E-Discovery and the Federal Rules of Civil Procedures

E-Discovery and the Federal Rules of Civil Procedures

BRADLEY J SCHAUFENBUEL
Copyright Date: 2007
Published by: IT Governance Publishing
Pages: 63
https://www.jstor.org/stable/j.ctt5hh7gf
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  • Book Info
    E-Discovery and the Federal Rules of Civil Procedures
    Book Description:

    The FRCP have been amended and updated to take account of electronic information. Attorneys can no longer just throw individual E-Discovery requests ‘over the wall’ to the IT department. Indeed, the pitfalls associated with E-Discovery represent one of the greatest risks that organisations face in litigation today. If a defendant fails to produce e-mail evidence when required, the courts will assume that this evidence has been wilfully destroyed or withheld. Records management professionals, IT personnel, compliance experts and general counsel all need to work together to develop a comprehensive framework for handling E-Discovery requirements. This pocket guide provides expert advice on how to build such a framework within your organisation in order to assess and to manage the risks associated with E-Discovery.

    eISBN: 978-1-905356-34-8
    Subjects: Technology

Table of Contents

  1. Front Matter
    (pp. 2-4)
  2. ABOUT THE AUTHOR
    (pp. 5-5)
  3. ACKNOWLEDGEMENTS
    (pp. 6-6)
  4. Table of Contents
    (pp. 7-8)
  5. PROLOGUE
    (pp. 9-9)

    Electronic discovery (E-Discovery for short) refers to the legal discovery of electronic documents and data. According to a recent survey of corporate attorneys by Pike and Fischer, only 7% of respondents feel that their companies are ready to meet the E-Discovery requirements of the recently updated Federal Rules of Civil Procedure (FRCP). Given that ESG Research estimates that 91% of organizations with a workforce over 20,000 employees have been through an electronic discovery event in the past twelve months, this statistic is truly astounding.¹ The pitfalls involved with E-Discovery represent one of the greatest risks that organizations face in litigation...

  6. CHAPTER 1: WHAT ARE THE FEDERAL RULES OF CIVIL PROCEDURE?
    (pp. 10-13)

    The Federal Rules of Civil Procedure (FRCP) govern the activities of all US federal civil courts. Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a ‘civil action’, as opposed to a criminal action). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or statements of case, motions or applications, and orders, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, the various...

  7. CHAPTER 2: AMENDMENTS TO THE FRCP EXPLAINED
    (pp. 14-16)

    There are five key themes in the changes to the FRCP.⁵ First, the amendments define and treat electronically sensitive information differently from paper documents. Secondly, the amendments require the parties to a lawsuit to discuss issues that are unique to electronic discovery in their initial conference. Thirdly, the amendments address inadvertent production of privileged or protected materials (records that are protected from disclosure to the other party based on the ‘attorney-client’ and ‘work product’ privileges). Fourthly, the amendments encourage a two-tier approach to discovery which involves dealing with reasonably accessible information first and inaccessible data later. Finally, the amendments provide...

  8. CHAPTER 3: ORGANIZATIONAL IMPACTS OF THE AMENDMENTS TO THE FRCP
    (pp. 17-18)

    The most significant organizational impacts of the FRCP amendments include:

    E-Discovery timeframes: Organizations no longer have the luxury of virtually limitless amounts of time in which to respond to E-Discovery requests. The ‘meet and confer’ session must take place at least 21 days before the court holds a scheduling conference or enters a scheduling order, which resolves various issues related to discovery and sets a schedule for completion of discovery. Under Civil Rule 16(b), the scheduling conference must occur, or the judge must enter a scheduling order, within 120 days after the complaint has been served on the defendant. That...

  9. CHAPTER 4: CONSEQUENCES OF NOT ADDRESSING THE E-DISCOVERY CHALLENGE
    (pp. 19-20)

    If an organization forgoes E-Discovery preparation efforts prior to the commencement of actual litigation, the consequences could be severe. Examples include:

    Adverse inference jury instruction: If electronic evidence is not produced in a timely manner, a judge may instruct the jury to assume that the missing evidence would have been ‘adverse’ to the party that failed to produce it. This will greatly diminish this party’s chances of legal success. Two highly visible examples includeZubulake v UBS WarburgandColeman v Morgan Stanley. The defendant financial institutions in both lawsuits lost their cases due to their failure to adequately produce...

  10. CHAPTER 5: IDENTIFYING AND ASSESSING E-DISCOVERY RISKS
    (pp. 21-22)

    The first step to assessing any compliance related risk is to thoroughly understand the requirements that have to be met. In addition to reading this book, studying the amendments themselves (and especially the committee notes that accompany them) is highly recommended. They can be downloaded from the web site maintained by the Administrative Office of the US Courts. The current URL is:www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscovery_ w_ Notes.pdf.

    An organized approach is needed to identify and assess an organization’s E-Discovery risks. The checklist in Appendix 1 (seepage 56) is designed to assist IT risk management professionals with identifying gaps between best practice...

  11. CHAPTER 6: ADDRESSING E-DISCOVERY RELATED RISKS
    (pp. 23-44)

    Each electronic discovery event follows a basic lifecycle. This lifecycle starts with (1) preparation, followed by the issuance of (2) a litigation hold order, which (if successful) ensures (3) preservation, which is followed by (4) searching /collection, and then (5) capture /extraction, which feeds into (6) production, followed by (7) closing processes. The lessons learned from the closing processes then feed into preparation for the next electronic discovery event, making this pattern a closed loop. Each step in the E-Discovery lifecycle will be discussed in turn. But before the facilitation of individual E-Discovery events can be examined, the initial establishment...

  12. CHAPTER 7: TECHNOLOGICAL IMPACTS
    (pp. 45-48)

    Technology has both the potential to hinder and to improve E-Discovery efforts. The following sections explore discovery-related issues with existing technologies, the characteristics of commercial products in the E-Discovery space, and technologies that build a solid foundation for effective E-Discovery processes going forward.

    E-mail is the number one type of record requested to support legal or regulatory inquiries.¹⁹ Based on its volume, lack of structure, and distributed nature, it is also one of the most challenging record types to deal with from a discovery perspective. End-users often have the ability to manipulate their own mailboxes, which can make the enforcement...

  13. CHAPTER 8: OUTSOURCING
    (pp. 49-50)

    Sometimes it may not make sense to handle E-Discovery requests in-house, especially if the required expertise is lacking internally, E-Discovery processes are largely undefined, there aren’t enough resources to spare, or significant portions of the IT infrastructure have been outsourced to a third party. Quite simply, a company should outsource its E-Discovery tasks if it is not ready to address them itself internally. Commonly outsourced tasks in the E-Discovery context include discovery planning and case management, litigation support (searching / collection), and forensic work (extraction / production). If enabling technology is involved, it is not always necessary to deploy that...

  14. EPILOGUE
    (pp. 51-51)

    The recent amendments to the Federal Rules of Civil Procedure will have a huge impact on the E-Discovery practices of organizations of all sizes and types. These changes may pose significant risks to the IT departments of organizations who are ill-prepared to support litigation involving electronic evidence. However, if properly identified, assessed, and addressed, these risks can be mitigated to an acceptable level....

  15. BIBLIOGRAPHY
    (pp. 52-55)
  16. APPENDIX 1: E-DISCOVERY READINESS ASSESSMENT CHECKLIST
    (pp. 56-57)
  17. APPENDIX 2: EVALUATING E-DISCOVERY SOLUTIONS – EVALUATION CHECKLIST
    (pp. 58-60)
  18. ITG RESOURCES
    (pp. 61-63)