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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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Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver : Electronic Discovery Law

August 24, 2011 By Leave a Comment

Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)

The court held that privilege was waived as to inadvertently produced documents where defendants failed to take reasonable steps to prevent disclosure and failed to rectify the error in a timely way.  In so finding, the court cited defendants’ failure to conduct a final check before production, the failure of the process to protect any privilege (all privileged documents were produced), the nine months between production and discovery of the disclosure, and the failure to timely produce a privilege log, among other things.

Defendants had a three-step process to respond to discovery.  First, backup tapes were searched using agreed upon and court-ordered search terms.  The documents identified by the search were then placed by a vendor into an online database for review by defense counsel.  Following that review, documents released by defendants were placed in an online production database for plaintiffs to access.  It was intended that plaintiffs would have access to both responsive and non-responsive documents.  However, defense counsel was “‘under the impression’ that documents . . . marked ‘privileged’ . . . would be automatically withheld from the production database . . . .”

Nine months after production began (and at least two months after it ended), the inadvertent production came to the attention of defendants when plaintiffs attempted to use two privileged documents at deposition, to which defense counsel objected.  Following that deposition, defense counsel contacted plaintiffs’ counsel to inform him that certain privileged documents had been inadvertently produced.  Four months later, defendants produced a privilege log for the first time, which identified 159 documents that had been inadvertently produced.  No other documents were identified as withheld from production.  Thus, it was presumed that all documents identified as privileged during the review had been inadvertently produced.  Plaintiffs claimed that privilege had been waived and the parties were able to independently resolve their disputes as to all but six documents.

via Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver : Electronic Discovery Law.

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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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Mechanisms That Help Reduce the Cost of E-Discovery | NJ Law Journal

May 19, 2010 By Leave a Comment

No matter how vigilant, there is no way to fully insulate yourself from a potential lawsuit. It should come as no surprise that defending a lawsuit, even one where you are ultimately not liable, can be costly. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With all of the unavoidable expenses associated with litigation, in these economic times it is necessary to implement mechanisms that help curtail the cost of litigation, especially with regard to electronic discovery.

RELEVANT COURT RULES REGARDING E-DISCOVERY

Courts have recognized the importance of technological advancements in litigation by implementing rules that require parties to produce electronic information in discovery. Indeed, both the Federal Rules of Civil Procedure and the New Jersey Rules of Court (collectively, the “court rules”) require parties to produce their electronically stored information during litigation. Federal Rules 26(a)(1) and N.J. Rules 4:18-1(a).

In federal actions, parties are required to disclose, among other things, documents and other objects within their possession that may be used to support their claims or defenses prior to receiving a discovery request. Federal Rules 26(a)(1)(A)(ii). As of December 1, 2006, the term “documents” has been expanded to include ESI among the type of information and documents produced in litigation. Similarly, the N.J. Rules provide that a party may request ESI from its adversary. N.J. Rules 4:18-1(a).

Although not formally defined in either set of the court rules, in practice it is understood that ESI includes information “created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” Kenneth J. Withers, Northwestern Journal of Technology and Intellectual Property, Vol.4 (2), 171, 173. Although the most commonly requested form of ESI is e-mail, the court rules require production of electronic data in formats other than e-mail.

The court rules have attempted to provide some limitations to the production requirements of electronic discovery, presumably in an effort to achieve fairness and balance. For example, in the context of a federal case, “[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.” Federal Rules 26(b)(2)(B). However, even with limitations, the production of ESI can be very expensive and onerous.

via Mechanisms That Help Reduce the Cost of E-Discovery.

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Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law

February 11, 2010 By Leave a Comment

As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.”  In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:

• Discovery steps should be proportionate.  Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.

• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.

• Parties should be prepared to disclose all relevant electronic documents.

• Parties should agree as early as possible on the format in which electronic information will be produced.

via Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law.

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Another PDF “redaction” issue: The TSA makes another stupid move | The Wandering Aramean

December 7, 2009 By Leave a Comment

When the TSA make mistakes this egregious it really isn’t all that hard to pick on them.

The latest is that their Screening Management Standard Operating Procedure is published on the internet.  I actually like that.  I don’t think that security through obscurity is a good idea.  Of course the document is marked SSI and includes this footnote on every page:

SENSITIVE SECURITY INFORMATION

WARNING: THIS RECORD CONTAINS SENSITIVE SECURITY INFORMATION THAT IS CONTROLLED UNDER 49 CFR PARTS 15 AND 1520. NO PART OF THIS RECORD MAY BE DISCLOSED TO PERSONS WITHOUT A “NEED TO KNOW,” AS DEFINED IN 49 CFR PARTS 15 AND 1520, EXCEPT WITH THE WRITTEN PERMISSION OF THE ADMINISTRATOR OF THE TRANSPORTATION SECURITY ADMINISTRATION OR THE SECRETARY OF TRANSPORTATION. UNAUTHORIZED RELEASE MAY RESULT IN CIVIL PENALTIES OR OTHER ACTION. FOR U.S. GOVERNMENT AGENCIES, PUBLIC DISCLOSURE GOVERNED BY 5 U.S.C. 552 AND 49 CFR PARTS 15 AND 1520.

So the decision to publish it on the Internet is probably a questionable one.  On top of that, however, is where the real idiocy shines.  They chose to publish a redacted version of the document, hiding all the super-important stuff from the public.  But they apparently don’t understand how redaction works in the electronic document world.  See, rather than actually removing the offending text from the document they just drew a black box on top of it.  Turns out that PDF documents don’t really care about the black box like that and the actual content of the document is still in the file.

Yup, their crack legal staff managed to screw this one up pretty badly.  Want to know which twelve passports will instantly get you shunted over for secondary screening, simply by showing them to the ID-checking agent?  Check out Section 2A-2 (C) (1) (b) (iv).  Want to know the procedure for CIA-escorted passengers to be processed through the checkpoint?  That’s in the document, too.  Details on the calibration process of the metal detectors is in there.  So is the procedure for screening foreign dignitaries.

It is pretty pathetic that the folks supposedly responsible for administering this “security” program cannot even be bothered to do the simplest parts of their job correctly.  Then again, passing through the checkpoint every time I fly it is pretty clear that they do a lot of things incorrectly.  Just chalk this one up to more of the same idiocy.  More done badly.

via The Wandering Aramean

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