Kenneth Reiss is Senior Counsel for Litigation with Northrop Grumman Corporation in Arlington, Virginia.
The e-discovery amendments to the Federal Rules of Civil Procedure are now effective and will no doubt change the face of litigation. Here are ten tips to remember when dealing with e-discovery.
1. Read the rules. There is no substitute for actually reading the text of the amendments and the associated Advisory Committee Notes. In particular, read Federal Rules of Civil Procedure 16(b); 26(a), (b) and (f); 33(d); 34; 37(f); and 45.
2. E-discovery does not mean that everything needs to be saved. Some people mistakenly believe that the new rules require companies to save all electronic information, especially e-mails, as part of their normal retention requirements. The rules in fact do not prohibit companies from implementing document-management policies that limit how long information is retained. Once litigation is reasonably anticipated, though, clients will need to suspend operations that would otherwise eliminate relevant information.
3. Preserve immediately. You can’t necessarily wait until a lawsuit is filed against your client before you issue a preservation memo. As soon as litigation is reasonably anticipated, your client needs to save relevant information. And don’t just send a boiler-plate preservation memo. Ensure that the witnesses understand their obligations.
4. Understand your client’s information systems. It’s difficult to effectively collect electronic information without a basic understanding of how your client manages its information. Consider all sources where pertinent electronic data may be stored, including network servers, hard drives, backup tapes, personal devices such as blackberries, and removable storage media. Pay particular attention to how your client’s e-mails are managed. When litigation begins, quickly consider whether automatic purging practices and backup-tape recycling need to be halted.
5. Understand what is reasonably accessible. Just because relevant information exists within your client’s systems doesn’t necessarily mean that you will have to produce it. You need to first determine whether the data is reasonably accessible. If it is unduly burdensome or costly to produce, the requesting party will need to demonstrate good cause before a court will order production.
6. Be prepared for the initial discovery conference. The new rules require you to discuss e-discovery with your adversary at least 21 days before the initial scheduling conference. If you do not have a handle on what information is available, what format it’s in, and its relative accessibility early in the case, you are far more vulnerable down the road to future motions practice and onerous e-discovery obligations.
7. Work closely with your client’s IT personnel. You need to educate your client’s IT personnel about e-discovery. Once litigation begins, work closely with them to ensure that relevant data is gathered. It is especially important to understand each other’s terminology so that you’re speaking the same language. And don’t forget to utilize their expertise in obtaining electronic information from the other side.
8. Consider an early privilege waiver agreement. The risks of inadvertently producing privileged information are significantly higher when discovery of electronic information is sought. To minimize the risk of waiver, consider seeking an agreement with your adversary that inadvertent production will not waive the privilege. Get any such agreement reduced to a court order.
9. Don’t forget about metadata. Most applications such as e-mail and word-processing systems store hidden data about your data. This metadata usually is not visible if you just print information in hardcopy form. Preserve your data in electronic format so that metadata is not destroyed.
10. Be prepared to explain. Opposing counsel is likely to be far more inquisitive on e-discovery issues. Be prepared to answer discovery requests and provide deposition testimony about your client’s computer systems and the processes you used to preserve and collect relevant information.
• The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines. 2006. PC # 5110569. Law Practice Management Section. To order online, visit www.ababooks.org