/ LEGAL FEATURE
/ Rule 26(f) there are a couple of caveats. If ESI or other information is
The “meet and confer” requirement in this rule prescribes how routinely purged based on age, then that should occur pursu-
the ESI discovery process should begin by discussing “any ant to a documented and approved ESI management policy.
issues relating to preserving discoverable information” and And that policy should include a specific “litigation hold”
devising a method that will address “any issues relating to procedure that provides for appropriately tailored suspension
disclosure or discovery of electronically stored information, of the policy when litigation is reasonably foreseeable.
including the form or forms in which it should be produced.”
During the process, there are numerous questions that arise. / Conclusions
What ESI is available? Where is the ESI located? What will be For companies that are not prepared for e-discovery, the
preserved, and how? What are the parties’ plans for discovery? time has arrived. To employ a provocative analogy, it is
In what format will data be provided? typical for a company to budget, plan, and test its disaster
One of the most important steps in preparation is determin- recovery procedures in preparation for the possibility of a
ing who, for each party, is the most knowledgeable about the disaster. But now that both Federal and State Rules require
ESI systems involved. This person may contribute to: e-discovery, a company can be almost certain of receiving
an e-discovery request before it experiences a disaster. To
• The development or provision of a data map of the complicate matters, court decisions like that in the famous
ESI systems Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y.
• The provision of data retention policies 2004) dispute now routinely confer on attorneys the duty to
• The provision of system backup and recovery plans take affirmative steps to monitor compliance and ensure that
• Locations of email all sources of discoverable information are identified and
• Locations of other relevant data searched. Attorneys failing to do so have been sanctioned,
• Plans for preservation sometimes severely.
• Justifying the designation of certain data as not
“reasonably accessible”
Since 70% of digital
/ Rule 34(b) information remainS
This rule permits the requesting party to specify the form
unprinted and inviSible,
or forms in which it wants ESI to be produced. The respond-
ing party must also state the form that it intends to use for the potential for
producing ESI. If the requesting party does not specify a
e-diScovery iS limitleSS;
form, or if the responding party objects to the requested
form, the Court will resolve the dispute. The purpose of this
our work iS cut out!
rule is to prevent efforts to produce ESI in a format that is
difficult to use. For example, producing thousands of e-mails I strongly suggest that companies begin working now to
in non-searchable PDFs is a potential practice that this rule obtain the information outlined in the “Meet and Confer”
addresses. For e-discovery and digital forensics experts, this section above. Studies have shown that properly planning for
may require converting information into different formats for e-discovery, before it occurs, can save companies up to 40% of
clients to review. the costs otherwise incurred. In the current economic climate,
that kind of saving will surely be welcome.
/ Rule 37(f) Requirements at Federal and State levels for operations
This “Safe Harbor” rule provides that “absent exceptional such as data preservation, devising electronic discovery plans,
circumstances” a court may not impose sanctions on a party demonstrating “undue burden”, providing evidence disputing
“for failing to provide ESI lost as a result of routine, good whether or not electronic information was deleted as a “good
faith operation of an electronic information system”. The rule faith routine”, and providing specific forms of production,
recognises the reality that some computer systems routinely further demonstrate the need for digital forensics experts. /
alter and delete information without specific direction from
an operator, and that companies may have reasonable and
appropriate policies that automate this process.
/ Author Bio
However, a party must not exploit the routine operation Bill Dean is the Director of Computer
of an information system to thwart discovery by allowing a
Forensics for Sword & Shield Enterprise
Security. He has more than 13 years
system to continue to destroy information that it is required to
of experience in the technical field, in
preserve. A “good faith” effort would require a party that is in,
roles such as programmer, systems
or reasonably anticipates, litigation to take steps to prevent support, enterprise systems design
further loss of information. This has given rise to what is
and engineering, virtualisation, digital
forensics, and information security. Bill is a frequent speaker
called the “litigation hold.”
and published author on the topics of digital forensics and
While parties were pleased that the “Safe Harbor” relieves
electronic discovery for numerous legal associations.
them from the obligation to retain information perpetually,
35
DF1_34-35_2nd Legal Feature.indd 35 30/10/09 4:36:42 pm
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