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					                                                   The New FRCP
                                                   Regarding Electronic
                                                   Evidence Rules

                                                                          ARMA International
                                                                             Fort Worth Chapter
                                                                              January 10, 2007


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      Bill Morrison                                           Thom Wisinski

         Attorney                                               Chief Knowledge
         White Collar/Antitrust                                  Officer
         Electronic evidence                                    Consultant to the
          group                                                   attorneys for
                                                                  electronic evidence
                                                                  and records retention
      morrisob@haynesboone.com

                                                              wisinskt@haynesboone.com



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         Rowe Entertainment v. William Morris
                       Agency
      1.   Specificity of the discovery request
      2.   Likelihood of discovering material data
      3.   Availability of the data from other sources
      4.   Purposes for which the responding party
           maintains those data
      5.   Relative benefits to the parties of obtaining those
           data
      6.   Total costs associated with the production
      7.   Relative ability and incentive for each party to
           control its own costs

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                                           Zubulake I
      1.   Extent to which the request is tailored to discover
           relevant data
      2.   Availability of those data from other sources
      3.   Total cost of production relative to the amount in
           controversy
      4.   Total cost of production, relative to the resources
           available to each party
      5.   Relative ability and incentive for each party to
           control its own costs
      6.   Importance of the issues at stake in the litigation
      7.   Relative benefits to the parties in obtaining those
           data
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      What the Rules DON’T Cover

         Specific Examples of Accessible/Inaccessible
         Cost Shifting
         Specifics on the Meet & Confer
         Guidance for Rule 26(f) documentation




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      Changing the Rules

         Began Five+ years ago
         Chaired by Hon. Lee Rosenthal (SDTX)
         The committee published proposed amendments
          in August 2004
         Amendments resulted in a study that included
          lawyers, academics, judges, and litigants and also
          sought out a number of IT experts




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      Changing the Rules (cont.)

      The Committee reached consensus on two points:
       Electronically stored information is retained in
        exponentially greater volume than hard-copy
        documents, is dynamic, and may be
        incomprehensible when separated from the
        system that created it.
       The differences from electronic documents and
        paper-type documents are causing problems in
        discovery that rule amendments can helpfully
        address.


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      Changing the Rules (cont.)

      1.   Provides for early attention to electronic discovery
           issues
      2.   Better management of discovery into
           electronically stored information that is not
           reasonably accessible
      3.   Assertions of privilege after production
      4.   Clarifies application to electronically stored
           information
      5.   Application of the sanctions to Electronically
           Stored Information


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      First Things First - FRCP

                   Rule 1 – Scope and Purpose of Rules

      “These rules govern the procedure in the United
      States district courts in all suits of a civil nature
      whether cognizable as cases at law or in equity or in
      admiralty, with the exceptions stated in Rule 81. They
      shall be construed and administered to secure the
      just, speedy, and inexpensive determination of
      every action.”



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      The Sedona Conference

      What is their purpose:
       “Think Tank”

       Develop guidelines for dealing with electronic
        evidence and and the issues that arise in
        preservation, review, production and maintaining
        Electronically Stored Information (“ESI”).
       Publications are developed by closed group dialog
        sessions and authored as a group. Drafts are
        then open for Judicial and public comment.


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      The Sedona Conference
      Publications:
       “The Sedona Principles”

       “The Sedona Guidelines for Managing Information
        and Records in the Electronic Age”
       “The Sedona Conference Glossary For E-Discovery
        and Digital Information Management”
       “Navigating the Vendor Proposal Process: Best
        Practices for the Selection of Electronic Discovery
        Vendors”
       “The Sedona „Guidelines/Principles‟ for Implementing
        Litigation Holds”
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                     The Meet and Confer
                             and
                    Scheduling Conference

                                          Rules 16 & 26




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      Early attention to EDD issues

                          Rule 26(f) – General Provisions

      (f) Conference of Parties;

      … to make or arrange for the disclosures required by
      Rule 26(a)(1), to discuss any issues relating to
      preserving discoverable information, and to
      develop a proposed discovery plan that indicates the
      parties‟ views and proposals concerning:…



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      Early attention to EDD issues

              Rule 26(f)(3) & (4) – General Provisions

      (3) any issues relating to disclosure or discovery of
      electronically stored information, including the form
      or forms in which it should be produced;
      (4) any issues relating to claims of privilege or of
      protection as trial-preparation material, including — if
      the parties agree on a procedure to assert such
      claims after production — whether to ask the court to
      include their agreement in an order;


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      26(a)(1) Disclosures

         What if you are served or joined after the 26(f)
          conference?
         What if your investigation of the facts is
          incomplete?
         What if your opponent‟s disclosures are
          incomplete?
         Must you supplement?




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      What you should consider:

         Discuss what data you have available
         What you are willing to preserve
         How you are willing to preserve
         Production format (native, reasonably searchable,
          paper)
         Agreement and procedures for inadvertent
          production of privileged material and any privilege
          issues




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      Early attention to EDD issues

          Rule 16(b) (5) & (6) – Pretrial Conferences

              The scheduling order also may include:

      (5) provisions for disclosure of discovery of
      electronically stored information;
      (6) Any agreements the parties reach for asserting
      claims or privilege or of protection as trial-
      preparation material after production;


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      What this means:

         Scheduling orders may now include provisions for
          the disclosure or discovery of electronically stored
          information and any agreements between the
          parties protecting privileged documents after
          production.




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      Early attention to EDD issues

                   Rule 26(a)(B) – General Provisions

      Initial Disclosures:

         (B) a copy of, or a description by category and
      location of, all documents, electronically stored
      information, and tangible




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      Inaccessible vs. Accessible ESI
                                          Rule 26(b)(2)
      (B) A party need not provide discovery of electronically stored
      information from sources that the party identifies as not
      reasonably accessible because of undue burden or cost. On
      motion to compel discovery or for a protective order, the party
      from whom discovery is sought must show that the information
      is not reasonably accessible because of undue burden or cost.
      If that showing is made, the court may nonetheless order
      discovery from such sources if the requesting party shows
      good cause, considering the limitations of Rule 26(b)(2)(C).
      The court may specify conditions for the discovery.


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      What this means:

         Permits a party to object to a discovery request
          that calls for electronically-stored information
          which is not “reasonably accessible.”
         New Rule 26(b)(5)(B) allows a party to (promptly)
          claim privilege on a produced document and
          secure its return.
         Court would ultimately rule on any disagreement
          on whether the document is, in fact, privileged.
         Keep running the business as a consideration of
          preserving every shred of data


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      What Sedona has to say

                                    Principle Number 5

      “5. 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.”

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      Interrogatories
                                                Rule 33(d)
      (d) Option to Produce Business Records. Where the answer to an
      interrogatory may be derived or ascertained from the business
      records, including electronically stored information, of the
      party upon whom the interrogatory has been served or from an
      examination, audit or inspection of such business records,
      including a compilation, abstract or summary thereof, and the
      burden of deriving or ascertaining the answer is substantially the
      same for the party serving the interrogatory as for the party
      served, it is a sufficient answer to such interrogatory to specify
      the records from which the answer may be derived or ascertained
      and to afford to the party serving the interrogatory reasonable
      opportunity to examine, audit or inspect such records and to
      make copies, compilations, abstracts, or summaries.

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      What this means:

         New Rule 33 makes clear that a party may answer
          an interrogatory by referring to specific
          “electronically stored information,” just as it my
          with any other business record.

         Responding party would be required to allow
          reasonable access to the electronically stored
          information.




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      Form of Production

                                             Rule 34(a)

         Has language for “testing” and “sampling” of potentially
          relevant material
         Adds ESI, sound recordings, images, or data stored in any
          medium
         Includes translating ESI into a “reasonably usable” format




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      Form of Production

                                             Rule 34(b)

      (b) Procedure. The request shall set forth, either by individual
      item or by category, the items to be inspected, and describe
      each with reasonable particularity. The request shall specify a
      reasonable time, place, and manner of making the inspection
      and performing the related acts. The request may specify
      the form or forms in which electronically stored
      information is to be produced. Without leave of court or
      written stipulation, a request may not be served before the
      time specified in Rule 26(d).



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      What this means:

         The rule does not require the requesting party to
          choose the form of production although Rule
          26(f)(3) is amended to call for discussion of the form
          of production.
         The responding party may object to the requested
          form and state the form in which it intends to
          produce the ESI
         If the requesting party is not satisfied with the form
          of production, the parties MUST meet and confer
          prior to filing motions to compel.
         If a form is not chosen, the production must be in a
          “reasonable usable” form.
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      Safe-Harbor?

                                                 Rule 37(f)

      (f) Electronically stored information. Absent exceptional
      circumstances, a court may not impose sanctions under
      these rules on a party for failing to provide electronically
      stored information lost as a result of the routine, good-
      faith operation of an electronic information system.




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      What this means:

         Committee Notes highlight that ordinary computer
          use necessarily involves routine alteration and
          deletion of information for reasons unrelated to
          litigation.
         Raises the bar on the legal holds process.
         Shines a bright light on “routine, good faith
          operation” and may offer little safety at all.
         In order to be ready organizations are going to
          need to be able to demonstrate consistency and
          good faith practices.


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      New Rule 45

         New Rule 45 imports the protocols of New Rule 34
          for requesting and objecting to the form in which
          electronically stored information should be
          produced.

         New Rule 45 also imports the protocols of New
          Rule 26(b) concerning (i) the production of
          “reasonably accessible” information and (ii) the
          ability to claim privilege on documents or data
          that has already been produced.


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      Privilege

         Most costly aspect
         Most significant contributor is fear
            A specific document

            Category of documents

            Subject matter waiver




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      Proposed Rule 502 – F.R.E
      1.   Subject matter waiver
      2.   Inadvertent disclosure
      3.   Provision on selective waiver
      4.   Parties to litigation should be able to protect
           against the consequences of waiver
      5.   Parties should be able to contract around
           common-law waiver rules by entering into
           confidentiality agreements; but in the absence of
           a court order, these agreements cannot bind non-
           parties.



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      How much will it cost to retrieve?

      1.   Does this involve ESI?
      2.   What ESI does the client have?
      3.   How is it stored?
      4.   Is it reasonably accessible?
      5.   Is it likely to contain privileged information
      6.   How difficult will it be to preserve?




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                            Q&A
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