In the last two articles, Preserving Data in the Wake of Amended Rule 37(f) and Reacting to the Federal Rules’ EDD Changes, we discussed how recent case law and the changes to the Federal Rules of Civil Procedure require a party to assemble a team to preserve potentially discoverable electronically stored information (ESI) within an electronic information system and produce it during discovery. The team will have to know the complete workings of the system, the cost of running it and the costs of electronic discovery production. We also discussed how the nontechnical members of the team would have to learn about ESI and advised how to do so. Underlying all of these dictates is that the responsibility to preserve and produce electronic discovery lies with counsel, which means that we as lawyers must learn enough about ESI to discuss it intelligently.

That responsibility is no more clearly presented than in requirements of Rules 26(f) and 16(b)(5), which direct the parties to meet and confer “as soon as practicable” but no later than 90 days after the defendant’s appearance to discuss “any issues relating to preserving discoverable information” and develop a discovery plan that concerns “any issues relating to disclosure or discovery of electronically stored information.” These issues include:

  • Mandatory disclosure of all ESI under Rule 26(a)(1)(B);
  • What is not being produced because it is not “reasonably accessible because of undue burden or cost” under Rule 26(b)(2)(B) and so not subject to discovery either at all or without the cost of production shifted to the requesting party;
  • The form of production; and,
  • “Claw back” and “quick peek” agreements to provide for the return of privileged documents inadvertently disclosed.

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