The amended version of FRCP 37(e) limits sanctions to situations where ESI that should have been preserved was lost “because a party failed to take reasonable steps to preserve it.” Thus, the first question raised by the amended version of FRCP 37(e) is what qualifies as “reasonable steps to preserve” ESI. Unfortunately, the rule does not elaborate, but thankfully, the Advisory Committee Notes and subsequent cases do provide some guidance.
On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the eDiscovery era official. Among the rules revised was Federal Rule of Civil Procedure 37, which governs discovery failures like spoliation and the associated sanctions. Among the changes was made was the replacement of the 2006 version of FRCP 37(f) with the new 2015 version of FRCP 37(e).
Our monthly legal eDiscovery news round-up features new roles for industry leaders, new data privacy developments, and reporting on the coming battles over deepfakes, as well as recent cases and new XDD educational content.
As you approach the end of your production efforts, there are two additional steps that should be taken prior to delivery of the prepared production set(s). First, if any materials have been withheld due to privilege or work product protection, those materials will need to be documented in a privilege log. Second, for your own records, you should prepare a production history log documenting your production(s).
Now that we have reviewed the range of production formats available, the additional decisions that need to be made, and the rules and cases about who gets to make all those decisions, it’s time to review the actual preparation of the production in the chosen format. This process is typically a collaboration between members of the case team and the technical professionals responsible for administrating your chosen processing and review platforms.
Now that we have reviewed how the production format selection process is supposed to work under the FRCP, let’s take a look at some recent cases to see the disputes that arise and how courts are applying those rules in practice, including: a joint failure, a protocol deviation, a waived objection, an award of expenses, a failure to request metadata, and more.
Now that we’ve reviewed the available production formats and related options, it’s time to discuss which party gets to decide on the formats and options to be used in a typical case. Pursuant to the Federal Rules of Civil Procedure, both parties have opportunities for a say: first, in negotiations; then, through requests and objections; and finally, through motions to compel and protect.
Beyond just deciding on your optimal combination of paper, near-paper, native, and near-native production options, there are a range of more-detailed options for you to consider. Among the most important are options related to load files, metadata, redactions, numbering and endorsements, and paper integration.
We turn our attention now to the final pre-trial phase of an electronic discovery effort: production. It is important for practitioners to understand the range of possibilities and their differing requirements, limitations, and implications, because the way materials are produced affects how much time and effort they take to prepare and how easily they can be searched, reviewed, and used later in depositions and at trial.
Our monthly legal eDiscovery news round-up features updates to state discovery rules, new privacy shield enforcement actions, and a leadership transition at ACEDS, as well as recent cases and new XDD educational content.
We have now reviewed how important identification and preservation are, how broad their scope might be, how to go about brainstorming and investigating to identify what needs to be preserved, and how to issue and monitor compliance with legal holds. What remains is to think about common preservation pitfalls, about situations in which immediate collection is called for, and about our key takeaways from this series.
Once you’ve completed your imagination and investigation activities, once you have identified the potentially-relevant materials within your organization, you are ready to take steps to actually preserve those materials. The first and most important of those steps is the issuance of a legal hold instructing the custodians of potentially-relevant materials regarding the need to preserve them.