Managing Discovery of Electronic Information

Managing Discovery of Electronic Information
Managing Discovery of Electronic Information
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This third edition of the pocket guide on managing the discovery of electronically stored information (ESI) reflects the December 1, 2015, amendments to the Federal Rules of Civil Procedure and the reasons for the amendments described by Chief Justice Roberts in the 2015 Year-End Report on the Federal Judiciary: (1) encourage greater cooperation among counsel; (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information.

Table of Contents

Preface 1 What is electronically stored information (ESI) and how does it differ from conventional paper-based information? 3

What is the judge’s role in the discovery of ESI? 6

How does a judge promote early consideration of ESI discovery issues? 9

What matters should be discussed at the Rule 26(f) conference? 11

What preparations for the Rule 26(f) conference should be required? 13

What continuing consultation between parties should be required? 15

What matters should be covered during the Rule 16 conference and included in the initial scheduling order? 15

How should a judge manage ESI in a small case? 17

What disclosures of ESI are required under Rule 26(a)(1)? 18

How does a judge limit the scope of ESI discovery to that proportional to the needs of the case? 19

How may Rule 26(g) sanctions be used to promote cooperation and proportionality in ESI discovery? 23

What type of information is “not reasonably accessible”? 23

When does good cause exist to allow the discovery of “not reasonably accessible” information? 24

What factors are relevant to allocating costs? 26

What principles apply to discovery from nonparties under Rule 45? 29

In what form or forms should ESI be produced? 31

How might data be searched to respond to discovery requests or subpoenas? 34

How should privilege and waiver issues be handled? 36

What are “clawback” and “quick peek” agreements? 36

How can a court shield parties from waiving a privilege through inadvertent disclosure? 37

How should a court test assertions of privilege? 37 How is Federal Rule of Evidence 502 used to reduce cost and delay? 38

Litigation holds: How can the court promote the parties’ reasonable efforts to preserve ESI? 40

What are the standards for finding spoliation and the criteria for imposing sanctions? 43

Where can a judge find additional information and guidance? 45 Conclusion 48

Glossary 49

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  • Discovery of Electronic Information
  • Electronic Information
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