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Mind the Gap: It is the Law

J. David Morris markets eDiscovery software in EMC’s newly created group SourceOne eDiscovery – Kazeon.

Following the introduction last week of the SourceOne Tower, this week we visit the Legal District.  The objective of the Legal District is to provide guidance on evolving trends and 3rd party views on managing eDiscovery challenges.  We also provide insight into the technology to help create a repeatable proactive approach to eDiscovery – lowering your cost and risk.

While the Legal District would seem a logical destination for legal staff, the objective is to help bridge communications between legal, IT, and compliance.  Ironically, the most common challenge for a corporation isn’t an esoteric legal precedent or complex defense strategy. It is effective communications between the legal and IT teams.  Even though both teams speak the same language, the legal and IT lexicon is so drastically different they might as well be from different planets. Cross-functional teams must mind the gap and bridge the communication challenges to effectively defend the corporation during a litigation proceeding.

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The Federal Rules of Civil Procedure (FRCP) dictate the legal standards and rules that apply to the process for preparing and producing electronically stored information (ESI), as well as for resolving related disputes in the United States.  As we will see, FRCP encompasses both legal obligations, as well as technical obligations of both parties. For IT professionals, these are the tenets, which bind your legal team:

FRCP 16: The courts expect companies to be ready for litigation.  This includes having fluent knowledge of the IT infrastructure, content repositories and network architecture, so that the pretrial conference leads to consensus on what ESI is discoverable.

As FRCP 16 spells out, legal and IT are on the hook to deliver ESI, as well as discuss limitations and capabilities of a corporation’s IT operations. Recently, Judges Maas and Peck conducted a session at LegalTech in NY called “Ten eDiscovery Commandments” which the first commandment was “Thou shalt exhibit competence and avoid pleading technological ignorance.”

FRCP 26: Provides protection from excessive or expensive e-discovery requests, except when you don’t deserve that protection.

FRCP 26 provides protection from overly burdensome discovery requests.  However, this has been the go-to rule for defendants to attempt to sidestep eDiscovery and judges are becoming more stringent in its application.

FRCP 26(a)(1)(C): Requires that corporations make initial disclosures no later than 14 days after the Rule 26(f) meet and confer, unless an objection or another time is set by stipulation or court order. If you have an objection, now is the time to voice it.

Rule 26(b)(2)(B): Introduced the concept of not reasonably accessible ESI. The concept of not reasonably accessible paper had not existed. This rule provides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party.  It is often referred to as the “Backup Tape Recovery” problem, which was covered in Zubuake v. USB Warberg opinion.  California’s Civil Discovery Act passed and became a bill, which effectively overturned the Zubulake ruling making all disaster recovery ESI discoverable.  It is IT’s worse nightmare.

FRCP 26(b)(5)(B): Gives courts a clear procedure for settling claims when you hand over ESI to the requesting party that you shouldn’t have.

This rule provides that if information is produced in discovery that is later subject to a claim of privilege or protection as trial preparation material, the party who received this information must promptly return, sequester or destroy the specified information as well as any copies it has and must not use or disclose this information until the claim is resolved (“clawback” provision). In order to expedite a determination of the claim, the receiving party may promptly present the information to the court under seal. If the receiving party had disclosed the information prior to being notified of the claim, it must take reasonable steps to retrieve it.

Rule 26(f): This is the meet and confer rule. This rule requires all parties to meet within 99 days of the lawsuit’s filing and at least 21 days before a scheduled conference.

Rule 26(f) causes the most anxiety during litigation. It sets the timeline eDiscovery, which each party must follow.  Without prior eDiscovery capability and policies deployed, the corporation must solve both the eDiscovery legal and technology challenges at the same time.

Rule 26(g): Requires an attorney to sign every e-discovery request, response, or objection.  This rule basically puts a corporation’s legal counsel in a position where they are held directly responsible for…… everything.

FRCP 37: Judges have the power, courtesy of Rule 37(f), to impose sanctions against a party “who fails to obey an order to provide or permit discovery.”

Recently in Magaña v. Hyundai, the trial court found that Hyundai had willfully violated the discovery rules, its discovery abuses had substantially prejudiced Magaña in preparing for trial and it had spoiled and lost evidence. The judge awarded Jesse Magaña $8 million dollar default judgment against Hyundai as discovery sanction.

Rule 37(e): Creates a safe harbor from sanctions if you did not preserve, and therefore no longer have, ESI that’s requested provided that certain conditions and circumstances are met. Judges also have powers that are considered inherent in the court that expand the ability to impose sanctions beyond Rule 37.

These are the main rules, which are top of mind for your legal team.  Understanding the IT implications of FRCP is critical for IT professional to mind the gap and have constructive discussions with their legal team.    Everyone can meet in SourceOne City – the Legal District is a means to help you bridge the gap in communication that may exist in your organization.

Want to learn more?  Visit the Legal District of SourceOne City.

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