37 « e-Discovery Team

37

New Rule 37: Failure to Make Disclosures or Cooperate in Discovery; Sanctions.

(f)* Electronically stored information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

*Note, after recent rules renumbering 37(f) has now become 37(e)

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Rules Committee Commentary to Rule 37

Subdivision (f). Subdivision (f) is new. It
focuses on a distinctive feature of computer
operations, the routine alteration and deletion of
information that attends ordinary use. Many steps
essential to computer operation may alter or destroy
information, for reasons that have nothing to do with
how that information might relate to litigation. As a
result, the ordinary operation of computer systems
creates a risk that a party may lose potentially
discoverable information without culpable conduct on
its part. Under Rule 37(f), absent exceptional
circumstances, sanctions cannot be imposed for loss
of electronically stored information resulting from the
routine, good-faith operation of an electronic
information system.

Rule 37(f) applies only to information lost due to
the “routine operation of an electronic information
system” — the ways in which such systems are
generally designed, programmed, and implemented to
meet the party’s technical and business needs. The
“routine operation” of computer systems includes the
alteration and overwriting of information, often without
the operator’s specific direction or awareness, a
feature with no direct counterpart in hard-copy
documents. Such features are essential to the
operation of electronic information systems.

Rule 37(f) applies to information lost due to the
routine operation of an information system only if the
operation was in good faith. Good faith in the routine
operation of an information system may involve a party’s
intervention to modify or suspend certain
features of that routine operation to prevent the loss of
information, if that information is subject to a
preservation obligation. A preservation obligation may
arise from many sources, including common law,
statutes, regulations, or a court order in the case. The
good faith requirement of Rule 37(f) means that a party
is not permitted to exploit the routine operation of an
information system to thwart discovery obligations by
allowing that operation to continue in order to destroy
specific stored information that it is required to
preserve. When a party is under a duty to preserve
information because of pending or reasonably
anticipated litigation, intervention in the routine
operation of an information system is one aspect of
what is often called a “litigation hold.” Among the
factors that bear on a party’s good faith in the routine
operation of an information system are the steps the
party took to comply with a court order in the case or
party agreement requiring preservation of specific
electronically stored information.

Whether good faith would call for steps to
prevent the loss of information on sources that the
party believes are not reasonably accessible under
Rule 26(b)(2) depends on the circumstances of each
case. One factor is whether the party reasonably
believes that the information on such sources is likely
to be discoverable and not available from reasonably
accessible sources.

The protection provided by Rule 37(f) applies
only to sanctions “under these rules.” It does not affect
other sources of authority to impose sanctions
or rules of professional responsibility.

This rule restricts the imposition of “sanctions.”
It does not prevent a court from making the kinds of
adjustments frequently used in managing discovery if
a party is unable to provide relevant responsive
information. For example, a court could order the
responding party to produce an additional witness for
deposition, respond to additional interrogatories, or
make similar attempts to provide substitutes or
alternatives for some or all of the lost information.

One Response to “37”

New Case Denies Both Production Under Rule 26(b)(2)(B) and Sanctions for Spoliation Under Unspoken Rule 37 « e-Discovery Team Says:
March 31, 2008 at 9:18 am
[...] 37 [...]

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).