Section VIII
e-Discovery
VIII.A | GENERAL
VIII.B | PRESERVATION
VIII.C | PROPORTIONALITY
2. Discovery should generally be obtained from the most convenient, least burdensome, and least expensive sources.
3. Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
4. Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of production.
5. Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
6. Technologies to reduce cost and burden should be considered in the proportionality analysis.1
VIII.D | ESI CONFERENCE
2. Reasonable steps to preserve ESI.
3. The relevant time period.
4. The manner and forms of preservation and production including the production of live database-based materials. Possible forms for the production of ESI include native, TIFF and PDF. Absent agreement or a Court order, Rule 34(b) provides that ESI should be produced in either the form in which it is “ordinarily maintained” or in a “reasonably useable” form. When deciding what format(s) to use counsel, with the assistance of their information technology experts, are encouraged to discuss:
b. The need for metadata.
c. Accessibility of ESI in the form requested.
d. The requesting party’s ability to manage and use ESI in the form requested.
e. Risks associated with the inadvertent production of privileged or confidential information associated with the different forms of production.
f. The difficulty of redacting ESI in the form requested.
g. The extent to which alternative forms of production will satisfy a party’s needs.
6. Sources of ESI that are not reasonably accessible.
7. The relative costs and other burdens associated with production, review and processing ESI.
8. Allocation of the costs of production.
9. The use of search terms, sampling, de-duplication, “quick-peeks,” technology assisted review methods including, for example, predictive coding and other strategies to reduce the volume of ESI that must be preserved and produced.
10. How to deal with issues of confidentiality and privilege including the use of “claw-back agreements” or the appointment of a special master to resolve disagreements.
11. Tiered discovery in which ESI is produced sequentially in tranches.
12. Disposal of ESI at the appropriate time.
VIII.E | PROCEDURE
Rule 34(a) establishes that unless requested in another form, the producing party must produce electronically stored information in a form or forms in which it is usually maintained or in a form or forms that are reasonably usable. The Rule permits testing and sampling as well as the inspection and copying of ESI.
Inspection of an opponent’s computer system is the exception, not the rule and the creation of forensic image backups of computers should only be sought in exceptional circumstances which warrant the burden and cost. A request to image an opponent’s computer should include a proposal for the protection of privacy rights, protection of privileged information, and the need to separate out and ignore non-relevant information.
As an alternative to Bates numbers, consider using Hash tags or Hash values to identify ESI.
Ordinarily, information should only be produced once, i.e., electronically or by paper copies, not both.
VIII.F | RESOLVING DISCOVERY DISPUTES
VIII.G | DISCOVERY FROM NON-PARTIES
VIII.H | METADATA
2. The potential relevance of the metadata.
3. The importance of reasonably accessible metadata to facilitate the parties’ review, production and use of ESI.
4. The locations of metadata that will be sought in discovery.
You might need to reference it during your pursuit of justice.
For instance, you might need to use this handbook in order to protect yourself from organizations/judges/lawyers who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
