Identifying inaccessible sources of ESI just got a little easier

Fed.R.Civ.P. 26(b)(2)(B) explains that a party need not produce electronically stored information (“ESI”) from sources that are not reasonably accessible because of undue burden or cost. Parties are expected to produce relevant, non-privileged information from sources that are “reasonably accessible” subject to Rule 26(b)(2)(C)’s limitations that apply to all discovery under the federal rules. This “two-tier” approach to ediscovery is easy to recite but can be very difficult to apply in practice. At what point does a source of ESI cross the threshold from reasonable accessibility to inaccessibility under the Rule? Are there sources of information that parties can readily agree are not reasonably accessible? Alas, neither Rule 26(b)(2)(B) nor its accompanying committee note provide any helpful insight. Indeed, the 2006 Advisory Committee Note states “[i]t is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information.”

The Report of the Judicial Conference Committee on Rules of Practice and Procedure (“Standing Committee Report”) which predated the enactment of the 2006 ediscovery amendments to the federal rules provided some insight. The Standing Committee Report did note that the features of an information system that make it burdensome or costly to access ESI can vary from system to system and will change over time. However, it provided several examples of “current technology” that do not generally fit under the rubric of reasonable accessibility. Those examples included “deleted information, information kept on some backup-tape systems for disaster recovery purposes, and legacy data remaining from systems no longer in use.” See THE NEW E-DISCOVERY RULES, Dahlstrom Legal Publishing, Inc. (2006) at p. 15. Unfortunately, that guidance was not carried over into the 2006 Advisory Committee Note to Rule 26(b)(2)(B).

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Seventh Circuit’s Electronic Discovery Pilot Program

Recently, the Seventh Circuit announced its Electronic Discovery Pilot Program. The program was developed in response to continuing comments by the business community and practicing attorneys about the need to reform the civil pretrial discovery process. It is an attempt to reduce the cost and burden of ediscovery in litigation. What makes the Seventh Circuit’s pilot program unique is that its results will be reviewed and analyzed during the program’s phases.

A series of Principles Relating to the Discovery of Electronically Stored Information (“ESI”) were developed and codified in a standing order. These principles are intended to serve as supplemental procedural ediscovery guidelines for the parties in selected cases. Individual district court, magistrate, and bankruptcy judges in the Seventh Circuit have agreed to adopt the principles and implement them in selected cases during Phase I of the program, which runs through May 1, 2010.

Kenneth J. Winters, the Managing Director of the Sedona Conference®, and former Colorado Supreme Court Judge Rebecca Kourlis, the Executive Director of the Institute for Advancement of the American Legal System (“IAALS”) at the University of Denver, assisted in the development and review of these principles.

IAALS is developing questionnaires to assess the efficacy of the principles. The questionnaires will be completed by the judges and lawyers participating in Phase I of the program. The results of the IAALS’ questionnaires will be presented to the Seventh Circuit at its annual meeting in May, 2010. At that time, the program’s ediscovery principles will be reviewed and refined as needed. Phase II of the program is scheduled to proceed from June, 2010 through May, 2011. It is contemplated that in May, 2011, Phase II findings will be presented and the Seventh Circuit’s final ediscovery principles announced.

Among other things, the principles require in the event of a dispute during the meet and confer process, the appointment of an ediscovery liaison who should be prepared to participate in ediscovery dispute resolution. These principles also recognize that that Rule 26(b)(2)(C)’s proportionality principles should be applied when formulating a discovery plan; provide that sanctions can be imposed for the failure to cooperate and participate in good faith in the meet and confer process; identify categories of ESI, which are generally not discoverable in most cases; and provides that if a party intends to request the preservation or production of these categories of ESI, that such a request be discussed at the parties’ initial meet and confer session or as soon thereafter as practicable.

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OCR cost shifting rejected

Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex., Feb. 19, 2009)

Given today’s economic climate, shifting the costs of electronic discovery is a strategy that should be considered whenever possible. In Proctor & Gamble, the district court rejected the defendant’s attempt to shift the costs of applying optical character recognition (“OCR”) to documents it had agreed to produce in a tagged image file format (“TIFF”). The application of OCR to the TIFF images would make the imaged documents electronically searchable.

While the district court recognized that the application of OCR to the imaged documents was “not absolutely necessary to [the] litigation,” it rejected the defendant’s attempt to shift the cost of OCR processing because the defendant failed to provide any support for its cost estimate, and no valid legal argument to support its claim that the cost burden should be shifted. The defendant advised the court that it did not intend to use the OCR process, and argued that it should not be forced to bear the added OCR expense solely for the plaintiff’s convenience. That argument failed to carry the day in Proctor & Gamble.

Any cost-shifting strategy requires careful advanced planning, and a thorough knowledge of the client’s information systems. While the district court’s ruling in Proctor & Gamble appears relatively straightforward, there are a number of issues that are relevant to any cost-shifting strategy that must be carefully analyzed before a party should even begin to evaluate cost-shifting factors outlined in Zubulake, which was the focus of the district court’s opinion in Proctor & Gamble.

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Email Routes and Locations

When we provide training on ediscovery, one of the issues we address is the various places where emails can be found, and the routes which they can take to get to those repositories. Because a picture is worth a thousand words, we worked with the head of our firm’s IT department to develop a PowerPoint slide that visually depicts this information which we now use in our training sessions.

We have attached our slide below, and if you click on the image, it will enlarge for your ease of reference. Admittedly, not every email system will have all of the various features shown on our slide, and there can be other repositories in some systems that we did not include, but our slide does provide a fairly comprehensive overview of the various “nooks and crannies” where emails can be found.

While it is not as complex as a map of New Orleans, our slide shows that the world wide web is not exactly an information superhighway. Rather, it’s more like a medieval European city where you can easily get lost if you can’t read the signs or know where you are going. Hopefully our slide will prevent you from getting lost, and will help you find what you are looking for.

[Click image to enlarge]

If you want to use this slide for any reason, just drop Steve or Evan a note.