The New eDiscovery Rules Mean More Work for IT

By Michael Sears

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In December of 2006, Congress passed the Federal Rules of Civil Procedure (FRCP). This Act significantly updates the procedures and processes that litigants must follow regarding electronically searchable information that may be used as evidence at trial.

In the intervening months, more than 25 U.S. District Courts have enacted special rules addressing electronic discovery. Beyond that, a handful of Law review articles have been published addressing these issues. Law reviews are relevant because they can be used by courts in framing some of the more legally technical details of the decisions and rulings that courts make.

The new FRCP, like all laws, are subject to modification, interpretation and growth, as courts message and build on (or take down), the provisions of the laws. This article represents a snapshot of how the courts are working with the FRCP for eDiscovery, and how those rulings might impact your jobs as CIOs and IT managers.

The Act takes into consideration the major technical innovations effecting digital files and documents. They reflect the trends that indicate this mass of data will grow by double digits year upon year. From an eDiscovery standpoint, the last few years have been a wake-up call for courts, lawyers and IT, in part due to the major judgments and penalties that companies have paid as they ran afoul of the changing times.

The Rules to Know

In an earlier installment of this series, we reviewed the two major provisions that will most directly effect you, the IT manager. In summary, they were:

Rules 26 & 26(b)2, which describe what is discoverable. Rule 26 assumes that everything in your corporate files that is the subject of a lawsuit, and not privileged communication, is discoverable. While this is a very broad provision, Rule 26(b)2 serves to moderate the scope by suggesting a "reasonably accessible" test—you have to look, but you don't have to incur a large expense if you can show that you tried in earnest to find the documents.

Rule 37(f) is the "safe harbor" provision, which states if you make a good faith effort to maintain your data in an active records retention policy, you will not be liable to produce the record if it has been deleted in the normal course of business.

For this article, I add two more provisions:

Rules 16(b) & 26(f), the “meet and confer” conference. These rules inform counsel and courts that eDiscovery is an important early factor in the litigation process. Both parties must meet to agree upon the way that discoverable information (and digital data) will be handled between the parties.

Rule 34 governs the methods and “forms of production” that need to be agreed to and used in the exchange of electronically stored information (ESI).

In general, absent a specific request, a party responding to an eDiscovery request should produce the relevant data in the format in which it is ordinarily saved. If it was saved in a proprietary format, and the receiving party has no way of reviewing that data in that format, then it should be delivered in a useable format.

Both of these new additions appear to be where the early work has been done by courts and scholars, and rightly so. Rules 16(b), 26(f) and Rule 34 operate in the early stages of litigation, where plaintiffs and defendants do their “dance” in order to gain advantage in a trial, and obtain the “smoking gun” they hope will move a court to grant a Summary Judgment (automatic win) to the moving party.

Rules 16(b) and 26(f) have generated the majority of the comments. At the initiation of a suit, there are time frames that automatically go into effect in order to streamline the litigation progress. Lawyers meet, information is exchanged, schedules are set, and first positions, both plaintiff and defense, are re-enforced. For the IT manager, the work is just beginning.

The Rules and You

When notice of litigation is received, IT must take steps to identify where the relevant data might be stored. But not all of that data needs to be turned over to the other side. Some of it is privileged (your lawyer will help you there), and some of it may be too expensive to easily retrieve (again, talk to your lawyer).

Nonetheless, the Rules state that at the first conference, the responding party must detail what the data are and where it is stored. A lot of that is IT’s role. Since December 2006, courts and commentators suggest there is quite a lot a company may be expected to do. For instance, it may be expected that the network infrastructure be described, as a drawing or in words. That architectural description was considered in the notes to the Rules and, as the Rules appear to be applied in some jurisdictions, some courts appear to now have taken the suggestion literally.

In the same vein, some courts expect lawyers should arrive, prepared to not only discuss the what and where of the data, but the “how it works” of the network. Some courts expressly suggest a networking expert (that means IT) should accompany the lawyer to the “meet and confer” conference; yet another time commitment on your staff.

Rule 34, the formatting rule has yet to be addressed in a big way. However, several commentators expect that as cases progress through the system and as more digital documents get exchanged, many of which can not be easily read, the formatting wars will erupt, and therefore, courts will need to be more specific. Stay tuned on this one.

Finally, Rule 26 & 26(b)2, the “reasonably accessible test” has not made much progress in court, but it has in academia. Lawyers, law students and economists have written and blogged about the definition of “reasonably accessible”.

I like an early suggestion that attempts to quantify the costs, and who should bear it suggested by Theodore Hirt, writing in the Richmond Journal of Law and Technology (13 Rich. J.L. & Tech. 12 (2007)). Hirt suggests the beginnings of a ratio analysis the courts could go through to determine if enough relevant data has been found in an initial search, and whether a court should order that “sampling” of the more hard-to-get data is necessary or not.

Relative to IT, I expect that rule 26(b)2 will be where most of the action will be. But that said, courts have moved in interesting and indirect ways. The best stance for an IT manager to have today is to closely partner with legal counsel, take eDiscovery seriously, invest time in the people and tools necessary to succeed, and to stay tuned here for more progress reports.

Michael Sears is the principal advisor on eDiscovery at Mathon Systems. He is a member of the California Bar Association, and a frequent commentator on the nexus of the law, business and technology.