The issue alleged by Plaintiff was that the ESI produced by Defendant was not produced in accordance with FRCP 34(b)(2)(E)(i), that is "documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request." Plaintiff had requested the ESI in native format and questioned some file extensions of emails were not native.
After testimony by IT persons for both sides, on Tuesday morning the argument came down to whether the over 279,000 documents produced were sufficiently searchable. Defendant's IT witnesses had demonstrated on the stand that the documents were searchable. Plaintiff argued, though, that it was prohibitively difficult to find a single specific document using word searches. Defendant stated they had offered to share their search terms but Plaintiff refused.
I came away from the hearing with the impression that lawyers for both sides would benefit by having members of their respective firms join The Sedona Conference® and then become instrumental in the e-discovery process.
In 2009, The Sedona Conference® published The Case for Cooperation.2 By cooperation is meant:
Cooperation in this context is best understood as a two-tiered concept. First, there is a level of cooperation as defined by the Federal Rules, ethical considerations and common law. At this level, cooperation requires honesty and good faith by the opposing parties. Parties must refrain from engaging in abusive discovery practices. The parties need not agree on issues, but must make a good faith effort to resolve their disagreements. If they cannot resolve their differences, they must take defensible positions.
Then, there is the second level. While not required, this enhanced cooperative level offers advantages to the parties. At this level, the parties work together to develop, test and agree upon the nature of the information being sought. They will jointly explore the best method of solving discovery problems, especially those involving electronically stored information (“ESI”).
It seemed to me that many of the questions and concerns brought out in the hearing might have been successfully addressed by the development of a thorough, well-thought out discovery plan. If so, the parties may have been spared the costs of motions, responses, and hearings.
Another thing that came to light, upon questioning by Special Master Hedges, was that lawyers for the parties had not sought a clawback agreement pursuant to Rule 502(b) of the Federal Rules of Evidence.3
Rule 502 was enacted in part because of the sometimes exorbitant number of documents that need to be reviewed for relevance and privilege before producing them to the other side. Overlooking documents not intended for producing is not necessarily inevitable, but it can certainly happen. When it does, a 502(b) agreement comes to the rescue.
As the hearing developed, it occurred to me that in addition to joining The Sedona Conference® and reading their excellent publications, checklists would have been beneficial.
E-Discovery is a project and the tools of project management turns e-discovery into a rational process. Checklists are so important, in fact, that Chapter 8 of Point-To-Point: E-Discovery Jump Start4 is devoted to them.
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1Ron has extensive experience in e-discovery and in the management of complex litigation and has served as a special master, arbitrator and mediator. He also consults on management and discovery of electronically stored information (“ESI”). Ron was a U.S. Magistrate Judge in the U.S. District Court for the District of New Jersey for the Court Mediation program, a member of the Lawyers Advisory Committee, and both a member of, and reporter for, the Civil Justice Reform Act Advisory Committee. From 2001 to 2005, he was a member of the Advisory Group of Magistrate Judges. Ron was an adjunct professor at both Seton Hall University School and Georgetown University Law Center, and is currently an adjunct professor at Rutgers School of Law, Newark. He was also a Fellow at the Center for Information Technology of Princeton University for 2010-2011 and 2011-2012. Ron is a member of the College of the State Bar of Texas. Among other things, he is a member of the American Law Institute, the American Bar Association and the Federal Bar Association. Ron is a member of the Historical Society and the Lawyers Advisory Committee of the United States District Court for the District of New Jersey. He is a member of The Sedona Conference® Advisory Board, The Sedona Conference Working Groups on Protective Orders, Confidentiality, and Public Access and on Electronic Document Retention and Production. Ron is also a member of the advisory board of the Advanced E-Discovery Institute of Georgetown University Law Center. He frequently writes on ESI-related topics. From the biography for Ronald J. Hedges provided on The Sedona Conference® website, available at https://thesedonaconference.org/bio/hedges-ronald (last visited Feb 5,2014).2 The Case for Cooperation, 10 Sedona Conf. J. 339 (2009)., available at https://thesedonaconference.org/publications (last visited Feb 5, 2014).
3Rule 502(b) reads: (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B). Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver, http://www.law.cornell.edu/rules/fre/rule_502 (last visited Feb 5, 2014).
4The book, Point-To-Point, is scheduled for publication in the spring.
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