Lori A. Tetreault, Esq. May 17, 2011. We’re Gonna talk About: Pre-trial Discovery The new...
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Transcript of Lori A. Tetreault, Esq. May 17, 2011. We’re Gonna talk About: Pre-trial Discovery The new...
Litigation Preparation:What Records Managers Need to Know
Lori A. Tetreault, Esq.
May 17, 2011
We’re Gonna talk About:
Pre-trial Discovery The new Federal Rules of Civil Procedure “Electronically Stored Information” (ESI) The Infamous “Litigation Hold” and your
Retention Policies and Architecture Subpoenas to Non-Parties Certifying or Testifying at Trial
PRE-TRIAL DISCOVERY
What is “Discovery”?
Pre-trial devices used by a party to obtain facts and information about the case from the other
A party can get most anything that is reasonably calculated to lead to the discovery of admissible evidence.
It’s NOT all Rule 26:
State Courts Administrative Agencies
Regulators
All allow discovery or request documents, and this has included electronic records for as long as
electronic records have existed
Federal Rules of Civil Procedure:Kinds of Discovery
Depositions upon oral or written questions;
Written interrogatories;
Requests for Admissions
Permission to enter upon land or other property;
Physical or mental examinations
Requests for the
Production of
Documents!
The 1ST Thing Records Managers Need to Know:
#1 You and your company’s IT
Department are instrumental in assisting counsel in document
production
Federal Rules Governing Document Discovery:
Rule 26, F.R.C.P. General Provisions Governing Discovery
Rule 34, F.R.C.P. Producing Documents, Electronically Stored Information, . . .
Rule 37, F.R.C.P. Failure to Make Disclosure or to Cooperate in Discovery; Sanctions
Rule 45, F.R.C.P. Subpoena
Rule 26(a): Duty to Disclose; General Provisions Governing
Discovery
Initial Disclosure: a party must, without awaiting a discovery request, provide the other party with a copy – or a description by category and location – of all documents and electronically stored information (ESI), that it has in its possession or control and may use to support its claims or defenses.
Rule 26(e): Supplementing Disclosures and Responses
Parties MUST supplement their prior discovery disclosures in a timely manner whenever the party learns that their response was incomplete or incorrect, or upon order of the court
Rule 26(g): Signing Responses
Every discovery response MUST be signed by at least one attorney of record
Signature certifies that the discovery response - to the best of that person’s knowledge, information and belief formed after reasonable inquiry - is complete and correct as of the time it is submitted.
Attorneys can get in BIG trouble (disbarred) for misrepresenting to a court!
The 2nd Thing Records Managers Need to Know:
#2 Keep communications open
with your counsel and IT department – your counsel will probably insist on it!
ELECTRONICALLY STORED
INFORMATION(ESI)
So what is ESI?
3 General Categories:
- Data Files- Background Information (e.g.,
metadata)- E-mail
1. Data Files
Active data (Readily accessible) Archival data (Stored remotely) Back-up data (Tapes, discs, zip drives, etc.) Legacy data (What’s left after equipment has
been removed from active use or data has been migrated)
Residual data (What’s left after files have been “deleted”)
*Not all data is recoverable: wiped files, IMs, overwritten files, encryptions, segments of files and files on which file shredding applications have been run
2. Background Information
Metadata Audit Trails Access Control Lists Non-printing Information
This information can be VERY important to party-litigants!
3. E-Mail
Need I say more?
The 3rd Thing Records Managers Need to Know:
#3 How to work with your
IT department
(Let me know how that works for you!)
Rule 26(b): Discovery Scope and Limits
(1) Parties can obtain discovery on any non-privileged matter that is relevant to any party’s claim or defense;
(2) However, a party need not provide ESI from sources that the party identifies as “not reasonably accessible”
So, what’s “Not Reasonably Accessible”?
Good question!
At this point, it’s is a moving target, but:
- Be readily usable- Not require
restoration or manipulation
- Be active, online, near-line or archival
- Be not readily usable- Require some type of
manipulation/restoration/reconstruction
- Be erased, like tapes- Fragmented- Damaged
“Accessible” data may: “Inaccessible” data may:
Even if it’s not “Reasonably Accessible”
A court may still order it produced depending on:
The potential value of the information Whether it can be discovered from some
other source How difficult it really is to access the data How much it will cost Whether a party cooperates in good faith in
the discovery process
AND, under Rule 26:
A court may balance the cost of producing data that is “not reasonably accessible” by shifting all or part of that cost to the requesting party, depending on the circumstances - Good Faith is VIP
In larger organizations, that cost can be astronomical. Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684
Rule 34: Producing Documents
and ESIA party may request:
Documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. . .
Rule 34(2) -The party against whom the request was served
must respond (either object or assent)
Within 30 days!
So, the 4th Thing You Need to Know:
#4
Make this a priority
(and get staff overtime pre-approved!)
Rule 34(b): Producing Documents
and ESI
The requesting party may specify the form or forms in which ESI is to be produced (native files, litigation support files,
TIFF images, metadata, extracted text, PDF, printed
paper)
If I could afford the cost –I would ALWAYS want the native
file with the Metadata!
Why?
Rule 34: Producing Documents
and ESI
If a Request does not specify a form for producing ESI, a party
must produce it in a form or forms in which it is ordinarily maintained or in a reasonably
usable format.
The infamous
LITIGATION HOLD
Document retention and destruction policies;
Document retention architecture:
Your servers, email system, back up systems, off-site storage facilities, data custodians, access rights, IM archiving, voice mail archiving, etc.
If you don’t have these mapped out, you should!
The first thing your counsel will do is learn your:
If litigation is reasonably anticipated, Counsel may:
Issue a Litigation Hold letter, identifying the information to be preserved
Insist that you suspend routine document and ESI destruction (generally does not apply to routine back up tapes)
Meet with the major business units (Records, IT, HR) to explain the hold
Institute tracking and audit measures
Meet with all employees Require changing records
management or IT procedures
Communicate directly and often with you, IT and key players
Reissue the Litigation Hold Letter repeatedly and send periodic reminders
Assess whether key individuals should be required to certify their preservation and retention actions
This seems like a lot
Why go through all this?
Rule 37: Failure to Make Disclosures or to Cooperate in
Discovery; Sanctions
An award of attorney’s fees and expenses to the party moving for an order to compel discovery
Directing the jury to take as established the matters claimed to be withheld in discovery
Prohibiting the disobedient party from introducing designated matters into evidence
Striking pleadings in whole or in part
Dismissing the action in whole or in part
Rendering a default judgment against the disobedient party
Treating the discovery failure as contempt of court
Taking action against the party AND ITS ATTORNEY!
The 5th Thing Records Managers Need to Know:
#5
Your lawyer’s not being a pest just because
she can!
NON-PARTIES
Rule 45: Subpoenas
May be issued to non-parties If to a non-party, Notice must first be served on
the parties, and the Subpoena so should indicate May specify the form or forms in which ESI must
be produced Must be issued by a court or authorized attorney May command a personal appearance or the
production of documents, or both, at a date/time/place certain (Subpoenas duces tecum)
Non-party may object within 14 days
Responding to a Subpoena for Documents
Must produce them as they are kept in the ordinary course of business, or
Must organize and label them to correspond to the categories in the Subpoena
If a Subpoena does not specify a form for ESI, the ordinary form is required
A non-party may make copies in lieu of producing the originals
What’s it Gonna Cost Us?
If you choose to make copies, you are usually required to pay your own costs of production
Non-party may make the same objection to producing ESI that is “not reasonably accessible”
Non-party MUST respond/object within 14 days or
The non-party is deemed to have waived any objection
If you do object, the Court has a duty to protect you from unreasonable costs of production
AT TRIAL
Rule 803: Federal Rules of Evidence
Documents are admissible if they are kept in the course of a regularly
conducted business activity AND the custodian of records testifies or
certifies as to their authenticity
Written Certification must state
under oath:
When the record was made; That it was made and kept as a
regular practice; In the regular course of business; and That it is authentic or an authentic
copy
What does this mean for ESI?
Your system should have the ability to freeze a record – and the metadata can prove this
You should have, at the very least, an audit trail showing document creation, modification, access, duplication, etc.
The 6th Thing Records Managers Need to Know:
#6
You need to be sure when testifying or
certifying under oath
We talked about:
Pre-Trial Discovery, specifically Document Production, and your role in it;
The nuances of Electronically Stored Information;
Why it’s important to have retention and destruction policies in place, and to map your retention architecture;
What to expect in a litigation hold; Sanctions for failure to produce documents at
trial; Subpoenas to non-parties; and Testifying or certifying authenticity at trial
QUESTIONS
COMMENTS
EXPERIENCES
???
Lori A. Tetreault, Esq.
Thank you!