Managing E-Discovery Today under the FRCP

Utilizing technology to manage e-discovery is not just a sound method of lowering the costs of litigation and compliance (as discussed on this blog before), but is necessary simply to satisfy a company’s legal obligations. Take, for example, civil document discovery under the Federal Rules of Civil Procedure (“Rules”). The Rules were changed in 2006 to require parties to identify and produce electronically stored information. As Courts grapple with electronic information issues, we are seeing them hold companies to a rigorous standard in locating and producing documents.

Traditionally, the Rules permitted companies to produce documents and information in two ways: (i) organized to correspond to the specific categories of documents called for by the document request, or (ii) as the documents “are kept in the ordinary course of business.” In a recent case, Pass & Seymour Inc. v. Hubbell Inc., 5:07-cv-00945 (N.D.N.Y. Sept. 12, 2008), the plaintiff company, Pass & Seymour, responded to discovery propounded as part of a patent litigation by producing, in electronic format, more than 400,000 pages of undifferentiated documents in 220 unlabeled computer folders, on the basis that this production mimicked how the documents were kept in the ordinary course of business.

Defendant Hubbell objected, contending that, in producing documents electronically, Pass & Seymour was required to produce not just the documents themselves, but additional “information necessary to make the production useful to” Hubbell. Magistrate Judge David E. Peebles agreed with Hubbell, holding that more than mere production was now required under the Rules. The Court gave Pass & Seymour 30 days “to produce to defendant an index of the documents produced, revealing the custodian, location and general description of the filing system under which each document was maintained in the ordinary course of plaintiff’s business, further including an indication of whether the document is kept in digital format, hard copy, or both.” See also Oklahoma ex rel. Edmonson v. Tyson Foods Inc., No. 05CV329 (N.D.Okla. 2007) (court requires disclosing party to index and organize discovery materials to make them more useful to receiving party). As lawyers and judges become more tech-savvy, the demands and burdens imposed on companies will surely increase. Companies will not only have to produce documents, but to produce them in particular ways in order to make things easier on the Court and opposing party. This puts even more importance on making sure that your company’s data retention and destruction policies are synchronized with your technology, and that your company’s IT group becomes involved in legal projects as soon as possible.

Daniel Garrie with contributions from Anthony I. Giacobbe, Jr.