electronically stored information stored... · 2010-06-30 · using electronic tools and processes,...

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Electronically Stored

Information

Robert AveryChief, Laboratory Services

MI Dept. Natural Resources and Environment


On December 1, 2006, new amendments to the Federal Rules of Civil Procedure, concerning the discovery of “electronically stored information” (ESI) in civil litigation at federal courts, took effect. Amendments and additions were made to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35.

The state recently adopted these rules for litigation.

These new rules on electronic discovery for ESI were based on principles, known as the Sedona Principles.

Electronically Stored

Information

ES

I

ES

I


THE PRINCIPLES

Principle 1: Electronically stored information is potentially

discoverable under Fed. R. Civ. P. 34 or its state equivalents.

Organizations must properly preserve electronically stored

information that can reasonably be anticipated to be relevant

to litigation.

Principle 2: When balancing the cost, burden, and need for

electronically stored information, courts and parties should

apply the proportionality standard embodied in Fed. R. Civ. P.

26(b)(2)(C) and its state equivalents, which require

consideration of the technological feasibility and realistic

costs of preserving, retrieving, reviewing, and producing

electronically stored information, as well as the nature of the

litigation and the amount in controversy.


Principle 3: Parties should confer early in discovery regarding the preservation and

production of electronically stored information when these matters are at issue in the

litigation and seek to agree on the scope of each party’s rights and responsibilities.

Principle 4: Discovery requests for electronically stored information should be as

clear as possible, while responses and objections to discovery should disclose the

scope and limits of the production.

Principle 5: The obligation to preserve electronically stored

information 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

electronically stored information.

Principle 6: Responding parties are best situated to evaluate the

procedures, methodologies, and technologies appropriate for

preserving and producing their own electronically stored

information.


Principle 7: The requesting party has the burden on a

motion to compel to show that the responding party’s steps

to preserve and produce relevant electronically stored

information were inadequate.

Principle 8: The primary source of electronically stored information for production

should be active data and information. Resort to disaster recovery backup tapes and

other sources of electronically stored information that are not reasonably accessible

requires the requesting party to demonstrate need and relevance that outweigh the

costs and burdens of retrieving and processing the electronically stored information

from such sources, including the disruption of business and information management

activities.

Principle 9: Absent a showing of special need and

relevance, a responding party should not be required to

preserve, review, or produce deleted, shadowed,

fragmented, or residual electronically stored information.


Principle 10: A responding party should follow reasonable procedures to protect

privileges and objections in connection with the production of electronically stored

information.

Principle 11: A responding party may satisfy its good faith obligation to

preserve and produce relevant electronically stored information by

using electronic tools and processes, such as data sampling,

searching, or the use of selection criteria, to identify data reasonably

likely to contain relevant information.

Principle 12: Absent party agreement or court order specifying the form

or forms of production, production should be made in the form or

forms in which the information is ordinarily maintained or in a

reasonably usable form, taking into account the need to produce

reasonably accessible metadata that will enable the receiving party to

have the same ability to access, search, and display the information as

the producing party where appropriate or necessary in light of the

nature of the information and the needs of the case.


Principle 13: Absent a specific objection, party agreement or

court order, the reasonable costs of retrieving and reviewing

electronically stored information should be borne by the

responding party, unless the information sought is not

reasonably available to the responding party in the ordinary

course of business. If the information sought is not reasonably

available to the responding party in the ordinary course of

business, then, absent special circumstances, the costs of

retrieving and reviewing such electronic information may be

shared by or shifted to the requesting party.

Principle 14: Sanctions, including spoliation findings, should be

considered by the court only if it finds that there was a clear

duty to preserve, a culpable failure to preserve and produce

relevant electronically stored information, and a reasonable

probability that the loss of the evidence has materially

prejudiced the adverse party.


The amendments and principles provide a framework for conducting electronic discovery, obliging litigants to identify, preserve, and collect ESI very early in a case. The amendments affect all electronic data that may become involved in litigation.

The potential impact for preserving ESI on public agencies is significant.

The impact on private laboratories is unknown UNLESS the private laboratory is performing work under contract of a public agency.


WHAT IS ESI?

ESI can be found in e-mails, voice-mails, instant messages, text messages, documents, spreadsheets, databases, file fragments, metadata, digital images, and digital diagrams. It can be stored in every type of electronic media including hard drives, thumb drives, computers, handheld devices, backup tapes, and optical disks.

For the laboratory community, it can be found in the instrument data files, LIMS, spreadsheets, etc.


I PRINT MY DOCUMENTS, WHY DO I NEED TO STORE THE ELECTRONIC FILE?


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INSTRUMENT DATA SYSTEMS ARE SIMILAR IN MAINTAINING METADATA

THAT IS NOT VISIBLE OR PRINTED

HARD COPIES DO NOT CONTAIN ALL THE METADATA AVAILABLE

HARD COPIES CAN BE MANIPULATED PRIOR TO GENERATION

ORIGINAL ELECTRONIC DATA FILES MUST SUPPORT THE HARD COPIES


MUST PLAN FOR RECORD STORAGE

DEVELOP A RECORDS RETENTION SCHEDULE

Identify the record categories

Identify the time to be stored on-site

Identify the time to be stored off-site

Identify records disposal mechanism

STICK TO THE RETENTION SCHEDULE !!!!!


EXAMPLE

-

Item #

25440

25441

TitleLaboratory Analyses Records-Bench

Sheets

This record includes all computer generated

bench sheets: raw data sheets,

chromatography charts and quality control

data.

Laboratory Analyses Records-Electronic

Data Files

This record includes all computer generated

files: raw data files, chromatography charts

calibration curves, and other files required for

processing instrument data.

On-site

CR+1

CR+1

Off-site

CR+7

CR+7

CategorySTORAGE

DESTRUCTION OF MATERIAL

DUMPSTER

SHREDDING

BURNING

LANDFILL

ERASE & REUSE (Flash Memory, HD, tape)


IDENTIFY RECORDS

DISPOSAL MECHANISM


Amended Rule 37 provides that, absent exceptional circumstances, a court may not impose sanctions under the rules on a party for failing to provide ESI lost “as a result of the routine, good-faith operation of an electronic information system.” The Amended Federal Rules do not define “good faith” or “routine,” but litigants should not expect broad protection in this provision, given the generally accepted requirement for document preservation once litigation is imminent. Additionally, a company likely will not receive the benefit of the doubt if its records are disposed of without showing that it followed a valid records retention policy.



MOST PROBLEMATIC

MUST BE ROUTINE PRACTICE

CANNOT BE SPORADIC

LOOK WHAT I FOUND……NOT!


Failure to follow the Records Retention Schedule

will show as inconsistency and may be viewed as

the potential hiding of information.

Past penalty awards have been as high as

millions of dollar$


REVIEW

IDENTIFY THE RECORDS – HARDCOPY/ESI

DEVELOP A RECORDS RETENTION SCHEDULE

ROUTINELY DESTROY RECORDS AT END OF

RETENTION PERIOD

SAVE ALL DATA ON LITGATION HOLD


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