New Rule 16 « e-Discovery Team

New Rule 16

Rule 16: Pretrial Conferences; Scheduling; Management.

(b) Scheduling and Planning. Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;
(2) to file motions; and
(3) to complete discovery.

The scheduling order may also include:

(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;
(5) provisions for disclosure or discovery of electronically stored information;
(6) any agreements the parties reach for asserting claims of privilege or protection as trial-preparation material after production;
(7) the date or dates for conferences before trial, a final pretrial conference, and trial; and
(8) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as possible but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

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Rules Committee Commentary to Rule 16

The amendment to Rule 16(b) is designed to
alert the court to the possible need to address the
handling of discovery of electronically stored
information early in the litigation if such discovery is
expected to occur. Rule 26(f) is amended to direct the
parties to discuss discovery of electronically stored
information if such discovery is contemplated in the
action. Form 35 is amended to call for a report to the
court about the results of this discussion. In many
instances, the court’s involvement early in the
litigation will help avoid difficulties that might
otherwise arise.

Rule 16(b) is also amended to include among the
topics that may be addressed in the scheduling order
any agreements that the parties reach to facilitate
discovery by minimizing the risk of waiver of privilege
or work-product protection. Rule 26(f) is amended to
add to the discovery plan the parties’ proposal for the
court to enter a case-management or other order
adopting such an agreement. The parties may agree to
various arrangements. For example, they may agree to
initial provision of requested materials without waiver
of privilege or protection to enable the party seeking
production to designate the materials desired or
protection for actual production, with the privilege
review of only those materials to follow. Alternatively,
they may agree that if privileged or protected
information is inadvertently produced, the producing
party may by timely notice assert the privilege or
protection and obtain return of the materials without
waiver. Other arrangements are possible. In most
circumstances, a party who receives information under
such an arrangement cannot assert that production of
the information waived a claim of privilege or of
protection as trial-preparation material.

An order that includes the parties’ agreement
may be helpful in avoiding delay and excessive cost in
discovery. See Manual for Complex Litigation (4th)
§ 11.446. Rule 16(b)(6) recognizes the propriety of
including such agreements in the court’s order. The
rule does not provide the court with authority to enter
such a case-management or other order without party
agreement, or limit the court’s authority to act on
motion.

TEAM MISSION STATEMENT

1. Assist companies routinely involved in litigation to establish an e-discovery readiness team. The recommended team includes designated in-house legal counsel, IT and business management, and, where needed, the best e-discovery vendors and experts in the field. Our attorneys, technicians and other specialists help form, train and coach the team, but the client remains team owner and captain.

2. Meet with IT personnel and fully understand their data architecture and record retention practices, and then advocate and explain their position in the litigation process, appearing in court as co-counsel of record when necessary.

3. Guide in the creation and implementation of new systems to maintain records, preserve evidence, and timely respond to electronic discovery.

4. Provide high quality and consistent legal representation on e-discovery issues around the country, and work closely with local counsel, clients, and the courts to minimize costs and unnecessary disputes.

Sedona Principles, 2nd Ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.

3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.

4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.

12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.

13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.

14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.

Reprinted courtesy of The Sedona Conference®.

Go to www.thesedonaconference.org to download a free copy of the complete document for your personal use only.

MUCH DATA DO YOU HAVE?

CD = 650 MB = 50,000 pages. DVD = 4.7 GB = 350,000 pages. DLT Tape = 40/80 GB = 3 to 6 Million pages.
Super DLT Tape = 60/120 GB = 4 to 9 Million pages.

*************************** Page Estimates:
1 MB is about 75 pages;
1 GB is about 75,000 pages (pick-up truck full of documents).

Aver. pgs. per email: 1.5 (100,099 pages per GB).
Aver. pgs. per word document: 8 (64,782 pages per GB).
Aver. pgs. per spreadsheet: 50 (165,791 pages per GB).
Aver. pgs. per power point: 14 (17,552 pages per GB).

*************************** For the average .PST or .NSF Email File:
100 MB .PST file is 900 emails and 300 attachments.
400 MB .PST file is 3,500 emails and 1,200 attachments.
600 MB .PST file is 5,500 emails and 1,600 attachments.
A 1.00 GB .NSF file is 9,000 emails and 3,000 attachments.
A 1.5 GB .NSF file is 13,500 emails and 4,500 attachments.

*************************** Note: Many variables will affect ALL of the actual numbers above, including especially large image and video files, and recursive files.

*************************** Bits and Bytes Sizes:
•8 bits are equal to 1 byte (one or two words),
•1,024 bytes are equal to 1 kilobyte (KB).
•1,024 kilobytes (KB) are equal to 1 megabyte (MB or Meg).
•1,024 megabytes are equal to 1 gigabyte (GB or Gig) (truck full of paper).
•1,024 gigabytes are equal to 1 terabyte (TB) (50,000 trees of paper).
•1,024 terabytes are equal to 1 petabyte (PB) (250 Billion Pgs. of Text).
•1,024 petabytes are equal to 1 exabytes (EB) (1 000 000 000 000 000 000 bytes).