The Proposed Federal E-Discovery Rules | FindLaw (2022)

By ANITA RAMASASTRY
Wednesday, Sep. 15, 2004

In recent lawsuits, the proverbial smoking gun may not be an interoffice memorandum found in a locked file cabinet. Instead, it may be an e-mail message stored and forgotten on someone's hard drive

This reality has significantly altered discovery - the process by which parties to a litigation request documents from each other; produce documents to each other; and serve and answer each other's interrogatories and requests for admission.

Accordingly, on August 15, the federal judiciary disseminated a proposed set of rules to govern "e-discovery" - that is, the exchange of electronic information in litigation proceedings.

At present, at least four federal district courts have adopted local rules to address e-discovery. Two states have also court rules that specifically address e-discovery. The proposed federal amendments would be the first attempt to create a coherent set of rules for the entire federal judiciary.

The proposal, if adopted, would amend the Federal Rules of Civil Procedure (FRCP), which govern all federal civil litigation -- and would take effect by December 1, 2006. Currently, we are within the six-month period during which comments on the rules can be made to the Advisory Committee on Federal Rules.

In this column, I will comment on the strengths and weaknesses of the draft e-discovery rules. The new rules correctly advise discussion of e-discovery at parties' initial conference - and laudably would set rules for when privileged e-material is inadvertently disclosed.

But the rules' proposals as to when sanctions can be imposed for deletion of electronic information, and as to how hard companies must look for backup data and the idea, leave something to be desired. Both employ vague reasonableness standards that are open to interpretation.

(Video) Potential Federal Rules Changes and the Impact on E-Discovery Technology

E-Discovery: How the FRCP Currently Address It, and Why It's Different

Electronic data and records are certainly not new - nor is e-discovery. In 1970, the FRCP's definition of "documents" was amended to include "data compilations from which information can be obtained." And in 1993, a new Rule - Rule 26(a)(1)(B) - required that parties initial disclosures to each other encompass not only relevant documents and "tangible things," but also relevant "data compilations."

Still, the FRCP do not entirely account for the important differences between regular discovery, and discover of electronic data. For one thing, electronic data may be harder to review - requiring the examination of volumes of data and records contained on hard drives, servers, back-up tapes, and other data storage devices. In part, that's because it may be more voluminous: With electronic storage, we now have an exponentially greater amount of data that can be stored and hence retrieved.

For another thing, the lifespan of electronic data differs in important ways from that of paper data. On one hand, computer data can be destroyed or lost due to problems with hardware and software - or intentionally deleted. If there are no paper backups, the data may be lost forever. On the other hand, though, electronic data can have a longer lifespan, in a sense: Electronic documents often continue to exist (either as backups or originals) despite an author's intention to destroy them.

The content of e-documents also tends to differ: They can be more revealing than paper documents, in two ways.

First, they are often automatically saved and encoded with "metadata" - which states when they were created, modified, and accessed, and potentially, by whom they were accessed. Thus, those who create, access, or modify such a document may leave a more specific trail than they realize.

Second, because of their informality, e-documents such as e-mails may contain more off-the-cuff, candid remarks - the kind of remarks that, due to their candor, may be the "smoking gun."

Calling for Early Attention to Electronic Discovery Is a Good Idea

Under the proposed new rules, at their initial conference, parties would be required to discuss "any issues relating to disclosure or discovery of electronically stored information." The commentary notes that the parties should balance the need to preserve electronic information, against the parties' needs to continue the ordinary operations of computer systems.

The ABA's E-Discovery Task Force has suggested, in particular, what parties ought to discuss. The Task Force reminds lawyers to consider databases, networks, computer systems, servers, archives, backup or disaster recovery systems, laptops, personal digital assistants, mobile phones and pagers as possible e-discovery sources.

(Video) E-Discovery- Rules

In addition, it notes that lawyers may want to discuss - among other things - the subject matter of the e-discovery, the time necessary to produce it, whether the data exists in a "searchable form," whether the data will be produced in electronic form or hard copy, relevant data retention policies and the allocation of costs.

Inadvertent Disclosure of E-Discovery: The New Rules' Sensible Procedure

Inadvertent disclosure has always been a problem in discovery: What if attorney-client privileged information or attorney work product, for instance, is inadvertently sent to the other side? A privileged memo from an attorney can easily be missed among a pile of other, non-privileged memos.

Electronic discovery may raise the risk of inadvertent disclosure - for the information stored can be voluminous, and hard to review. Accordingly, the proposed rules state that if a party notifies his opponent of inadvertent disclosure "within a reasonable time," the opponent must "promptly return, sequester, or destroy the specified information and any copies." (As it is, parties sometimes enter into agreements that allow for essentially the same procedure -- known as "quick peek" and "claw back" agreements.)

Beyond this, current rules would not change when e-discovery is at issue: Ethics rules would continue to require an attorney to stop reading if he realizes he is reading an inadvertently produced document. The producing party would still have to prepare a privilege log - matching document numbers with claimed privileges - so assertions of privilege could be challenged in court. Finally, issues of privilege waiver - that is, whether a party can no longer claim privilege on a given e-document due to its own conduct - would still be left to the court.

The Recurring Issue of E-Mail Deletion: The New Rules Are Right to Address It

The proposed new rules would also take on the recurring issue of e-mail deletion - and resulting sanctions. As recently as this year, several cases raising this issue have cropped up - as I discuss below. It is certainly time to confront the issue head on.

Currently, a number of questions remained unanswered by the FRCP, including these: For how long do companies have to retain electronic data? What duty do they have to retrieve and provide such data when they are sued? Do they have to keep backups forever?

To some extent, court discovery orders have filled the gap in the rules. And e-mail deletions that have violated those orders have led to sanctions. In July 2004, for instance, a federal district court in New York City ordered such sanctions against a company in an employment discrimination dispute, Zubulake v. USB Warburg.

Judge Shira Scheindlin's sanctions for employees' deletions of e-mails pertinent to discovery requests included the sanction of an "adverse inference." (That is, the judge allowed the judge to infer that the deleted emails would have been adverse to the company's position in the litigation.) The judge made clear that she thought the company ought to have warned employees not to delete relevant email from the start of the litigation - and when the email deletions were revealed, she ordered that the company immediately inform all employees not to delete anything further.

(Video) Introduction to E-Discovery: Module 1 of 5

Only one day after the Zubulake decision was released, the U.S. District Court for the District of Columbia issued similar sanctions. U.S. District Judge Gladys Kessler noted that tobacco giant Philip Morris had failed to retain e-mail messages despite an October 1999 court order, and the company's own electronic discovery retention policy.

Worse, this failure was not the fault of new or low-level employees: To the contrary Judge Kessler found it "astounding that employees at the highest corporate level in Philip Morris, with significant responsibilities pertaining to issues in this lawsuit" were among those who failed to follow the order and the internal policy.

Judge Kessler ordered Philip Morris and its parent company to pay $2.75 million for e-discovery violations. In addition, she precluded several witnesses from testifying at trial.

The Controversial Safe Harbor the Rules Would Create for Routine Deletions

In light of cases like these, companies have complained that deletions, at times, may not be intentional - but rather, automatic. To respond to this complaint, the proposed new e-discovery rules would create a "safe harbor" for certain types of deletions, ensuring they could not be sanctioned. (This "safe harbor" would not apply, however, when a specific court order requiring preservation is in place.)

Two conditions would have to be satisfied for the safe harbor to apply. First, the electronic information must have been lost or destroyed as a result of the routine operation of the party's computer system--such as information lost when back-up tapes are recycled, or deleted information is automatically overwritten.

Second, the party must have taken reasonable steps to preserve the information after it knew the information to be relevant. (In addition, the report notes that in assessing the reasonableness of the steps taken by the party, the court should bear in mind what the party "knew or reasonably should have known when it took steps to preserve electronically sated information.")

Is the Safe Harbor's "Reasonableness" Standard the Correct One?

Is the safe harbor's "reasonableness" standard the correct one? Or should sanctions require intentional or willful conduct? The Committee is asking for feedback on this very issue.

In my view, the negligence standard is far preferable. If the level of culpability is raised to intentional or willful conduct, parties may be incentivized to have lax standards for preservation of electronic records. After all, the more quickly and completely automatic deletion works at a given company, the less the risk of intentional, willful deletion by a person would even be raised.

(Video) The New Amendment to Federal Rule of Evidence 902 and its Impact on eDiscovery Best Practices

With the negligence standard, however, some vagueness does remain: What is "reasonable" when it comes to preserving electronic information?

One suggestion made to the committee, in particular, is a smart one: If a party took reasonable steps to notify the custodian of electronic information at the company of the need to preserve certain information, it should be deemed to have made out a prima facie - that is, an initial, though rebuttable - case that it fits within the safe harbor.

The Committee should also be open to a different approach: Setting a "safe harbor" here that stipulates for how many years - and with what kind of safeguards -- companies must preserve data in order to take advantage of the reasonableness standard. Clear limits and rules would be helpful here; reasonableness is not enough.

Without clearer rules, a "reasonableness" standard may end up punishing the innocent - companies whose good faith e-preservation methods weren't up-to-the-the-minute. It may also end up letting the guilty free - if companies' quick deletion systems are deemed acceptable (because common), even though they leave plaintiffs with scant discovery to review.

Must Hard-To-Access Data Be Produced? The Rules Ask For "Reasonableness"

A final major question addressed by the proposed rules is this one: How should the FRCP deal with discovery of e-data that is not readily accessible? For instance, must companies search "legacy data" that is currently unused and stored on an obsolete system, or inactive data stored for disaster recovery purposes?

Again, the rules take refuge in "reasonableness" - at the expense of clarity. Among the proposed amendments is one that would relieve a party from the obligation to retrieve and produce e-discovery that is "not reasonably accessible." The court could require disclosure of such information only for good cause and on specified terms and conditions.

A typical example of hard-to-get information would be information wiped from a computer hard drive on an employee's termination. The data can be recovered, but it takes time and money. Still, in an employment case that directly raises the reasons for the employee's being fired or quitting, the data may be central to the plaintiff's case.

Without more guidance - including concrete examples in the Commentary -- as to what "reasonably accessible" means, this rule should not be adopted. It threatens to give companies too much of an "easy out" - an excuse not to offer the plaintiff all relevant records.

In sum, the proposed new e-discovery rules show that we are still adjusting to the realities of such discovery. We should resist the urge to simply pass the ball to courts, with reasonableness standards that have little content until a judge applies them, and offer litigants more specifics as to what, practically speaking, they must, and must not, do.

(Video) Civil Litigation II Discovery intro with audio

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

FAQs

What is the purpose of e-discovery? ›

E-discovery is a form of digital investigation that attempts to find evidence in email, business communications and other data that could be used in litigation or criminal proceedings. The traditional discovery process is standard during litigation, but e-discovery is specific to digital evidence.

What is the e-discovery process? ›

Electronic discovery -- also called e-discovery or ediscovery -- is the process of obtaining and exchanging evidence in a legal case or investigation. E-discovery is used in the initial phases of litigation when involved parties are required to provide relevant records and evidence related to a case.

What is eDiscovery in legal tech? ›

Electronic discovery, commonly known as e-discovery, is the process by which electronic data is identified, collected and produced, in response to a request for evidence in a civil or criminal court case.

What are eDiscovery services? ›

eDiscovery software allows legal professionals to process, review, tag, and produce electronic documents as part of a lawsuit or investigation. The right software can help attorneys discover valuable information regarding a matter while reducing costs, speeding up resolutions, and mitigating risks.

Is Ceds certification worth? ›

Should you go for it? Gaining certification can lead to new job and advancement opportunities and, if leveraged, might help you command a more competitive salary. According to an ACEDS survey, respondents were 63% more likely to hire a candidate with CEDS certification over a candidate without it.

What are the important concepts of eDiscovery? ›

Takeaway: Before taking on your first case, make sure you understand these 7 concepts: (1) Cloud eDiscovery, (2) Drag-and-drop uploads, (3) Advanced searches, (4) Virtual review tools, (5) Technology-assisted reviews, (6) Production formats, (7) Metadata.

What is the ultimate goal of the Electronic Discovery Reference Model? ›

The Electronic Discovery Reference Model (EDRM) is a framework that outlines standards for the recovery and discovery and of digital data. The EDRM is designed to serve as guidance for gathering and assimilating electronic data during the legal process, including criminal evidence discovery.

What is eDiscovery and why is it relevant to legal practice and civil procedure? ›

E-Discovery

This Rule provides that any party to any action may require any other party to make discovery on oath within twenty days of all documents and tape recordings relating to any matter in question in such action which are or have at any time been in the possession or control of such other party.

What are ESI tools? ›

Emergency Severity Index (ESI): A Triage Tool for Emergency Departments.

Why is eDiscovery important to lawyers and the legal profession? ›

e-Discovery is the most efficient and secure avenue towards arming clients with the information, data points, and higher knowledge necessary to win cases and settle lawsuits. With the proper implementation of e-Discovery, your law firm will be able to safely manage and access discovered digital data with ease.

What is the difference between eDiscovery and digital forensics? ›

Simply defined, eDiscovery is the process of identifying, preserving, collecting, processing, reviewing, and analyzing electronically stored information (ESI) in litigation. The digital forensics process involves identifying, preserving, collecting, analyzing, and reporting on digital information.

What is Consilio? ›

Consilio is a global leader in eDiscovery, document review, risk management, and legal consulting services. The company supports multinational law firms and corporations using innovative software, cost-effective managed services and deep legal and regulatory industry expertise.

What is discovery and how does electronic discovery differ from traditional discovery? ›

The main difference between Electronic and traditional discovery is that electronic discovery includes the information stored in the digital form and needs a computer to be accessed, while traditional includes the discovery done by writing on paper and can be accessed without computers.

What is ESI data? ›

Electronically stored information (ESI) is data that is created, altered, communicated and stored in digital form.

What does Aceds stand for? ›

Association of Certified E-Discovery Specialists (ACEDS)

Why is eDiscovery important to a company? ›

As part of IG, eDiscovery is a crucial element to plan for – as any business runs the risk of being required to produce records and data not only to litigation ends, but even for some of the many laws governing breaches (such as GLBA, HIPAA, PCI etc.).

What is eDiscovery in forensics? ›

E-Discovery can be summarized as the search for relevant evidence from within a set of data. E-Discovery forensics involves taking data, usually documents, and searching over that data with keywords, date restrictions, or other metrics, segregating out documents deemed relevant to the case.

What are the data elements involved in eDiscovery? ›

The Electronic Discovery Reference Model (EDRM) divides the legal eDiscovery process into six stages: identification, preservation, collection, processing, review and production. Identification, preservation and collection.

What are the steps of the EDRM model? ›

The EDRM model consists of nine stages: information governance, identification, preservation, collection, processing, review, analysis, production, and presentation.

What is EDRM workflow? ›

The EDRM (Electronic Discovery Reference Model) is an eDiscovery workflow and framework that the legal and IT fields accept as broad outline for the steps to consider throughout the eDiscovery lifecycle in the United States. The EDRM model has been around since 2005, and has stood the test of time.

Is an electronic discovery techniques used to determine and reveal technical criminal evidence? ›

Cyberforensics is an electronic discovery technique used to determine and reveal technical criminal evidence. It often involves extracting data from local and/or cloud storage to electronic to establish a chain of evidence for legal process purposes.

What is eDiscovery quizlet? ›

eDiscovery is the process of finding electronic data or information for legal evidence.

What does early case assignment mean? ›

Early Case Assessment (ECA) refers to a variety of tools and workflows for investigating and quickly learning about your data as it relates to eDiscovery and potential litigation. The goals are to reduce the amount of data needing full review and prioritize documents requiring immediate review.

What is data processing in eDiscovery? ›

eDiscovery data processing, sometimes referred to as ESI processing, is when collected data undergoes cataloging, error-checking and indexing. It takes the data that was gathered from various people and systems and prepares it for the next step.

Can I party in litigation refuse to discover documents? ›

No, however failure to ask for discovery may result in a disorderly presentation of one's case and the court may show its disapproval with an adverse costs order. The procedure in respect of discovery in the High Court and the Magistrate's Court is very similar.

How does eDiscovery work law? ›

What is eDiscovery? eDiscovery refers to the retrieval of materials originating from a computer, and it extends beyond computer files to encompass the analysis, gathering, processing, review and production of discovery materials in electronic format from start to finish.

Which among the following listed below of cloud aspects complicates eDiscovery? ›

Which of the following cloud aspects complicates eDiscovery? With multitenancy, eDiscovery becomes more complicated because the data collection involves extra steps to ensure that only those customers or systems that are within scope are turned over to the requesting authority.

What does ESI level 3 mean? ›

ESI 3 – Stable and should be seen urgently by a physician (within 30 minutes), often require laboratory and radiology testing, medication, and are most often are discharged. ESI 3 cases represent 39% of all patients and 24% of ESI 3 cases are admitted.

How do I determine what metadata should be preserved or discovered in eDiscovery? ›

Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

What are the three categories of ESI? ›

Types of ESI That Must Be Collected
  • Active. Data that you interact with on a regular basis, such as email and other traditional files that are stored on a local hard drive or network drive. ...
  • Cloud. ...
  • Mobile. ...
  • Offline. ...
  • Backups. ...
  • Hidden.

What might result if there is lack of proper training in eDiscovery software? ›

The lack of a proper eDiscovery Program results in individual units having to attempt to solve their own retention and data evidence management and collection strategies, which bifurcates workload ineffectively and creates different types of tools and incompatible practices.

Why the eDiscovery is exciting? ›

eDiscovery is one of the most intriguing topics of discussion when examining the use of technology by the legal profession. It is clear that the act of finding and collecting potentially relevant evidence has morphed into a massive operation that involves large amounts of money, time, and other resources.

Why is eDiscovery important in litigation? ›

eDiscovery has been a revolution to the legal industry by giving legal professionals the tools they need to analyze cases and discover the truth. With it, they can retrieve information from a wide range of sources including social media accounts, messages, emails, documents, or any other valuable data.

What do you mean by digital forensics? ›

Digital forensics is a branch of forensic science that focuses on identifying, acquiring, processing, analysing, and reporting on data stored electronically. Electronic evidence is a component of almost all criminal activities and digital forensics support is crucial for law enforcement investigations.

What are some of the processes of Edrm? ›

The EDRM model consists of nine stages: information governance, identification, preservation, collection, processing, review, analysis, production, and presentation.

What are the three forms of discovery? ›

That disclosure is accomplished through a methodical process called "discovery." Discovery takes three basic forms: written discovery, document production and depositions.

What does an eDiscovery analyst do? ›

The eDiscovery Analyst:

Identify, process, collect, correlate, search and produce data utilizing eDiscovery software tools. Provides supporting documentation for reports and status updates in support of the eDiscovery program and matter support.

What is eDiscovery document review? ›

What Is eDiscovery Document Review? Document review is the act of identifying responsive documents to produce and privileged documents to withhold from opposing counsel. Review is an iterative, learning process, meaning you will need to repeat and refine your work over and over again.

What is EDRM in cyber security? ›

EDRM effectively protects data from thefts, misuse, or inadvertent disclosure, and it mitigates the regulatory risk of collaboration and information exchange with users, partners, and vendors. EDRM controls how employees and partners use sensitive information.

What does Aceds stand for? ›

Association of Certified E-Discovery Specialists (ACEDS)

What is EDRM workflow? ›

The EDRM (Electronic Discovery Reference Model) is an eDiscovery workflow and framework that the legal and IT fields accept as broad outline for the steps to consider throughout the eDiscovery lifecycle in the United States. The EDRM model has been around since 2005, and has stood the test of time.

What happens if the defendant does not give me responses to my discovery requests? ›

Failure to discover may result in judgement being given against the defaulting party in the main action. Documents, which may harm a litigant's case, must be ascertained as soon as possible to limit any damage that may be caused.

What are the 5 methods of discovery? ›

The Six types of Discovery in Civil Litigation Cases:
  • Oral depositions,
  • Written depositions,
  • Interrogatories,
  • Requests for production or permit inspection,
  • Physical or mental examinations, and.
  • Admissions.
27 Sept 2016

How do you find out if a specific case has been overturned? ›

The only way you can know if your case is still good law is to validate your research. "Validating" your case research means to run your case through a citator service to see if there are subsequent legal authorities that invalidate your case and then reading those cases that negatively impact your case.

How do I get eDiscovery experience? ›

To become an e-discovery attorney, you need formal law education qualifications, including a law degree. You also need to pass the bar exam to gain acceptance into the bar for your state. Most positions require previous professional experience in a law office, either through an internship or employment position.

Why was Kim put in doc review? ›

One person who's had quite enough of Jimmy's easy-going charm is Kim, who continues to toil away in document review as punishment for Jimmy's commercial stunt. Kim is unique in Gilligan's fictional Albuquerque universe simply because she has yet to show her tragic flaw.

What are ESI tools? ›

Emergency Severity Index (ESI): A Triage Tool for Emergency Departments.

What is the difference between eDiscovery and digital forensics? ›

Simply defined, eDiscovery is the process of identifying, preserving, collecting, processing, reviewing, and analyzing electronically stored information (ESI) in litigation. The digital forensics process involves identifying, preserving, collecting, analyzing, and reporting on digital information.

Videos

1. Preparing for the Proposed Amendments to the Federal Rules Of Civil Procedure
(LexisNexis Litigation Solutions)
2. The Burden of e-Discovery Costs and Protecting Due Process Rights - Part 1
(Paralegal Knowledge Institute)
3. KLRC - The New Rules For E Discovery What Do They Impact
(U.S. District Court, District of Kansas)
4. E-discovery - Chapter 1 - Introduction to E-discovery and Digital Evidence
(Arthur Salmon)
5. eDiscovery I: How It Is Changing the Way We Practice Law
(VSB YLC)
6. Civil Rules 2015—Proportional Discovery
(United States Courts)

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