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Keep E-Discovery Costs From Torpedoing Litigation Budgets | Law.com

September 15, 2011 By Leave a Comment

Opposing counsel has just served requests for production,seeking electronic data from the past 10 years, including data stored on legacy systems, backup tapes, and disaster recovery systems. At first glance, the recovery costs of this data alone could exceed the value of the suit. So what’s the next step in-house counsel should take?

Rely on the procedural rules. Texas Rule of Civil Procedure 196.4 may provide relief. Similar to Federal Rule of Civil Procedure 26(b)(2), Texas Rule 196.4 requires the responding party to produce responsive electronic information “reasonably available to the responding party in its ordinary course of business.” However, a responding party is not required to produce electronic information that it cannot retrieve or produce “through reasonable efforts.”

Texas Rule 196.4 contains a mandatory cost-shifting provision triggered when the electronic information requested is not “reasonably available” to the responding party. Under the rule, when a court orders the production of such information, it must “also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information.”

To invoke the cost-shifting provision of Rule 196.4, the responding party must object to the request for production on the ground that the requested information is not reasonably available. Under Rule 193.4, which governs objections and assertions of privilege, either party may seek a hearing on the objection, at which time the responding party must prove that the requested electronic information is not reasonably available in the ordinary course of business.

Understand the information systems. Understanding the client’s information systems is critical for maintaining or challenging an objection to a request for electronic information.

There are three primary sources of potentially responsive electronic information: e-mail, loose file documents, and accounting data stored in database form. Counsel should know where its client stores this information and how the storage systems operate. In addition, knowledge of past systems is important, because old systems and equipment may contain responsive data.

Counsel also should be familiar with any backup systems in place, including the frequency of backup tape rotation, the redundancy from one backup session to the next, and the effort required to restore different types of information from the backup systems. Although this information is critical to a responding party’s objection, there is no bright-line test for determining whether stored information is or is not reasonably available.

via Keep E-Discovery Costs From Torpedoing Litigation Budgets.

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Who Has to Pay for E-Discovery? | Law.com

July 12, 2011 By Leave a Comment

The prevalence and cost of electronic discovery have grown substantially within the past 10 years. Many parties, particularly corporate defendants, have become increasingly concerned and frustrated after having to pay for e-discovery searches to respond to requests that seem overly broad or to be pure fishing expeditions.

While it may not always be possible to avoid the expense of e-discovery, the Texas Rules of Civil Procedure and the Federal Rules of Civil Procedure provide for shifting the cost of production to the requesting party under certain circumstances.

Federal Rule of Civil Procedure 26(b)(2)(B) states:

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the 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.

The advisory committee notes from the 2006 amendments provide factors to guide the good-cause analysis: 1. the specificity of the request; 2. the quantity of available information from other sources that may be easily accessible; 3. the failure to produce once easily accessible information that is no longer easily accessible; 4. the likelihood of locating relevant information that cannot be found on easily accessible sources; 5. the prediction that further information will be relevant and important; 6. the importance of issues at stake in the litigation; and 7. the parties’ individual resources.

Therefore, under the federal rules, the party seeking discovery first must show that good cause exists for that discovery if the responding party objects on the grounds that the information sought is not reasonably accessible.

Once the requester shows good cause, the court nevertheless may limit the discovery or require the requesting party to pay for the retrieval of the electronically stored information by considering the following factors and specifying “conditions for discovery.” According to the advisory committee notes:

via Who Has to Pay for E-Discovery?.

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Tackling E-Discovery In The Federal Rules Of Civil Procedure

May 16, 2011 By Leave a Comment

The landscape of electronic discovery is about to undergo major changes that litigators and judges agree are sorely needed. At meetings on April 4-5 in Austin, Texas, the Advisory Committee on Civil Rules (ACCR) decided the Federal Rules of Civil Procedure (FRCP) should be amended to include guidance about the preservation of electronic evidence once litigation is reasonably contemplated or has been filed. Rules about spoliation should also be addressed, the committee noted.

According to Tom Allman, an adjunct professor at the University of Cincinnati College of Law whose legal background includes years as general counsel for BASF, the committee ‘wants the federal rules to reflect the reality of the preservation and production of discoverable evidence.’

When the FRCP underwent a major overhaul in 2006, the ACCR did not address the question of preservation of evidence in the technological age. ‘Just since 2006, however, the committee is rethinking its decision not to rule on the matter,’ says Allman, a staunch proponent of progressive rules of civil procedure, and a regular attendee and speaker at conferences and seminars nationwide focusing on electronic discovery. He is also a well-respected mouthpiece for litigators and judges who cannot attend those events personally but want their opinions about e-discovery heard. At the recent ACCR meetings, Allman shared practical comments from both corporate and outside counsel on how the l

via Tackling E-Discovery In The Federal Rules Of Civil Procedure.

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The Sedona Conference® Announces Publication of The Sedona Conference® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation

April 12, 2011 By Leave a Comment

The Sedona Conference® announced today that its Working Group on Electronic Document Retention and Production (Working Group 1) has released for public comment The Sedona Conference® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation.

In its latest Commentary, The Sedona Conference® recommends “best-practice” approaches to requesting and producing information stored in databases, and explores the diverse and complicated ways in which database information can be stored – and why those ways have made developing universal best practice approaches to electronic database discovery a daunting task. A copy of The Sedona Conference® Database Principles can be found at www.thesedonaconference.org – it is the first item under “Recent Publications” on the home page.

Commentary Editor-in-Chief Conrad J. Jacoby, founder of electronic discovery consulting firm efficientEDD, said “The ever-growing number of discovery disputes over databases, combined with a lack of guidance and precedent, made it clear that The Sedona Conference® had an opportunity to offer attorneys and legal professionals an orientation that they could use as the basis for more effective discussion and treatment of this critical discoverable information. We hope that The Sedona Conference® Database Principles will assist both requesting and responding parties by helping them focus discovery requests, better articulate their needs and limitations, and ultimately avoid disputes over scope, format of production, and authentication issues.”

via The Sedona Conference® Announces Publication of The Sedona Conference® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation.

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3 Reasons Enterprise Search is not eDiscovery

November 12, 2010 By Leave a Comment

Lengthy Deployment

A typical enterprise search solution will take 3-6 months to deploy. That kind of timeline butts up against the Federal Rules of Civil Procedures requirements for disclosures within 90-120 days. Additionally, the legal team will make early strategic decisions about the case without being fully informed. In either case, the results can be disastrous.

Misses key data sources

Even if you have an Enterprise Search solution in house it isn’t likely to have indexed critical Electronically Stored Information (ESI) sources such as archives and cloud based storage. Adding these additional systems typically means additional costs from professional services and software licenses. However, failure to discover content in these systems can easily lead to an adverse inference, injunction or other court-rendered damage.

Not Actionable

Enterprise Search leads the single user to a single document. The user then clicks one of the top search results to view a document But legal teams deal with potentially millions of documents that need to be identified, moved to legal hold, organized into collections, processed and analyzed. Enterprise Search lacks even the most basic capabilities required to defensibly collect the documents, making it irrelevant at best and harmful at worst.

via 3 Reasons Enterprise Search is not eDiscovery.

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BBC – US ambassador questioned on EU data sharing

October 26, 2010 By Leave a Comment

The US ambassador to the EU has said that security must be protected as well as privacy, during an evidence session with the European Parliament’s Civil Liberties Committee on 25 October 2010.

William Kennard was speaking to MEPs as part of negotiations into a new “umbrella agreement” on the sharing of data with the US authorities.

There have been concerns that using the data of travellers to the US could constitute a breach of privacy.

Under the new proposal being negotiated, sensitive information such as religious beliefs – revealed by meal preferences – or health conditions would only be given in “very exceptional circumstances.”

The European Commission is also offering passengers the right to be informed about the processing of their data.

Earlier in the year MEPs blocked a similar agreement on the transfer of financial data – the so-called SWIFT agreement.

A new agreement had to be struck between the EU and the US that contained increased privacy safeguards.

Ambassador Kennard told the committee that the US had the same values as the EU on data privacy, but admitted that the two blocs had “different approaches”.

He expressed concerns about the retroactive aspect of any new agreement, saying it would be difficult to update existing bilateral agreements with various member states.

via BBC – Democracy Live – US ambassador questioned on EU data sharing.

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Data protection: how to bring Americans and Europeans closer together?

October 26, 2010 By Leave a Comment

Though the Swift data privacy issue not forgotten, Europeans and Americans are trying to overcome their data protection differences via a possible police and judicial co-operation agreement. At a Civil Liberties Committee hearing on Monday, MEPs debated a draft negotiating brief proposed by the Commission to the Council. Parliament will have a right of veto over the final agreement.

“We would like to adjust the trajectory” with this agreement, said rapporteur Jan-Philipp Albrecht (Greens/EFA, DE), the new text of which “must remedy certain shortcomings which we have identified in recent years”. Simon Busuttil (EPP, MT), welcomed a “change of approach” by the US authorities: “one year ago, the United States seemed unaware of the existence of this Parliament” during debates on the Swift agreement. The Americans “will have to be as flexible as possible, because we shall not be easy partners”, he warned.

Don’t bet security against privacy

Europeans and Americans should not bet security against privacy – “we want both”, said US Ambassador to the EU William E. Kennard. “Neither must take precedence”, acknowledged Alexander Alvaro (ALDE, DE), who wondered where the dividing line should be drawn between “what is legal and what is legitimate, especially when gathering personal data “becomes an end in itself”.

The EU’s Belgian Presidency would like the negotiating brief to be approved in December, said current President of the Council Stefaan De Clerck.

For the time being, “a patchwork” of sector-specific deals and “about a hundred” bilateral agreements

“Today we face a patchwork” of cross-Atlantic data exchange deals, “all of which have proven their worth, but the overall result is not very satisfactory”, said the European Commission Director-General for justice Françoise Le Bail, justifying the Commission proposal. “It’s a real puzzle, which complicates the work of  officials and policemen, as well as the exercise of citizens’ rights” added Mr De Clerck.

“We have different systems but common values” observed  Mr Kennard, expressing concern about certain aspects of the negotiating brief proposed by the Commission. “We fear that a possible retroactive application could compromise the one hundred various agreements already signed. They might have to be reopened and renegotiated”, which could take “years, or indeed decades”, he said.

“I suppose you have a list” of these agreements, said Stavros Lambrinidis (S&D, EL). “Which of them would pose a problem?” he asked, adding that “if all the bilateral agreements more or less comply with the proposed data protection principles”, then “the obstacle should not be too difficult to overcome”.

via Data protection: how to bring Americans and Europeans closer together?.

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RT @glambert: Reading Faegre & Benson’s “Social Media in Civil Litigation” – http://bit.ly/92qlrk #ediscovery

October 14, 2010 By Leave a Comment

RT @glambert: Reading Faegre & Benson’s “Social Media in Civil Litigation” – http://bit.ly/92qlrk #ediscovery

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ACLU, other groups sue U.S. over border laptop searches – Computerworld

September 7, 2010 By Leave a Comment

The American Civil Liberties Union and other groups have filed a lawsuit challenging the U.S. Customs and Border Protection (CBP) practice of searching laptops and other electronic devices at U.S. borders.

The lawsuit, filed Tuesday by the ACLU, the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL), challenges a 2008 CBP policy that allows border agents to search electronic devices of any traveler, without suspicion of wrongdoing. In some cases, border agents have copied the contents of the devices or confiscated them. The lawsuit asks the court for an order prohibiting searches of electronic devices at borders without a warrant and probable cause or reasonable suspicion of criminal activity.

The groups filed the lawsuit to “protect the rights of all Americans to cross the border free from intrusive government searches,” said Catherine Crump, staff attorney with the ACLU Speech, Privacy and Technology Project.

via ACLU, other groups sue U.S. over border laptop searches – Computerworld.

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Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? by Kristen Knapp | SSRN

August 21, 2010 By Leave a Comment

Although the U.S. Supreme Court first considered the conflict between U.S. discovery rules and foreign non-disclosure law in 1958, a clear standard regarding how to enforce U.S. law against foreign domiciled companies has yet to emerge. As a result of the 2006 ammendments to the U.S. Federal Rules of Civil Procedure concerning electronic discovery (“e-discovery”) procedures “[m]ore and more companies with global operations are finding themselves enmeshed in e-discovery that requires a greater understanding of the issues and laws from a global perspective” because “[i]t is challenging to navigate and manage e-discovery when you have parent companies based overseas or U.S.-based companies with foreign subsidiaries.”

This paper looks at, in light of the 2006 amendments and the lack of case law regarding the affect of the 2006 amendments, whether the enforcement techniques, as applied to “paper” discovery should be applied to e-discovery and whether there is anything specific to the nature of e-discovery that necessitates a change in the application of the law. Specifically, the paper addresses how the European data privacy regime may affect the application of paper discovery enforcement techniques to e-discovery. The paper suggests that it would be unwise for U.S. courts to afford the European Data Privacy regime significant deference. Instead, the European Data Privacy regime should be treated with skepticism, similarly to how the U.S. courts have viewed “blocking statutes” contained in foreign law. In particular, treating the EU Data Privacy regime with skepticism will help to prevent the creation of perverse incentives for companies to store their data abroad that hope to avoid legitimate discovery production requests under the Federal Rules of Civil Procedure, by raising the transaction costs for such behavior.

via SSRN-Enforcement of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect to the EU Data Protection Directive? by Kristen Knapp.

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