PRINCIPLES 1-7 FOR ELECTRONIC DOCUMENT PRODUCTION Maryanne Post

SEDONA CONFERENCE WORKING GROUP SERIES (“WGS”) October 2002 Attorneys and other experts met to address the

production of electronic data and documents in discovery

Concerns Core Principles Emerged WGS Output Draft, Review, Critique, Comment Draft Publication Review, Revision Evolve into authoritative statements of law and policy

“Electronic data and documents are potentially discoverable under Fed. R. Civ. P. 34 or its state law equivalents. Organizations must properly preserve electronic data and documents that can reasonably be anticipated to be relevant to litigation.”

COMMENTARY - 1

1. The Importance of Proper Document Management Policies

Establish Tailor Implement Determine Stress

2. The Benefits of Written Records Management Policies

Record retention Organization Determination of sanctions Defense Mechanism

3. Written Records Management Policies Should Account for Records in both Paper and Electronic Form

4. Preservation in the Context of Litigation Sarbanes Oxley Establish procedures

“When balancing the cost, burden, and need for electronic data and documents, courts and parties should apply the balancing standard embodied in Fed. R. Civ. P. 26(b)(2) and its state law equivalents, which require considering the technological feasibility and realistic costs of preserving, retrieving, producing, and reviewing electronic data, as well as the nature of the litigation and the amount in controversy.”

COMMENTARY - 21. Scope of Reasonable Inquiries

Traditional Approach Computer Tools

2. Balancing Need and Cost of E-Discovery Rule 26(b) Balancing a need for discovery with the burdens

imposed. Factors:

Large volumes Multiple Repositories Complex Internal Structures Different forms Changes in Technology

Burden vs. Amount in Controversy

3. Need to Coordinate Internal Efforts Team Approach

4. Communications with the Court Regarding E-Data Collection and the Need to Develop an Adequate Factual Record

Reasonable Position Court Comprehension

“Parties should confer early in discovery regarding the preservation and production of electronic data and documents when these matters are at issue in the litigation, and seek to agree on the scope of each party’s rights and responsibilities.”

COMMENTARY - 3

1. Parties Should Include E-Discovery Issues in their Rule 26 Disclosures and Conferences

Rule 26(f) – Meet and Confer Issues to Discuss:

Computer Systems Time Period Key Players

Post-Discovery Spoliation Issues Rule 16(b) – Pretrial Conference

2. Privilege Logs for Voluminous E-Documents Rule 26(b)(5)

Reduce Procedural Challenges

3. Preservation of Expert Witness Drafts and Materials

Expert Witness Testimony Rule 26(a)(2)(B)

Sanctions Exclusion of Testimony

“Discovery Requests should make as clear as possible what electronic documents and data are being asked for, while responses and objections to discovery should disclose the scope and limits of what is being produced.”

COMMENTARY - 4

1. Requests for Production Should Clearly Specify what Documents are Being Requested

Rule 34 Document Requests

Clearly Particularity

Purpose Form to be Produced

2. Rule 34 Responses and Objections Reasonable steps to produce Limit Searches and Review

3. Disclosure of Collection Parameters1. Avoiding unnecessary controversy

“The obligation to preserve electronic data and documents requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.”

COMMENTARY - 51. Scope of Preservation Obligation

2 Questions Reasonable Balance

Duty to Preserve vs. Need to Continue Operations

2. Organizations Must Prepare for E-Discovery to Reduce Cost and Risk

1. Responding Parties Steps to Control Costs:1. Institute Procedures2. Establish Processes

2. Benefits of Preparation:1. Present cost and burden2. Control Costs3. Avoid risk of Failure

3. Corporate Response Regarding Litigation Preservation Early Preservation Steps Duty to Comply

4. Notice to Affected Persons Reasonable Steps Sufficiently Describe Rule 34 Issues

COMMENTARY 5 - CONTINUED1. Preservation Obligation Not Ordinarily Heroic

3 exceptions: 1. Substantial likelihood that information exists in the form

sought 2. The information would not remain in existence absent

intervention 3. Preservation/production would materially advance the

interests of justice.

2. Preservation Orders Prove necessity Meet and confer

3. All Data Does Not Need to be “Frozen” Secure evidence for the fair and just resolution of the matter

4. Disaster Recovery Backup Tapes Higher costs Sampling

5. Potential Preservation of Shared Data Identification and Appropriate Steps

“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronic data and documents.”

COMMENTARY - 6

1. The Producing Party Should Determine the Best and Most Reasonable Way to Locate and Produce Relevant Documents in Discovery

2. Scope of E-Data Collection Define scope Important Steps in limiting discovery

3. Inspections Rule 34 Inspections Concerns

4. Use and Role of Consultants and Vendors Technical expertise and experience Considerations in evaluating vendor software

5. Documentation and Validation of Data Collection Procedures

Considerations Benefits

“The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronic data and documents were inadequate.”

COMMENTARY - 7

1. Rule 37 Sets Forth Guidelines for Resolving Discovery Disputes

Objections Motion to Compel Burden on Moving Party

2. Discovery against Third Parties Under Rule 45

Rule 45(c)(1) Rule 45(c)(2)(B) Balance

QUESTIONS

1. As counsel for a corporation, what advice would you give to a client who fears complaints from employees regarding privacy issues and document review and production?

2. A party seeking access to e-mail relevant to the case requests that it be permitted to copy and inspect the active e-mail accounts of all users. Should this request be approved or denied? Why?