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WORKING COPY 2017 ABA NATIONAL CONVENTION - Revolution of E-discovery

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Brian Koncius

on 10 November 2017

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Transcript of WORKING COPY 2017 ABA NATIONAL CONVENTION - Revolution of E-discovery

Discovery of Electronically Stored
Information ("ESI") Under the Amended Federal Rules

*you must be thinking about this
copy and paste as needed and take advantage of an infinite canvas!

Necessary Resources

What is

Federal Rules &

Brian E. Koncius
Bogas & Koncius PC
Devki K. Virk
Bredhoff & Kaiser
Annual Labor & Employment Law Conference
November 8-11 Washington, DC
Rule 26: Duty to Disclose;
General Provisions Governing Discovery
FRCP 26(b) Discovery Scope and Limits
FRCP 26(c) Protective Orders
The process of identifying, preserving, collecting, preparing, reviewing, and producing electronically stored information ("ESI").
Rule 34(b)(2) Responses and Objections
Technical Specifications
Production Format
Protective Order
Esther G. Lander
Akin Gump
Initial Discovery Protocols

Issues &
Best Practices...


FRCP 26(d) Timing and Sequence of Discovery
...and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
...including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location or persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

26(b)(1) Scope in General.
…Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense...
26(b)(1) Scope in General.
…Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense...
26(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order…The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one of the following:

(B) specifying terms, including time and place
or the allocation of expenses,
for the disclosure of discovery;

26(d) Timing and Sequence of Discovery
(2) Early Rule 34 Requests.
(A) Time to Deliver. More than 21 days after summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) to that party by another party, and
(ii) by that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure
, or
or preservation
of electronically stored information, including the form or forms in which it should be produced.

(D) any issues about claims of privilege…if the parties agree on a procedure to assert these claims after production-whether to ask the court to include their agreement in an order
under Federal Rule of Evidence 502
Rule 26(f)-Conferences of the Parties; Planning for Discovery.
Rule 16 Pretrial Conferences;
Scheduling Management
16(b)(3) Contents of the Order.
(B)Permitted Contents. The Scheduling order may:

(iii) provide for disclosure

or preservation of electronically stored information;
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after information is produced
, including agreement reached under Federal Rule of Evidence 502
direct that before moving for an order relating to discovery, the movant must request a conference with the court

Rule 34(b)(2)(B) Responding to Each Item. For each item or category, the responses must either state that inspection and related activities will be permitted as requested or state
an objection

with specificity the grounds for objecting
to the request, including the reason.
The responding party may state that it will produce copies of the documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection stated in the request or another reasonable time specified in the response.
Rule 34(b)(2)(C) Objections.
An objection must state whether any responsive materials are being withheld on the basis of that objection.
An objection to part of a request must specify the part and permit inspection of the rest.

Rule 37(e) Failure to Preserve Electronically Stored Information

“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.

Hon. Andrew J. Peck
United States District Court Judge
Southern District of New York
"It is time once again, to issue a discovery wake-up call to the Bar in this District"

"The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their "form" files."

"Let us count the ways that defendants have violated the Rules"
"Despite the clarity of the no-longer new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses. This case is the latest."
FRCP 26(f)-Conferences of the Parties; Planning for Discovery.
FRE 502(d)
Why is it important?
-Controlling effect of a court order. A federal court may order that the privilege protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other Federal or State proceeding.

Without a 502(d) order, per Rule 502(b), the party that wishes to claim privilege to a document produced, must show that:
(1) the disclosure was inadvertent
(2) the holder of the privilege or protection took reasonable steps to prevent the disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Rule 37(e) Failure to Preserve Electronically Stored Information
The Sedona Principles
The Sedona Conference Jumpstart Questionnaire
Model ESI Agreements and Entered Orders
“Following the 2015 amendments becoming effective . . . courts . . . continue to hold that discovery is relevant . . . if there is ‘any possibility that the information may be relevant to the general subject matter of the action.’ This statement of the law prior to the 2015 amendment was – at best – incomplete, and, now, following the 2015 amendments is erroneous. That interpretation . . . is contrary to the advisory committee’s pervasive and continuing concerns about the abuse of discovery.” Cole’s Wexford Hotel, Inc. v. Highmark, Inc., 209 F. Supp. 3d 810, 823 (W.D. Pa. 2016)
“Proportionality cannot be demonstrated using boilerplate language. Instead, it is the moving party’s obligation to explain the need for the information, demonstrate why obtaining the information would be a judicious use of resources, and offer an explanation why compliance would not be burdensome. The court’s responsibility, using all the information provided by the parties, is to consider these and all other factors in reaching a case-specific determination of the appropriate scope of discovery.” Escalera v. Bard Medical, Civil No. 16-121, Memorandum Op. & Order at 5 (W.D. Ky., Sept. 12, 2017) (Brennenstuhl, J.)
“If the proportionality requirement has already been in the rules for over thirty years . . . what makes this latest amendment any more likely to achieve success? . . . . Based on a survey of [judges], I conclude that the most likely reasons for the lack of success in achieving proportional discovery to date is a reluctance on the part of judges to view themselves as ‘case managers,’ as opposed to ‘dispute resolvers,’ and a lack of sufficient discovery management training for judges.” Judge P.W. Grimm, “Are We Insane? The Quest for Proportionality in the Discovery Rules,” 36 Review of Litigation 117, 118 (Winter 2017).

“The second part of this process is for judges to faithfully apply the discovery rules and put an end to ‘boilerplate’ discovery by imposing increasingly severe sanctions to change the culture of discovery abuse. I realize my judicial colleagues . .. are overwhelmed with cases, deluged with discovery matters, likely sick and tired of them, and lack the resources needed to deal with them in as timely a manner as they aspire to. In my view, the imposition of increasingly severe sanctions will help solve the problems. Lawyers are advocates and trained to push the envelope – rightly so. Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the ‘boilerplate’ discovery culture, and do our part to solve this cultural discovery ‘boilerplate’ plague.” Ligura Foods, Inc. v. Griffith Labs., Civil No. 14-3041 (MWB), 2017 WL 976626, at *9-10 (ND Iowa Mar. 13, 2017).

“The responses to [the requests] stating that the requests are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? . .. It is time for all counsel to learn the now-current Rules and update their ‘form’ files. From now on in cases before this Court, any discovery response that does not comply with Rules 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).” Fischer v. Forrest, Civil No. 14-1307, Opinion & Order at 5-6 (Feb. 28, 2017) (Peck, J.).

“The Court cannot let this pass without noting that it has previously explained that responding to interrogatories and document requests ‘subject to’ and/or ‘without waiving’ objections is manifestly confusing (at best) and misleading (at worse) and has no basis at all in the Federal Rules of Civil Procedure. . . . as a general matter, if an objection does not preclude or prevent a response or answer, at least in part, the objection is improper and should not be made. . . . To make such an objection in the face of these considerations is to engage in the abusive practice of objecting to discovery requests reflexively – but not reflectively – and without a factual or legal basis [required by the Rules].” Gondola v. USMD PPM, LLC, Civil No. 15-411, Opinion & Order at 7 (N.D. Tex., May 27, 2016) (Horan, J.)

“Improper discovery responses necessarily add to the contentiousness of litigation, because they start with non-disclosure as their premise. . . . I encourage all lawyers, when they receive ‘boilerplate’ objections, to informally request that opposing counsel withdraw them . . . If opposing counsel fail to withdraw their ‘boilerplate’ objections, the lawyers should go to the court and seek relief in the form of significant sanctions – because the offending lawyers have been warned, given a safe harbor to reform and conform their ‘boilerplate’ discovery practices to the law, and failed to do so.” Ligura Foods, Inc. v. Griffith Labs., Civil No. 14-3041 (MWB), 2017 WL 976626, at *9-10 (ND Iowa Mar. 13, 2017).
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