Eric Saltzman (PSS Systems, Inc.) started us off with a quick summary of the main changes to the FRCP regarding discovery:
(1) adding "electronically stored information" -- to the definition of discoverable materials.
--ONE EFFECT: at early meeting of counsel, this means that counsel must be familiar (very familiar) with data and how it's accessed, data that's not kept and why not, and data that may not be available and while.
(William Coats suggests bringing an IT person with you to the early meeting.)
(2) "Claw back" provision on privileged information in rule 26(b)(5), for privileged information that's erroneously produced
(Judge Mueller reminds us that FRE 502 may also be amended - there's a proposed amendment currently under review - that will underscore this important claw back provision.)
(3) Rule requires production in the form ordinarily maintained or in a form or forms that are reasonably usable.
-- ONE EFFECT: what to do with legacy data?
(4) Sanctions/Failure to comply - absent exceptional circumstances, no sanctions if materials are lost despite in good faith efforts to maintain etc.
-- EFFECT: Does this require backing up? What's reasonable?
Denelle Dixon-Thayer of Yahoo! explains that at Yahoo! they encourage new employees to use the phone, create less email, and build good relationships. She's not pleased with the burden of potentially being sanctioned as an in-house lawyer. They also identified a custodian of records, so they would always have the same 1-2 people for that role. Did a hard look at information systems so they would know where it resides.
Judge Kimberly Mueller (E.D. Cal.), who handles numerous discovery disputes as a Magistrate Judge, says she feels party's Rule 16 statements have not changed as a result of the new rules. Most Rule 16 conferences in her District are not conducted live. She encourages parties who meet and confer to take advantage of requiring the Rule 16 meeting to be live or at least on the phone. Of the few disputes she's seen so far, she's seen plaintiffs and defendants agree on an expert of the database in question and to agree on search queries that the expert will conduct to find the relevant data. She offered one comment on pro se parties, take the pro se litigants seriously. Make the judge only look at the issues once in this area.
Eric offers that mapping sources of data is very difficult in a large organization. First need to figure out who the custodians are, and manage the data sources. There needs to be a lot of communication between the IT and legal departments (a sort of "unnatural alliance").
Kathryn Sheehan of Amazon.com (and one of my former colleagues from my days back at Preston Gates and Ellis, K&L Gates!) discussed that the rule changes have not affected her life as a general matter. She's been at Amazon for 4 years, and in her time there, every judge they have been before has always considered electronic documents to be discoverable. Perhaps the main change is that they now document where things are a little better, but their doc retention policy has been robust and has always been followed. She explained that the connection with the IT dept is important -- her litigation team meets quarterly with the IT group to discuss anything going on. They also educate their outside counsel up front about their policies and the electronic discovery situations.
Rolling over back-up tapes was discussed for some time.
Eric says there's an obligation to preserve, even if it's not accessible, but most companies don't know what to do with this question.
William points us that everything is accessible at some point and reasonable is a subjective standard. Cost shifting may solve some of this, but it can't be the rule that if the other side pays they can have the information broadly requested.