Status unknown.
43. Tennessee. E-discovery amendments (“TN Civil Procedure Rule ___”) became
effective on July 1, 2009. Effective July 1, 2010, Tenn R. Evid. Rule 502 was adopted
based on Fed. R. Evid. 502(b).
Texas. As part of the reform of Texas Civil Procedure code in 1999, a provision was
added dealing with electronic or magnetic data (“Tx. Rules of Civil Procedure, Rule
196.4”). See generally, Hecht and Pemberton, A Guide to the 1999 Texas Discovery
Rule Revisions (Nov. 1998), copy at http://www.adrr.com/law1/rules.htm. Texas also
44.
December 30, 2012,
Page 52 of 52
enacted a provision at the same time providing that production is not a waiver if a party
acts to make the assertion within 10 days of actual discovery that production was made.
Tex. R. Civ. P. 193.3(d).
45. Utah. The Utah Supreme Court approved a set of e-discovery rules based on the
2006 Amendments, effective on November 1, 2007. In 2011, a comprehensive revision
of the discovery rules went into effect under which, inter alia, the burden of establishing
proportionality and relevance “always” placed on the party “seeking discovery.”
46. Vermont. Vermont promulgated rules based on the 2006 Amendments in May,
2009.
47. Virginia. Effective January 1, 2009, the Civil Rules were revised to include the
2006 Federal Amendments, except for the safe harbor provisions and “meet and confer”
obligations.
48. Washington. Effective on September 1, 2010, Washington adopted a modified
version of FRE 502, styled ER 502.
49. West Virginia. Status unknown.
50. Wisconsin. On April 23, 2010, a divided Supreme Court of Wisconsin adopted ediscovery amendments.
51. Wyoming. The Wyoming Supreme court amended its Civil Rules to conform to the
2006 Amendments (“Wy R RCP Rule ___”) in its Rules 26, 33, 34, 37 and 45.