Digital White Papers

33 WWW.ILTANET.ORG | ILTA WHITE PAPER LITIGATION AND PRACTICE SUPPORT 2015 Revisions to the Federal Rules of Civil Procedure: What They Mean to Us One Year Later Plaform Advertising, Inc., No. 14-02464 (D. Kansas, Feb. 8, 2016) the court stated, "In revising Rule 37(e), the Advisory Commiee expressly instructed that 'reasonable steps' to preserve ESI suffice; the Rule 'does not call for perfection.'" Nonetheless, as ediscovery professionals, we need to help ensure the litigation hold and preservation steps are defensible. How? Consider the use of automated hold platforms to efficiently issue and manage legal hold notices. Develop standard checklists for custodian and IT interviews that cover the ESI data sources that could come into play. Review retention policies and understand what ESI sources might require prompt preservation because of a routine purging schedule, and consider other sources that might allow you to preserve in place. Document your efforts so you can show the other party or the court the efforts you undertook, should they come into question. Do not underestimate the value of a proactive preservation process. As noted in Browder v. City of Albuquerque, 2016 U.S. Dist. LEXIS 95054 (D.N.M. July 20, 2016), "The court can pardon human error or negligence, but not when they are symptoms of a larger problem: an inadequate information management and evidence retention policy." The Scope of Discovery The other highly anticipated amendment from the December 2015 FRCP revisions concerned Rule 26(b)(1), which addresses the scope of discovery. This rule was revised to add language that addresses the need for proportionality. Proportionality relies heavily upon cooperation and transparency between parties, and it applies throughout the discovery process — from preservation to production. As noted in In re Bard IVC Filters Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016), "The test going forward is whether evidence is 'relevant to any party's claim or defense,' not whether it is 'reasonably calculated to lead to admissible evidence.'" One case in 2016 that addressed proportionality was Martinelli v. Johnson & Johnson, No., 2016 WL 1458109 (E.D. Cal. Apr. 13, 2016). Here, the parties were encouraged to maintain consistency with the proportionality standard and "agree to appropriate limits on discovery, including limits on the number of custodians, discoverable data sources and relevant time periods." Cases addressed proportionality regarding the overall scope of discovery (e.g., Gilead Scis., Inc. v. Merck & Co. 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)), production format (e.g., Lifetouch National Studios, Inc. v. Roles, Case No. 15-234 (W.D.Pa. Dec. 15, 2016)) and the need for additional discovery (e.g., Wilmington Trust Co. v. AEP Generating Com., 2016 U.S. Dist. LEXIS 28762; 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)). What does that mean to ediscovery technologists? We need to develop resources to aid legal teams in addressing proportionality discussions and to help them avoid conflicts by being aware of best practices. For example, many of the production format proportionality cases addressed by the courts last year relate to issues on agreed-upon or preferred production format. The litigation technology team should develop standards for your group to distribute to aorneys. Identify the preferred format and metadata fields for received productions and the format in which you intend to produce. By documenting, distributing and training legal teams on the technical specifications —and the pros and cons of varied production formats (e.g., PDF versus TIFF with load file) — you might avoid the need to reproduce in another format later. CAROLINE SWEENEY Caroline Sweeney, Global Director of Ediscovery & Client Technology Services at Dorsey & Whitney, is responsible for the delivery of Dorsey's ediscovery services, including LegalMine managed services, litigation and trial technology support and practice technology support. Caroline is a member of Dorsey's electronic discovery practice group; the cybersecurity, privacy and social media practice group; and the senior information systems management team. She also sits on the firm's cybersecurity and innovation committees. Caroline has extensive experience consulting lawyers and clients regarding ediscovery, and she has consulted clients on litigation preparedness and information management policies. Contact Caroline at sweeney.caroline@dorsey.com.

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