Reality of Litigation: Discovery August 19, Peter S. Vogel, Adjunct. Copyright, Peter S. Vogel,

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1 Reality of Litigation: Discovery August 19, 2013 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel,

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6 Lawsuit Through Trial DISCOVERY Closing Argument Case Filed Interrogatories Requests for Production Depositions Requests for Admission Closing Argument Trial

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15 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. 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.

16 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. 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.

17 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. 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.

18 196.4 Electronic or Magnetic Data. To obtain discovery of data or information that exists in electronic or magnetic form, the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must produce the electronic or magnetic data that is responsive to the request and is reasonably available to the responding party in its ordinary course of business. If the responding party cannot - through reasonable efforts - retrieve the data or information requested or produce it in the form requested, the responding party must state an objection complying with these rules. 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.

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22 Federal Rules of Civil Procedure

23 Federal Rules of Civil Procedure

24 What Makes ediscovery Different? +95% of all documents are electronic Less than 1/3 of electronic documents are printed 60% of business-critical information is stored with corporate systems

25 6 Big Bang Theory of the Internet Peter S. Vogel, Adjunct Copyright, Peter S. Vogel,

26 Big Bangs Internet Topics 1 st 1890 Census 2 nd World War II 3 rd IBM PC 4 th Browser 5 th - Napster 6 th Social Media Future Big Bangs

27 History of Computing Abacus Blaise Pascal ( ) Charles Babbage ( )

28 History of Computing 1801 Jacquard s Loom Joseph-Marie Jacquard ( ) Programmed Card

29 History of Computing 1801 Jacquard s Loom Joseph-Marie Jacquard ( ) Programmed Card Loom

30 History of Computing 1801 Jacquard s Loom Joseph-Marie Jacquard ( ) Programmed Card Loom Woven Fabrics

31 1st Big Bang >>>1890 Census Dr. Herman Hollerith ( )

32 Punch Card Machine

33 EAM Card Programmer Calculator

34 EAM Plug Board

35 2nd Big Bang >> 1945 World War II Invention of Computers

36 4 Generations of Computers

37 Mainframes

38 Minicomputers

39 Microprocessor

40 Today s Computers Servers Personal Computers Phones Tablets

41 Altair

42 Sinclair

43 Tandy Radio Shack TRS-80

44 Texas Instruments TI 99/4A

45 Apple III

46 3rd Big Bang>> 1981 IBM s Personal Computer

47 Before IBM PC Two Major Operating Systems 1. Apple Computer 2. CP/M Operating System owned by Digital Research

48 Microsoft v. CPM

49 IBM Plan for the PC Intel microprocessors Control PC market by limiting OS to only IBM built machines using PC-DOS (Disk Operating System) IBM lost control of the Basis Input/Output System (BIOS) to Phoenix Systems Clone market developed Compaq, HP, etc Microsoft OS ran on Clones in competition with IBM using a version then call MS-DOS

50 Xerox Star

51 Apple Lisa

52 Apple Macintosh

53 Windows 1.0

54 Windows 2.1

55 Windows 3.1

56 Evolution of Windows Xerox Research Labs created GUI (Graphic User Interface) with mouse sold Star Xerox licensed Apple the GUI 1985 Apple licensed Microsoft GUI for Windows 1.0 Apple sued Microsoft for Windows 2.1 for copyright infringement, and later Windows th Circuit held that GUI cannot be copyrighted

57 Sputnik ARPANET (DARPA) (Advanced Research Projects Agency NETwork, later Defense Advanced Research Projects Agency) $3m grant for time-sharing Local Area Networks (LAN) Personal Computer (PC) Transmission Control Protocol/Internet Protocol (TCP/IP) Domain Name System (DNS) Unix operating system Graphical User Interface (GUI) Browsers - Netscape v. Explorer

58 1995 Federal Networking Council Defined the term Internet "Internet" refers to the global information system that (i) is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons; (ii) is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IPcompatible protocols; and (iii) provides, uses or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure described herein.

59 4th Big Bang>>> 1995 Microsoft s Browser

60 July 4, 1997 Mars -Pathfinder

61 Internet System Consortium

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63 5th Big Bang>>> 1999 Napster

64 No CDs MP3 CDs Host & Receive MP3 CDs Host & Receive

65 A&M Records et al v. Napster

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74 6th Big Bang>>> 2002 Social Media

75 Finding ESI (Electronically Stored Information) on the Internet Facebook Myspace YouTube LinkedIn Secondlife Wikipedia Cloud Services Webmail Gmail Hotmail AOL

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85 Millions, Billions, Trillions ~400+ Million Tweets per Day

86 Millions, Billions, Trillions ~500+ Billion s per Day

87 Millions, Billions, Trillions ~8 Trillion text messages in 2012

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92 Congress passed the SCA to prohibit a provider of an electronic communication service from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.

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95 Electronic Communication Service (ECS)

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97 Remote Computing Service (RCS)

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99 Finding ESI (Electronically Stored Information) Correspondence & drafts Financial data Databases Legacy systems

100 Records Retention Policies A must for every organization Each industry will have unique requirements Lawyers should participate in the development Period compliance reviews are essential MALPRACTRICE DEFENSE!

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102 ediscovery from the CIO/CTO Rule 30(b)(6) witness Assistance with responding to Requests for Admissions Requests for Production Interrogatories

103 IT Disaster Recovery Data file backups are for possible disasters Backup media most often magnetic Backup designed for disasters not discovery Generally reconstruct the entire system, not specific data

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106 Federal Pocket Guide for Judges

107 Contents Introduction, p.1 What Is Electronically Stored Information and How Does It Differ from Conventional Information? p.2 Early Consideration of ESI Rules 26(f) and 16, p.4 ESI and Rule 26(a)(1) Disclosures, p.5 ESI and Scope of Discovery Under Rules 26(b)(1) and 26(b)(2), p.6 Allocation of Costs, p.10 Discovery from Nonparties, p.12 Form of Production, p.13 Waiver of Privilege or Work-Product Protection, p.14 Preservation of ESI, p.16 Spoliation and Sanctions, p.18 Conclusion, p.20 Glossary, p.22

108 Federal Pocket Guide for Judges, 2Ed.

109 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

110 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

111 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 Market research has found that the average employee sends or receives more than 100 electronic messages per working day, which translates into more than How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be 2,400,000 required? 8 messages a year for an organization of 100 employees. What continuing consultation between parties should be required? 10

112 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 Merely opening a digital file changes How does a judge promote early consideration of ESI discovery issues? 6 information about that file, and What matters should be discussed at the Rule 26(f) messages conference? 7 may be automatically deleted after a certain period unless What preparations for the Rule 26(f) conference should be required? 8 steps are taken to avoid it. What continuing consultation between parties should be required? 10

113 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 Deleting What is an the electronic judge s role document in the discovery does of ESI? not 4 necessarily How does a get judge rid promote of it, as early throwing consideration away of or ESI shredding discovery a issues? paper 6 document would. An electronic document What matters may should be recovered be discussed from at the the Rule hard 26(f) drive or server, conference? to the extent 7 it has not been overwritten, and may What be available preparations on for the computers Rule 26(f) conference of other should people be required? 8 or on archival media or backup tapes used for disaster recovery purposes. What continuing consultation between parties should be required? 10

114 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 Deleting What is an the electronic judge s role document in the discovery does of ESI? not 4 necessarily How does a get judge rid promote of it, as early throwing consideration away of or ESI shredding discovery a issues? paper 6 document would. An electronic document What matters may should be recovered be discussed from at the the Rule hard 26(f) drive or server, conference? to the extent 7 it has not been overwritten, and may What be available preparations on for the computers Rule 26(f) conference of other should people be required? 8 or on archival media or backup tapes used for disaster recovery purposes. What continuing consultation between parties should be required? 10

115 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 the How dynamic does a judge nature promote of early ESI consideration makes it vital of ESI that a litigant discovery or issues? potential 6 litigant institute a litigation hold What to matters preserve should information be discussed the that Rule may 26(f) be conference? 7 discoverable, whenever litigation is reasonably What preparations for the Rule 26(f) conference should be anticipated and that can be well before a required? 8 complaint is filed or an answer is served. What continuing consultation between parties should be required? 10

116 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

117 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 Judges can minimize such disputes by What matters should be discussed at the Rule 26(f) encouraging lawyers and parties to cooperate conference? 7 with one another and to identify, in the earliest What preparations for the Rule 26(f) conference should be stages required? of the 8 litigation, potential problems in the discovery of ESI. What continuing consultation between parties should be required? 10

118 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 The judge needs to work with the lawyers to What matters should be discussed at the Rule 26(f) ensure that planned discovery is reasonable and conference? 7 proportional to the needs of the case, and may What preparations for the Rule 26(f) conference should be need required? to intervene 8 before misunderstandings lead What to continuing disputes consultation and create between sig- nificant parties should cost be and delay. required? 10

119 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

120 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 the court should encourage parties to discuss this What topic preparations and to ask for the the Rule court 26(f) conference to include should such be agreements required? 8 in Rule 16(b) orders. What continuing consultation between parties should be required? 10

121 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

122 Contents What matters should be discussed at the Rule 26(f) conference? 7 whether there will be discovery of ESI at all; disclosures required under Federal Rule of Civil Procedure 26(a)(1), if any, and their timing; what types or categories of discoverable information each party has in electronic form, and where and on what type of media that information is likely to be found; the steps each party will take to preserve different types or categories of ESI;3

123 Contents What matters should be discussed at the Rule 26(f) conference? 7 the number and identity of key players who are knowledge- able about potentially relevant ESI and on whose servers or devices ESI is likely to be found; what methods will be efficient in identifying discoverable ESI (e.g., sampling, key word searches); the anticipated schedule for production;

124 Contents What matters should be discussed at the Rule 26(f) conference? 7 the form in which such information is ordinarily maintained and whether it will be produced in that form usually known as native format or in another form; the scope of discovery of different categories of ESI, such as messages; whether relevant information has been deleted, and if so, whether one or more parties believe deleted information needs to be restored and who will bear the cost of restoring it;

125 Contents What matters should be discussed at the Rule 26(f) conference? 7 whether any information is not reasonably accessible, the burdens and costs of retrieving that information, why it is needed, and any conditions that should be placed on its production, including who will bear the cost; and whether relevant information is in the possession of nonparties from whom discovery under Rule 45 will be required.

126 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

127 For the Rule 26(f) conference Contents to be effective, attorneys must be familiar with their clients information Preface and introduction systems. to This the familiarity second edition usually 1 requires understanding what information is available; how it may be altered or made unavailable What is the judge s by routine role the computer discovery of operations; ESI? 4 How does a judge promote early consideration of ESI and what is entailed in identifying, preserving, discovery issues? 6 collecting, reviewing, and producing it. What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

128 Contents Preface and introduction to the second edition 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 2 What is the judge s role in the discovery of ESI? 4 How does a judge promote early consideration of ESI discovery issues? 6 What matters should be discussed at the Rule 26(f) conference? 7 What preparations for the Rule 26(f) conference should be required? 8 What continuing consultation between parties should be required? 10

129 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

130 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 It is How usually does a judge most limit helpful the scope for of ESI the discovery judge to to that hold proportional live Rule to the 16 needs conferences of the case? 13 with the What type of information is not reasonably accessible? 15 attorneys present court or in chambers. At When does good cause exist to allow the discovery of not a minimum, the judge should require the reasonably accessible information? 16 attorneys What factors to are participate relevant to allocating by telephone costs? 17 or videoconference. How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

131 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

132 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 Rule 26(a)(1) requires disclosure of the identities of individuals What type of information likely to have is not discoverable reasonably accessible? 15 information, When does good as well cause as exist a to copy allow of, the or discovery a description of not reasonably accessible information? 16 by category and location of, all documents, electronically What factors are stored relevant information, to allocating and costs? tangible 17 things How may that Rule the 26(g) disclosing sanctions party be used may to promote use to cooperation and proportionality in ESI discovery? 20 support its claims or defenses, unless they are to be used solely for impeachment.

133 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

134 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 To ensure that the proportionality requirement is met, a judge may need to review the parties proposed What factors production are relevant requests. to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

135 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

136 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not A judge reasonably might accessible require, among information? other things, 16 an affidavit from a person with knowledge of the relevant systems, or What factors are relevant to allocating costs? 17 from a qualified third party, detailing the procedures, anticipated How may costs, Rule 26(g) and sanctions foreseeable be used burdens to promote of producing cooperation and proportionality in ESI discovery? 20 the ESI, presented in the context of the party s resources.

137 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

138 Contents Such discovery may involve taking depositions of those knowledgeable about the responding party s information systems; some form of inspection of What matters should be covered during the Rule 16 the conferences data sources; and included or requiring in Rule 16(b) the scheduling responding orders? 11 party to conduct a sampling of information in the sources identified as not reasonably accessible. What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

139 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

140 Contents In such cases, it may be appropriate to shift at least some of the production costs from the producing party to the requesting party. Although What matters should be covered during the Rule 16 Rule conferences 26(b)(2)(B) and included does in not Rule contain 16(b) scheduling explicit orders? 11 language authorizing cost shifting, the Advisory Committee note to the rule clearly anticipates the shifting of costs of producing information that is not reasonably accessible. What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

141 Contents What matters should be covered during the Rule 16 conferences and included in Rule 16(b) scheduling orders? 11 What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

142 Contents when necessary, sanctions for disproportionate or uncooperative discovery tactics can help curb abuses and encourage attorneys to be more What matters should be covered during the Rule 16 thoughtful conferences about and included the legitimacy in Rule 16(b) of scheduling discovery orders? 11 requests, responses, and objections. What disclosures of ESI are required under Rule 26(a)(1)? 12 How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 13 What type of information is not reasonably accessible? 15 When does good cause exist to allow the discovery of not reasonably accessible information? 16 What factors are relevant to allocating costs? 17 How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 20

143 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

144 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 Nonparty How should discovery and, privilege waiver on issues occasion, be handled? discovery 24 from What parties are clawback can be and complicated quick peek agreements? by the Stored 24 Communications Act (SCA), the SCA How can a court shield parties from waiving a privilege establishes through inadvertent various disclosure? definitions 25 of providers of communications How should a court services test assertions and of prohibits privilege? or 25 limits disclosures How Federal of Rule ESI. of Attempts Evidence 502 to used enforce to reduce subpoenas cost and on delay? providers 26 of services can be barred or limited by the SCA.

145 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

146 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 ESI can be produced as a TIFF or PDF file, which What are clawback and quick peek agreements? 24 is essentially a photograph of an electronic How can a court shield parties from waiving a privilege document. Alternatively, ESI can be produced in through inadvertent disclosure? 25 native format, that is, the form in which the How should a court test assertions of privilege? 25 information was created and is used in the normal course of the producing party s activities. How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

147 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 Rule 34 addresses the issue of the form of ESI and recognizes What are that clawback different and forms quick of peek production agreements? may be 24 appropriate How can a for court different shield parties types of from ESI waiving and for a different privilege purposes through for inadvertent which the disclosure? information 25 is needed. It permits the How requesting should a party court to test designate assertions the of privilege? form or forms 25 in which How it is wants Federal ESI Rule produced, of Evidence and 502 it requires used to reduce the cost and responding delay? 26 party to identify the form in which it intends to produce the information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies.

148 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

149 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

150 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege Under through what inadvertent is commonly disclosure? called a 25 clawback agreement, the How responding should a party court test typically assertions reviews of privilege? the material 25 for privilege How is or Federal protection Rule of before Evidence it is 502 produced, used to reduce but the cost parties and also delay? agree 26 to a procedure for the return of privileged or protected information that is inadvertently produced.

151 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege Alternatively, through inadvertent under quick disclosure? peek 25 agreements, which have been How used should less a court frequently, test assertions the responding of privilege? party 25 provides requested How is Federal material Rule without of Evidence a thorough 502 used review to reduce for privilege cost and or protection, delay? 26 but with the explicit understanding that making it available to the requesting party does not waive any privilege or protection that may apply.

152 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

153 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 If the parties are able to agree, the court should include How is Federal Rule of Evidence 502 used to reduce cost and their agreement in the case-management order or in a delay? 26 separate order.

154 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

155 Contents The accepted practice is, of course, in camera inspection of the What material principles by apply the judge. to discovery In cases from involving nonparties ESI, under however, Rule 45? the 21 judge may have to decide whether the sheer volume In what of information forms requires should ESI new be methods produced? of 22 review, such How as should sampling privilege or, in and the waiver rare case, issues the be use handled? of a special 24 master. What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

156 Contents What principles apply to discovery from nonparties under Rule 45? 21 In what form or forms should ESI be produced? 22 How should privilege and waiver issues be handled? 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

157 Contents Rule 502, adopted in 2008, limits the waiver of attorney client What privilege principles or work-product apply to discovery protection from nonparties by inadvertent under disclosures. Rule 45? 21 Most important for ESI discovery management, In what form Rule or forms 502(d) should allows ESI be a court produced? to order 22 that production How should in the privilege case and will waiver not waive issues privilege be handled? or workproduct protection. 24 What are clawback and quick peek agreements? 24 How can a court shield parties from waiving a privilege through inadvertent disclosure? 25 How should a court test assertions of privilege? 25 How is Federal Rule of Evidence 502 used to reduce cost and delay? 26

158 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

159 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Rule 502, adopted in 2008, limits the waiver of attorney client privilege or work-product protection by inadvertent disclosures. Most important for ESI discovery management, Rule 502(d) Glossary allows 35 a court to order that production in the case will not waive privilege or work-product protection.

160 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

161 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? The 31 authority to impose sanctions for spoliation arises under Conclusion the Federal 34 Rules of Civil Procedure and, if the rules do not apply, the court s inherent powers. Determining Glossary 35 whether sanctions are warranted for spoliation of ESI often presents a challenge to a court, given the ease with which ESI can be either intentionally or inadvertently deleted or modified. Rule 502, adopted in 2008, limits the waiver of attorney client privilege or work-product protection by inadvertent disclosures. Most important for ESI discovery management, Rule 502(d) allows a court to order that production in the case will not waive privilege or work-product protection.

162 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35 Rule 502, adopted in 2008, limits the waiver of attorney client privilege or work-product protection by inadvertent disclosures. Most important for ESI discovery management, Rule 502(d) allows a court to order that production in the case will not waive privilege or work-product protection.

163 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

164 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

165 Contents In the end, judges must actively manage electronic discovery, raising points for consideration by parties rather than Litigation waiting holds: for parties How can to the present court disputes promote that the parties can delay a case, reasonable add to its efforts costs, to preserve and distract ESI? from 27 its merits. Such active What management are the standards can for help finding ensure spoliation the expeditious and the criteria and fair for conduct imposing of sanctions? discovery 30 involving ESI. Rule 502, adopted in 2008, limits the waiver of attorney client privilege or work-product protection by inadvertent disclosures. Most important for ESI discovery management, Rule 502(d) allows a court to order that production in the case will not waive privilege or work-product protection. Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

166 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

167 Contents Litigation holds: How can the court promote the parties reasonable efforts to preserve ESI? 27 What are the standards for finding spoliation and the criteria for imposing sanctions? 30 Rule 502, adopted in 2008, limits the waiver of attorney client privilege or work-product protection by inadvertent disclosures. Most important for ESI discovery management, Rule 502(d) allows a court to order that production in the case will not waive privilege or work-product protection. Where can a judge find additional information and guidance? 31 Conclusion 34 Glossary 35

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170 Reality of Litigation: Discovery August 19, 2013 Peter S. Vogel, Adjunct Copyright, Peter S. Vogel,