Managing Electronically Stored Information

© DuBois, Bryant & Campbell LLP

TAKING CHARGE OF ESITAKING CHARGE OF ESI

Seth Randle and Howard NirkenDuBois, Bryant & Campbell, LLP700 Lavaca Street, Suite 1300Austin, Texas 78701

Phone: (512) 457-8000Email: [email protected]: [email protected]

Legal Considerations in the Retention of Legal Considerations in the Retention of Electronically Stored InformationElectronically Stored Information


OverviewOverview

• What’s the hype around new FRCP rules• Electronically Stored Information (ESI) • Challenges Managing ESI• Retention Issues in Litigation • Best Practices for Managing ESI• Conclusion


Federal Rules of Civil Procedure

1970 2006“data compilations” = “electronically stored information”

Organizations now are being told how and when to produce in litigation.


Quick Glance at the Rules

26(a)(1) and (3) Lawyers must discuss ESI in the initial planning conference and specifically included in the initial mandatory disclosures

26(a) (2) Disclosure can only be denied when not “reasonably accessible”.

34(b)The requesting party can specify the form in which ESI is to be produced (e.g. in native format).

37(f) Safe Harbor No sanctions if not produced as a result of routine, good faith operation of a computer system.


Omnia Presumuntur Contra Spoliatorem

• All things are presumed against a spoliator• Don’t be the Spoliator of ESI

Your job is to avoid that from ever being muttered


Challenges of Managing ESIChallenges of Managing ESI

• Enormous volume of information

• Information exists in multiple formats and locations

- Internally: Hard drives, laptops, servers, voice mail, backups

- Externally: Home PCs, cell phones, PDAs, flash drives, Internet

• Hard to destroy

• Easily copied and transmitted

• User history captured in metadata


Reasons to Retain ESIReasons to Retain ESI

• Business Requirements- Legitimate need to conduct business and preserve organizational

knowledge

• Statutory or Regulatory Requirements- Typically dictate a minimum retention period

• Litigation Requirements- Inability to produce documents during litigation can have dire

consequences


Costs and Risks Associated with ESICosts and Risks Associated with ESI

• Increased storage costs• Operational inefficiencies• Difficulty searching and locating key information • Increased response time during litigation• Risk of “smoking gun” emails

You can store too much electronic information…


Retention Issues in LitigationRetention Issues in Litigation

What is a litigation hold?

A communication within an organization that orders all information relating to a dispute that is the subject of current or ‘reasonably anticipated’ litigation be preserved for possible production during litigation


Any party may serve on any other party a request to produce... any designated documents or electronically stored information including:

• writings,

• drawings, images, photographs,

• charts and graphs

• sound recordings,

• other data

Scope:

Source: FRCP 35(a)

“Reasonably Accessible” = Discoverable


“Reasonably Accessible” = Discoverable

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible. (If it is shown that they are not reasonably accessible, the court can shift the cost of such production to the party requesting the documents)

FRCP 26(b)(2)(B)

Standard:


What ESI is Reasonably Accessible?What ESI is Reasonably Accessible?

1. The specificity of the discovery request

2. The quantity of information available from other and more easily accessed sources

3. The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources

4. The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources…

Courts determine what is ‘reasonably accessible’ by balancing the following considerations:


What ESI is Reasonably Accessible?What ESI is Reasonably Accessible?

5. Predictions as to the importance and usefulness of the further information

6. The importance of the issues at stake

7. The Parties’ resources (Not reasonably accessible documents include records on legacy systems no longer in use, records on certain back up tape systems)

Continued…

Sampling of ESI may be required to gauge the likelihood of finding relevant information.


Safe Harbor from SanctionsSafe Harbor from Sanctions

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system. FRCP 37(f)


Ten steps to a routine, good-faith operationTen steps to a routine, good-faith operation

1. Form a working group

2. Host workshop to educate working group

3. Identify current storage practices

4. Develop a Retention Management Policy (“RMP”) with detailed retention schedules & policies

5. Develop storage configuration plan

6. Prepare implementation plan

7. Communicate policy and plans

8. Implementation

9. Strictly enforce destruction schedule and litigation holds

10. Follow up with periodic training and audits to ensure proper implementation


Conclusion: Take Charge of ESIConclusion: Take Charge of ESI

• ESI issues have the potential to grow exponentially

• Serious consequences result from failing to address ESI

• A Retention Management Policy is an essential first step to managing ESI

Managing Electronically Stored Information

Documents

Transcript of Managing Electronically Stored Information