Very recently the second edition of the eDiscovery pocket guide for federal judges was released by the Federal Judicial Center. The new edition is key to understanding how judges view eDiscovery requests and how attorneys can avoid costly sanctions and unnecessary and damaging production. The Guide is comprehensive and expands on many of the fundamental issues surrounding electronic discovery that have further developed since the first edition.

e-Lessons Learned will be posting a three-part series summarizing the Guide to help highlight the key issues that judges consider when dealing with electronic discovery. Part One will focus on Rule 16 conferences and the scope of electronic discovery under Rule 26.

Part Two will focus on cost-shifting, subpoenas and implicated third parties, and form of production (stay tuned)

Finally, Part Three will focus on privilege and waiver, preservation, spoliation, and sanctions (stay tuned)

Since publication of the first edition of the Pocket Guide in 2007, there has been an explosion of case law surrounding electronically stored information (ESI) and related discovery issues. Generally, the Guide emphasizes that electronic information now pervades all avenues of peoples’ public and private lives and therefore increases the complexities and costs of ESI discovery. Because there is so much ESI out in the world that can be discovered for a case, the Guide helps explain how judges should use

their discretion to make sure that discovery isn’t prolonged for unnecessary and expensive information.

The Guide points out that in 2012 “the average employee sends or receives more than 100 electronic messages per working day, which translates into more than 2,400,000 messages a year for an organization of 100 employees.” These statistics are double those from the 2007 version of the Guide!

There are a number of important ways that ESI differs from paper information:

• Volume
• Variety of Sources
• Dynamic quality and difficulty of preservation
• Hidden information: metadata and embedded data
• Varieties of forms for production
• Dependence on the system that created it
• Deleting doesn’t necessarily delete it

Because ESI is becoming more and more pervasive in nearly all civil cases, the Guide emphasizes that judges are to encourage parties to cooperate with one another as early as possible in the litigation process. “The judge needs to work with the lawyers to ensure that planned discovery is reasonable and proportional to the needs of the case, and may need to intervene before misunderstandings lead to disputes and create significant cost and delay.”

Rules 26 and 16

To help judges carry out the responsibility of cooperation and reasonable ESI discovery requests, the guide points out the importance of Rule 26(f) conferences as an ongoing process, not simply a one time procedural requirement. The Guide also notes a list of topics that a judge should communicate to attorneys in order for all to be prepared for Rule 26(f) conferences:

• Whether ESI is a discovery issue
• Disclosures required by FRCP 26(a)(1)
• Categories of information each party has in electronic form and how it would be found
• Steps each party plans to take to preserve pertinent ESI
• Who has access to the relevant ESI and where that information is stored
• Anticipated schedule for production
• Whether relevant information has been deleted and, if so, whether one of the parties believes it will need to be reproduced and who will bear the cost of doing so
• Whether relevant information is in the possession of nonparties from whom discovery under Rule 45 will be required

In addition to the Rule 26(f) conferences, the Rule 16 conference allows judges to identify any issues with discovery and ESI between the parties and to emphasize and iron out the understandings reached in the Rule 26(f) conference. The Guide emphasizes that Rule 16 conferences are best done in a “live” format, either in person, with the attorneys present in chambers, or at least with a video or telephone conference. Attorneys should be prepared for the court to require them to come to the Rule 16 conference prepared with Rule 26(f) reports and a proposed scheduling order.

Additionally, attorneys should be aware that Rule 26(a)(1) requires certain ESI disclosures:

• Identities of individuals likely to have discoverable information
• “A copy of, or a description by category and location of, all documents, electronically stored information, and tangible things” that the disclosing party may use to support its claims or defenses, unless they are to be used solely for impeachment.
• Initial disclosures must be made “at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order.”

The Guide emphasizes that, “at a minimum, a party’s initial disclosure should identify the nature of its computer systems, including its backup system, network system, and e-mail system and the software applications used by them.”

Central Issue for ESI Discovery: Scope

“Rule 26(b)(2)(C) requires that a judge limit discovery to what is proportional to the needs of the case.” If certain ESI is hard to access but a party thinks it is vital to the case, a judge may require the party to sample some of the information to make sure that the benefits of procuring all of this information is worth the high cost burden.

If ESI is “not reasonably accessible,” then it is not subject to discovery under Rule 26(b)(2)(B) as long as the party can prove the “undue burden and costs of accessing it.” To determine if it is not reasonably accessible, a judge can require an affidavit from someone with knowledge of the information technology systems along with anticipated costs/burdens. This should not be a vague description of why it is not reasonably accessible. Some courts have even created some categories of information which is generally not reasonably accessible, such as:

• Deleted, slack, fragmented, or unallocated data on hard drives
• RAM access memory
• Temporary internet files, history, cache, cookies, etc.
• Data in metadata files that are frequently updated automatically

The Advisory Committee note to Rule 26(b)(2)(B) has suggested that the judge consider the following factors to determine if good cause exists to allow discovery of “not reasonably accessible” ESI:

• Specificity of the discovery request;
• Quantity of information available from other and more easily accessed sources;
• Failure to produce relevant information that seems likely to have existed by is no longer available on more easily accessed sources;
• Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
• Predictions as to the importance and usefulness of the further information;
• Importance of the issues at stake in the litigation; and
• Parties’ resources

As the Guide emphasizes over and over again, due to the colossal volume that can be associated with ESI, judges are encouraged to make the parties work together as early as possible and constantly be in contact with one another and the court through various conferences to ensure that discovery is reasonable and proportional to each case.

Stay tuned for our summary of the rest of the Guide in Parts Two and Three!

Catherine Kiernan graduated magna cum laude from Rutgers University, New Brunswick in 2010 with a B.A. in political science. She will receive her J.D. from Rutgers School of Law – Camden in 2014. This year she will participate in the competitive Hunter Moot Court. This past summer she interned with a magistrate judge for the U.S. District Court, District of New Jersey where she contributed to a bench trial opinion, among other notable experiences.