Part 3 of 3.
by Daniel B. Garrie

E-Discovery Timing Requirements Under the New Default Standard

The new standard for discovery provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b).  This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

Practitioner Tip: Counsel during the discovery phase should keep at a minimum a living document that details systems that are inaccessible and/or not relevant and ensure that this information has been provided to the courts and opposing counsel.

The new Default Standard when counsel identifies such systems as inaccessible, parties will not be required to search such systems until the search of all reasonably accessible relevant data repositories are completed.

Practitioner Tip: when such systems are identified counsel should make IT aware that production from such systems be required, because acquiring data from such systems might require the use of third-parties or the use of internal IT resources. By providing notice you are enabling IT to plan, which generally makes the production (if necessary) less costly and disruptive.

 The new Default Standard further holds that any such request for information that is not reasonably accessibly must be narrowly tailored and with good cause.  The Default Standard also mandates that any request for on-site inspection pursuant to Fed. R. Civ. P. 34(b) is to be reviewed for (1) good cause and (2) specific need.

Practitioner Tip: notably, the default standard does not provide any guidance as to what constitutes good cause or specific need, so counsel should be prepared to defend its request for on-site inspection vigorously.  In this regard, both “good cause” and “specific need” can be demonstrated to the court by various techniques, but should generally include a technical affidavit or report that supports the need for an on-site inspection. 

Requirements Respective to the Execution of a Search Under the new Default Standard

The new Default Standard also requires the parties to disclose any restrictions specific to the scope and method of the electronic search of such information.

Practitioner Tip: counsel would be well served by engaging in a dialog around any such restrictions with the technical stakeholders involved in the search, because often what is obvious to a technologist might not be to counsel.

 Although the Default Standard is not clear as to what constitutes a restriction, counsel would benefit from having a firm grasp on the capabilities and limitations of any search tools being utilized.

Practitioner Tip: in-house counsel should maintain a list of such limitations and provide this to outside counsel at the on-set of the discovery process.

 In addition, the new Default Standard requires that parties agree as to the method of searching, the words, the terms, and the phrases to be searched leveraging the domain expertise of their respective e-discovery liaisons.

Practitioner Tip: it is critical that the e-discover liaison be trained in information searching.

 The parties also must agree as to the timing and conditions that might require additional searches during the course of discovery.

Practitioner Tip: counsel is advised here to pay particular attention to the details of the search because selecting the wrong terms, fields, time frame, or document type can determine the cost and value the discovery provides.  When selecting terms counsel should always remember that they are asking a machine to search data and not a human being, meaning that the machine is not likely to pick up cultural jargon, typos, or other things that humans automatically perform when reading information.

E-Discovery Format, Retention, and Privilege Issues Under the New Default Standard

 With regards to the format of the data sets that are produced, the new Default Standard provide that if the parties during the course of the Rule 26(f) conference cannot agree as to format — the parties shall produce text searchable image files, unless this proves to be overly burdensome.  Parties are entitled to request the production of the native files that correlate to the search text image files, subject to a showing of a specific need.

In the first thirty (30) days of discovery, the parties should work with their respective e-discovery retention coordination to provide a roadmap that outlines the manner in which they intend to segregate and preserve the relevant information.

Practitioner Tip: In-house counsel should consider developing a standard roadmap that they can provide to outside counsel. Such a roadmap would provide e-discovery consistency and reduce costs substantially since outside counsel will not have to create such a document from scratch as part of each litigation. 

The more forthright the parties are in their efforts to preserve at the outset the less likely it is any accusations of spoliation will be viewed as having merit. Since lawyers are only human and inadvertent production does occur, the new Default Standard requires that when obviously inadvertently produced privileged information or attorney work product is produced, it is to be returned to producing counsel.  In addition, if producing counsel provides notice that such information was inadvertently produced, then, even if it is not obvious that it was produced inadvertently, the information should be returned within thirty (30) days of such notice. Finally, the new standard allows the courts to apportion costs of electronic discovery upon a showing of good cause otherwise the costs of discovery are be borne by each party.

* This is the third part in a three-part series which comprise an abridged version of the article “Electronic Discovery in Delaware Under the New Rules,” written by Daniel Garrie and published in the Los Angeles Daily Journal. To request a PDF of the complete article, please contact Law & Forensics.

by Daniel B. Garrie
Part 2 of 3 

The new electronic discovery rules require that the parties identify an ESI coordinator and an E-Discovery liaison.

• Identification of ESI retention coordinator:
  Counsel must provide the name of individual responsible for ESI retention and a general description of the retention policies for the systems identified as set-forth in Relevant Systems above.  The retention coordinator is required to perform the following: (a) ensure that the e-mail of identified custodians is not permanently deleted in the ordinary course of business and that all other information maintain by the custodians is not tampered with or destroyed; (b) provide notice as to the spam and/or virus filtering criteria used by e-mail systems – all such messages are deemed to be unresponsive as long as the filtering criteria is reasonable; and (c) within seven days  of identifying the relevant custodians, the retention coordinator must implement the aforesaid procedures and files  a statement of compliance with the court.

  Practitioner Tip: Counsel should reach out to their Clients IT team to identify the appropriate person and in-house counsel should work internally with the IT group to establish the appropriate individual. The actual number of individuals is not set out in the Default Standard, it would be logical to assume that at least one or two people would be within the group of appropriate persons. Investing the time early on saves time and ensures that the parties will not accidentally end up eliminating a system that is subject to a litigation hold, which has been known to happen. While many corporations have a retention policy, few have a person designated for its enforcement.  Enforcement typically occurs on a case-by-case basis when available storage space becomes an issue so Counsel should tape pains to clarify what is policy and what is practice.

• Establish and identify E-Discovery liaison:
  The Rules require each party to a case to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel. The e-discovery liaison must be knowledgeable about the party’s systems and capabilities – sufficient to answer and resolve relevant questions; adept and informed as to the technical underpinnings relating to the e-discovery including storage  media, data formats, and other such issues; prepared to participate in resolving e-discovery disputes. Counsel should note that the attorneys of record are ultimately responsible for all e-discovery requests, and the e-discovery liaisons are responsible for executing the party’s e-discovery efforts to facilitate the process.

  Practitioner Tip: Counsel should select someone early that knows e-discovery law and technology. It is advisable that Counsel engage the Client technology team in selecting such an individual because if the person is not technically competent as to the Client’s specific systems it could cause problems down the road.  Of course, a company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

With these new roles in mind, counsel should attempt to identify and provide notice to opposing counsel of any reasonably anticipated problems that might arise during the course of e-discovery. Since hindsight is 20/20 in-house counsel might want to compose a list of prior e-discovery issues that have arisen and utilize it appropriately, including sharing it with outside counsel.

Under the new Default Standard, where parties fail to provide the above information before the Rule 26(f) conference, the parties must either (a) agree to on a date when the information set forth above, or (b) submit the issue for resolution by the court at the Rule 16 scheduling conference.

* This is the second part in a three-part series which comprise an abridged version of the article “Electronic Discovery in Delaware Under the New Rules,” written by Daniel Garrie and published in the Los Angeles Daily Journal. To request a PDF of the complete article, please contact Law & Forensics.

by Daniel B. Garrie*
Part 1 of 3 

On December 8, 2011, the Delaware federal court’s adopted a “Default Standard for Discovery, Including Discovery of Electronically Stored Information (‘ESI’)” (the “Default Standard”). [1]  This article describes the new Default Standard for e-discovery and offers practitioner practice points.

New Requirements and Roles for Clients and Counsel to Apply When Appearing in Delaware Federal Courts.

The new Default Standard compels the parties to engage in substantive dialog around various aspect of e-discovery at the Fed. R. Civ. P. 26(f) conference and the Fed. R. Civ. P. 16 scheduling conferences. It also requires that that prior to the Rule 26(f) conference, the parties will have exchanged information, including: providing a list of custodians and a list that details out relevant systems

• List of Custodians:
  List of likely custodians with relevant electronically stored information. The list must provide the individual’s title and responsibility.
  Practitioner Tip: Counsel should confer not only with counsel but also verify with a human resource representative to verify that the title and responsibilities being stated are both accurate and up to date.  Counsel might also want to identify who are full time and who are contractors as contractors may be using their own computer systems.

• List of relevant systems:
  List of relevant systems that had been in place at all relevant times and a description of such systems that includes at a minimum: the nature, scope, character, organization, and formats employed in each system. This list should notate what data is not reasonably accessible, such as media that are no longer in use or supported or where retrieval costs are burdensome or costly.
  
  Practitioner Tip: Counsel in creating this list should work with the Client’s technology stakeholders. This information depending on the size of the company may require a meaningful effort by the technologist and so counsel should engage early with the Client’s technology team to avoid a time crunch. In-house counsel should consider working with the information technology group to develop a list that contains these details and can be accessed by counsel without requiring legal to engage IT each time such information is required. Although this might appear daunting the long term benefit of implementing such a system with the requisite underlying process delivers value to the legal and technology  groups, saving money, time, and resources.  It is important to note that many IT departments have applications up and running to manage user profiles. 

In addition to these list Counsel must also identify the ESI retention coordinator and the E-Discovery liaison, which is discussed in Part 2 of this series. 

Though difficult to quantify, the risks involving the cloud data storage are very real. For example, there is the risk of loss or damage to the data. Provisions should of course be made to deal with such problems, but there can be a business cost to any interruption in the normal flow and use of data. Litigation risks are also present. Cloud computing could lead to increased risk of litigation over certain types of data, such as a patent litigation. Of course, the costs of any litigation will include electronic discovery costs, and the company must consider whether these costs will increase as a result of the cloud and should consider whether any increased costs could potentially offset or mitigate the benefits of using the cloud

Counsel should identify how data will be collected and preserved before that data is put on the cloud. A good practice point is to record the results of the due diligence in a data map or other litigation readiness tool and store that along with the contract. Should litigation later arise, the company will be prepared.

The business units must be engaged in the entire process as well. Their most important concern should be the handling and treatment of data – how it will be stored, accessed and used. But they will also need to consider the costs. One key point often overlooked is that every cloud computing solution is unique; in a large organization, different business units may have very different needs and issues (as well as cost analyses) and store information in different ways. One possible way to divide information is to segregate information by type. One can treat e-mails differently than other data. Or, if a company uses sales data, production data, and inventory data, it may make sense to store these in unique cloud systems in order to maximize storage and usage efficiency. Thus, depending on the company, the process of implementing cloud computing may involve several different approaches.

In short, clouds can provide significant competitive advantages in use, storage and efficiency of data. But these advantages will only be realized if they outweigh the costs and risks associated with the cloud. Careful attention to these risks at the outset – before implementation of the cloud – is the key to its successful use.

* This is the second part in a three-part series which comprise an abridged version of the article on “Cloud Computing,” written by Daniel Garrie and published in the Los Angeles Daily Journal.

** To request a PDF of the complete article, please contact Law & Forensics.