Managing electronic discovery: Views from the judges

Fordham Law Review

Volumn 76, Issue 1, 2007, Pages 1-31

  Rosenthal, Lee H ^a   Francis IV, James C ^a   Capra, Daniel J ^b  

^a Southern District of Texas ^*  (United States)

^b FORDHAM UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 36349013289     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (68)

1. Panel Discussion, Federal Sentencing Under "Advisory" Guidelines: Observations by District Judges, 75 Fordham L. Rev. 1 (2006) (discussing the implications of United States v. Booker, 543 U.S. 220 (2005)).
2. Manual for Complex Litigation (Fourth) (2004).
3. 205 F.R.D. 421 (S.D.N.Y. 2002).
4. 223 F.R.D. 162 (S.D.N.Y. 2004).
5. 233 F.R.D. 363 (S.D.N.Y. 2006).
6. See Judicial Conference of the U.S., Report of the Advisory Committee on Evidence Rules, Fed. R. Evid. 502 (Proposed 2007) [hereinafter Advisory Committee Report], available at http://www.uscourts.gov/rules/ Reports/EV05-2007.pdf.
7. 28 U.S.C. §§2071-2077(2000).
8. See Fed R. Civ. P. 16(b)(5) (allowing the court to address "provisions for disclosure or discovery of electronically stored information" in the Rule 16 scheduling order); Fed. R. Civ. P. 26(a)(1)(B) (requiring parties to provide "a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses"); Fed. R. Civ. P. 26(f)(3) (directing parties to discuss "any issues relating to disclosure or discovery of electronically stored information"); Fed. R. Civ. P. Form 35 (including a provision for parties to account for the "[disclosure... of electronically stored information" in their jointly proposed discovery plan).
9. See Fed. R. Civ. P. 26(f)(3) (requiring parties to discuss "the form or forms in which [electronically stored information] should be produced").
10. Fed. R. Civ. P. 26(f) (directing the parties to discuss "any issues relating to preserving discoverable information," including electronically stored information).
11. Fed. R. Civ. P. 26(f)(4) (requiring parties to address "any issues relating to claims of privilege or of protection as trial-preparation material").
12. See Advisory Committee Report, supra note 6.
13. Fed. R. Civ. P. 26(b)(5) (addressing "claims of privilege or protection of trial preparation materials").
14. See Fed. R. Civ. P. 26(b)(5)(B) (establishing standard procedure for when "information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material").
15. See id. ("After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.").
16. See Advisory Committee Report, supra note 6, at Fed. R. Evid. 502(b) (Proposed 2007) (providing the requirements to establish that an inadvertent disclosure did not operate as a waiver of privilege).
17. Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002).
18. Fed. R. Civ. P. 26(b)(2)(B).
19. See id. (providing that "the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost").
20. Id. ("If [the burden] is [met], 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).").
21. Fed. R. Civ. P. 26(b)(2) advisory committee's note (providing that appropriate considerations include: "(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; (7) the parties' resources").
22. See Best Buy Stores, L.P. v. Developers Diversified Realty Corp., No. 05-2310, 2007 WL 333987, at *1 (D. Minn. Feb. 1, 2007).
23. Fed. R. Civ. P. 26(b)(2) advisory committee's note (stating that "[t]he good-cause inquiry and consideration of the Rule 26(b)(2)(C) limitations are coupled with the authority to set conditions for discovery," including "limits on the amount, type, or sources of information required to be accessed and produced").
24. Id. (providing that the court has authority to order the "requesting party" to incur "part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible").
25. Fed. R. Civ. P. 34(a) (providing that "[a]ny party may serve on any other party a request... to produce... electronically stored information").
26. Fed. R. Civ. P. 34(b) (establishing procedure to determine the form in which electronically stored information is to be produced).
27. Fed. R. Civ. P. 34(b)(ii) (providing that "if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable").
28. Fed. R. Civ. P. 34(b) advisory committee's note ("[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.").
29. Barbara J. Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins, Fed. Judicial Ctr., Managing Discovery of Electronic Information: A Pocket Guide for Judges 5 (2007).
30. Fed. R. Civ. P. 37 (establishing procedure for the court to impose sanctions for failing to make disclosures or cooperate in discovery).
31. Fed. R. Civ. P. 37(f).
32. Fed. R. Civ. P. 37(f) advisory committee's note.
33. Id. ("Among the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.").
34. Id. (explaining that good faith "depends on the circumstances of each case," including "whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources").
35. See, e.g., In re NTL, Inc. Sec. Litig., Nos. 02 Civ. 3013, 02 Civ. 7377, 2007 WL 241344, at *14-22 (S.D.N.Y. Jan. 30, 2007) (granting a party's request for an adverse inference jury instruction as a sanction for spoliation).
36. See Treppel v. Biovail Corp., 233 F.R.D. 363, 370-72 (S.D.N.Y. 2006).
37. See Fed. R. Civ. P. 37(f) advisory committee's note ("Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case.").
38. See Columbia Pictures Indus, v. Bunnell, No. CV 06-1093, 2007 WL 2080419, at *3 (C.D. Cal. May 29, 2007).
39. See James C. Francis IV, Cost-Shifting and Preservation of Electronic Information: Applying Cost Allocation at the Preservation Stage, Corporate Counsel (E-Discovery Supp.), Oct. 2004, at 14EDD.
40. 306 F.3d 99, 113 (2d Cir. 2002).
41. See Miller v. Holzmann, No. 95-01231, 2007 WL 172327, at *5-6 (D.D.C. Jan. 17, 2007).
42. See In re NTL, Inc. Sec. Litig., Nos. 02 Civ. 3013, 02 Civ. 7377, 2007 WL 241344, at *19 (S.D.N.Y. Jan. 30, 2007).
43. See Kucala Enters., Ltd. v. Auto Wax Co., No. 02 C 1403, 2003 WL 22433095, at *2 (N.D. 111. Oct. 27, 2003).
44. No. H-06-2849, 2006 WL 3837518 (S.D. Tex. Dec. 28, 2006).
45. Id. a t*13.
46. Id. at *9.
47. Id. at*14.
48. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546-48 (D. Md. 2007).
49. Compare Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646-52 (D. Kan. 2005) (holding that metadata is presumptively discoverable), with Kentucky Speedway, LLC v. Nat'l Ass'n of Stock Car Auto Racing, Inc., No. 05-138, 2006 U.S. Dist. LEXIS 92028, at *20-25 (E.D. Ky. Dec. 18, 2006) (holding that metadata generally is not discoverable).
50. See Amersham Biosciences Corp. v. PerkinElmer, Inc., No. 03-4901, 2007 WL 329290, at *2 (D.N.J. Jan. 31, 2007).
51. See Disability Rights Council v. Wash. Metro. Transit Auth., No. 04-498, 2007 WL 1585452, at *8 (D.D.C. June 1, 2007).
52. 205 F.R.D. 421, 429 (S.D.N.Y. 2002) (creating an eight-factor test to determine whether there should be an allocation of costs for electronic discovery).
53. 217 F.R.D. 309, 322 (S.D.N.Y. 2003) (modifying Rowe to create a new seven-factor test). Judge Shira Scheindlin lists the factors in order of importance. See id.
54. See Fed. R. Civ. P. 26(b)(2) advisory committee's note.
55. See Rowe, 205 F.R.D. at 421.
56. See Advisory Committee Report, supra note 6, at Fed. R. Evid. 502 (Proposed 2007).
57. Professor Daniel J. Capra has been appointed by Judge Scheindlin as a special master to rule on discovery disputes for this large securities fraud class action. See generally In re IPO Sec. Litig., No. 21 MC 92, 2004 WL 60290 (S.D.N.Y. Jan. 12, 2004).
58. 28 U.S.C. §§ 2071-2077 (2000).
59. See id. § 2074(b) ("Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.").
60. See id. § 2072(a) ("The Supreme Court shall have the power to prescribe general rules of practice and procedure...."). Section 2074 provides that only rules of evidence must be approved by Act of Congress, and all other rules simply have to be transmitted to Congress in a fashion outlined by the rule. Id. § 2074.
61. See Advisory Committee Report, supra note 6, at Fed. R. Evid. 502(a) (Proposed 2007) (providing that disclosure of privileged material only waives the attorney-client privilege or work-product privilege to other undisclosed materials under specified circumstances).
62. See id. at Fed. R. Evid. 502(b) (Proposed 2007).
63. Id. at Fed. R. Evid. 502 advisory committee's note (Proposed 2007) (stating that using an "advanced analytical software application[]" to screen for privilege may be considered taking "reasonable steps").
64. Id. at Fed. R. Evid. 502(d) (Proposed 2007) ("A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.").
65. Id. ("The order binds all persons and entities... whether or not they were parties to the litigation.").
66. Id. at Fed. R. Evid. 502(f) (Proposed 2007) (providing that the rule also "applies to state proceedings" and applies "even if state law provides the rule of decision").
67. See id. at Fed. R. Evid. 502(c) (Proposed 2007).
68. See In re Dow Corning Corp., 261 F.3d 280, 284 (2d Cir. 2001).