Electronic Discovery

Ethics, Principles, Rules & Guidelines

Richard K. Herrmann

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The New World

• 93% of all documents in the US electronic

• 31 billion emails daily

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Rules of Professional conduct

• Rule 1.1. Competence

• Rule 1.3. Diligence

• Rule 1.4. Communication

• Rule 1.6. Confidentiality of information

• Rule 3.3. Candor toward the tribunal

• Rule 8.4. Yada, Yada, Yada. . .

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Recent Cases

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Recent Cases

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Recent Cases

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Cases

Zubulake v. UBS Warburg LLC:

220 F.R.D. 212 (S.D.N.Y. Oct 22, 2003)

2003 WL 21087136 (S.D.N.Y. May 13, 2003)

217 F.R.D. 309 (S.D.N.Y. May 13, 2003)

216 F.R.D. 280 (S.D.N.Y. Jul 24,2003)

2004 WL 1620866 (S.D.N.Y. Jul 20, 2004)

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Zubulake v. UBS Warburg LLC:

“The world was a far different place in 1849, when Henry Davis Thoreau opined . . That ‘[t]he process of discovery is very simple.’”

217 F.R.D. 309 (S.D.N.Y. May 13, 2003)

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Zubulake v. UBS Warburg LLC:

“The conduct of both counsel and client thus calls to mind the now-famous words of the prison captain in Cool Hand Luke: ‘What we’ve got here is a failure to communicate.’”

2004 WL 1620866 (S.D.N.Y. July 20, 2004)

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Zubulake v. UBS Warburg LLC:

• Zubulake suing UBS Warburg for gender discrimination and illegal retaliation.

•Salary $500,000

•Potential claim $13M + punitives and fees

2004 WL 1620866 (S.D.N.Y. July 20, 2004)

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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Recent Cases

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State and Local District Court Rules• Mississippi Court Order 13

(May 29, 2003) amending Mississippi Rule of Civil Procedure 26

• Texas Rule of Civil Procedure 193.3(d) and Rule 196.4 (privilege not waived by production) (electronic or magnetic data)

• District of Arkansas, Eastern and Western, Local Rule 26.1

• District of Delaware, Default Standards

• District of Kansas, Electronic Discovery Guideline

• District of New Jersey, Local Rule 26.1

• District of Wyoming, Local Rule 26.1

(from Kenneth J. Withers http://www.fjc.gov/newweb/jnetweb.nsf/pages/196)

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The Sedona Conference

• Founded in 1997 by Richard G. Braman

• Dedicated: advanced study of law & policy

• Best Practices in Electronic Discovery– October 2002 working group– First principles March 2003– Last revision January 2004

• thesedonaconference.org

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Sedona Principles (1-7)

1. Preserve Electronic Data

2. Apply balancing standard: FRCP 26(b)(2)

3. Early meet and confer

4. Make eD requests and responses clear

5. Reasonable - not foolproof - preservation

6. Responding party best knows capability

7. Burden on requesting party

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Sedona Principles (8-14)

8. Active data - primary source of discovery

9. No access to deleted data w/o special need

10. Responding party to protect privilege

11. Make eD requests and responses clear

12. Use eD tools to show good faith

13. Costs generally on producing party

14. Sanctions only on special showing

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ABA Amendments to Civil Discovery Standards

“The 2004 amendments update the Civil Discovery Standards insofar as they relate to electronic discovery, which is a rapidly-evolving area that has grown dramatically in importance over the past 5 years since the Standards were originally adopted.”

(ABA Executive Summary)

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Proposed Amendments to Fed. Rules

• Fordham Law School Feb. 2004

• AOC April 2004

• Published for comment in Aug. 2004

• FJC Approved September 20, 2005

• Effective Date December 1, 2006

• Includes Rules 16, 26, 33, 34, 37 & 45

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Federal Rules (continued)

“Electronic discovery exhibits several distinctive features that may warrant treatment in the rules. Perhaps the most prominent is the exponentially greater volume that characterizes electronic data, which makes this form of discovery more burdensome, costly, and time-consuming”

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Federal Rules (continued)

“Uncertainty as to how to treat these distinctive features under the present rules exacerbates the problems. Case law is emerging, but it is not consistent and discovery disputes are rarely the subject of appellate review.”

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Federal Rules (continued)

Proposed amendments address 5 areas:

(a) Early attention to issues

(b) Discovery of data not easily accessible

(c) Assertion of privilege after production

(d) Application of Rules 33 & 34 to eD

(e) Restrictions on sanctions for loss from routine operations

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District of Delaware Default Standards

The Discovery Conference

2. “The parties shall discuss the parameters of their anticipated eD at the Rule 26(f) conference, as well as at the Rule 16 scheduling conference with the Court . . .”

D.N.J. L. Civ. R. 26.1(d)Sedona Principle 3Proposed FRCP R26(f)ABA Standard 31

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District of Delaware Default Standards

Coordination of Electronic Discovery

3. “In order to promote communication and cooperation between the parties, each party to a case shall designate a single individual through which all eD requests and responses are made (the eD liaison).”

D.N.J. L. Civ. R. 26.1(d)(1)Sedona Principles at 15 [focus on Team]

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District of Delaware Default Standards

Scheduling Production of eD

4. “Discovery of electronic documents shall proceed in a sequenced fashion.”

D.N.J. L. Civ. R. 26.1(d)(1)Sedona Principle 8 [active data first]

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District of Delaware Default Standards

Search Methodology5. “If the parties intend to employ an electronic

search to locate relevant electronic documents, the parties shall disclose any restrictions as to scope and method which might affect their ability to conduct a complete electronic search of the electronic documents.”

D.N.J. L. Civ. R. 26.1(d)(3)(a) [meet & confer on procedures for producing]Sedona Principles at 39 and Principle 11 [use of electronic tools]FRCP Rule 26(b)(2) [court can require restrictions]

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District of Delaware Default Standards

Formats for Production6. “If, during the course of the Rule 26(f)

conference the parties cannot agree to the format for document production, electronic documents shall be produced to the requesting party as image files.”

D.N.J. L. Civ. R. 26.1(d)(3)(a) [meet & confer on format for producing]Sedona Principles at 42FRCP Rule 34(b)(2)

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District of Delaware Default Standards

Preserving Electronic Discovery7. “Within the first 30 days of discovery, the parties

should work towards an agreement that outlines the steps that each party shall take to segregate and preserve the integrity of all relevant electronic documents.”

D.N.J. L. Civ. R. 26.1(d)(3) [meet & confer on preservation]Sedona Principles at 33ABA Standard 10

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District of Delaware Default Standards

Protecting Inadvertent Disclosure of eD8. “Electronic documents that contain privileged

information or attorney work product shall be immediately returned if the documents appear to have been inadvertently produced.”

D.N.J. L. Civ. R. 26.1(d)(3)(a) [meet & confer on inadvertent production]Sedona Principles at 36 and Principle 10FRCP Rule 26(b)ABA Standard 32

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District of Delaware Default Standards

Allocating the Cost of Production9. “Generally, the costs of discovery shall be borne

by each party.”

D.N.J. L. Civ. R. 26.1(d)(3)(b) [meet & confer on who bears cost]Sedona Principles at 44 and Principle 13ABA Standard 29

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District of Delaware Default Standards

Resolution of Discovery Disputes10. “Discovery disputes shall be resolved and trial

presentations shall be conducted consistent with each individual judge’s guidelines.”

Electronic Discovery

Principles, Rules & Guidelines

Richard K. Herrmann

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Web Sites

• www.thesedonaconference.org/– Site for Sedona Principals and Guidelines

• www.abanet.org/litigation/taskforces/electronic/home.html/ – (ABA Amended Standards for Discovery)