A Few Thoughts on Electronic Discovery After December 1, 2006
An Overview of the E-Discovery Rules Amendments
Editor's Note: This is the first of seven installments on the electronic discovery rules. To view an index of the installments, click here. The electronic discovery amendments are an interrelated package. The amendments address five broad areas: (1) the parties’ obligations to meet and confer about electronic discovery early in litigation; (2) discovery of information that is not reasonably accessible and allocating costs of that discovery; (3) privilege review; (4) form of production; and (5) sanctions. An overarching change is the introduction of the term “electronically stored information” to the rules. This new term describes a distinct category of information subject to discovery rights and obligations, in addition to “documents” and “things.” The word “documents” no longer has to be distorted to accommodate the myriad ways in which computers create and store information, many bearing no resemblance to words fixed on pieces of paper. The amendments distinguish documents from electronically stored information because the categories are different in ways important to managing discovery. The distinction allowed the rules drafters to write provisions specifically addressing electronic discovery.
Conclusion
Editor's Note: This is the last of seven installments on the electronic discovery rules. To view an index of the installments, click here. Much has been written on the expense, burden, and delay that responding to requests for electronic discovery entails. Some cost and complexity exists because many litigants, lawyers, and—some would say—especially judges are new to the problems created by the intersection of litigation and modern information technology. The result is the unusual circumstance of problems that are simultaneously ubiquitous and unfamiliar. Discovery problems are likely to remain unfamiliar because technology will change in ways we cannot predict with any confidence.
Meeting and Conferring
Editor's Note: This is the second of seven installments on the electronic discovery rules. To view an index of the installments, click here. The new amendments that provoked the least controversy, the expansion of the meet-and-confer under Rule 26(f) and the initial conference with the court under Rule 16, may turn out to be the most important. The amended meet and confer requirements serve crucial purposes: to identify potential problems early in litigation and to establish workable electronic discovery protocols. Courts are already expecting parties to come to the meet-and-confer prepared to discuss the details of electronic discovery and can be demanding in what they require counsel to know. One judge described the obligations under new Rule 26(f) as follows:
Metadata and Issues Relating to the Form of Production
Editor's Note: This is the fifth of seven installments on the electronic discovery rules. To view an index of the installments, click here. Among the choices to be made in deciding what form or forms to use in producing electronically stored information is whether to delete, or “scrub,” the metadata. This category of electronically stored information does not have a direct paper counterpart. Metadata is described as “data about data” or “information describing the history, tracking, or management of an electronic document,” although it is increasingly used to describe a variety of “hidden” information that accompanies electronic files, such as “track changes.” Courts have struggled with whether parties may produce electronically stored information without metadata included. The rules do not specifically address metadata but do provide a procedure and guidance that courts are already using.
Not Reasonably Accessible Information and Allocating Discovery Costs
Editor's Note: This is the third of seven installments on the electronic discovery rules. To view an index of the installments, click here. A recurring problem in electronic discovery involves information stored on sources that are not reasonably accessible. Amended Rule 26(b)(2)(B) is designed to address this problem with a two-tiered solution. In the first tier, a party must provide discovery of relevant, nonprivileged, reasonably accessible, electronically stored information without a court order. In the second tier, however, a party need only identify sources of electronically stored information that are not reasonably accessible. Information stored on such sources may be discoverable, but only if the requesting party can show good cause for a court to order production.
Privilege Review
Editor's Note: This is the fourth of seven installments on the electronic discovery rules. To view an index of the installments, click here. One of the areas to be discussed in the Rule 26(f) meet-and-confer is whether the parties can agree on a procedure for asserting claims of attorney-client privilege or work-product protection after production. The amended Rule encourages parties to consider whether they can agree to nonwaiver agreements such as “quick peeks,” which would permit production before a full-blown, expensive, time-consuming privilege review. These and similar protocols are not new but are newly important, given the volume, nature, and variety of such information. These characteristics of electronically stored information both increase the costs and burdens of already expensive and slow preproduction privilege reviews and the likelihood of inadvertent disclosures even when the responding party conducts a full blown review.
Sanctions
Editor's Note: This is the sixth of seven installments on the electronic discovery rules. To view an index of the installments, click here. Most discussions of e-discovery-related sanctions have been about alleged failures to meet preservation obligations, although sanctions also apply if parties intentionally destroy electronically stored information. The dynamic nature of electronically stored information and the complexity of electronic information systems make preservation obligations less clear and spoliation allegations more likely than was true of conventional discovery. A party can save most electronically stored information indefinitely, but that does not mean that they must—or should—preserve everything. In an ideal world, individuals and organizations would save what they need for legal, business, or personal purposes and be free to discard everything else.