From ZEK Law on Electronic Discovery & Information Governance
by Daniel Garrie with contributions from Anthony I. Giacobbe, Jr.
CIOZONE Blog Entry—September 23, 2008 (Written by Anthony Giacobe and Yoav Griver)
Utilizing technology to manage discovery is not just a sound method of lowering the costs of litigation and compliance (as discussed on this blog before), but is necessary simply to satisfy a company's legal obligations. Take, for example, civil document discovery under the Federal Rules of Civil Procedure ("Rules"). The Rules were changed in 2006 to require parties to identify and produce electronically stored information. As Courts grapple with electronic information issues, we are seeing them hold companies to a rigorous standard in locating and producing documents.
Traditionally, the Rules permitted companies to produce documents and information in two ways:
(i) organized to correspond to the specific categories of documents called for by the document request, or (ii) as the documents "are kept in the ordinary course of business." In a recent case, Pass & Seymour Inc. v. Hubbell Inc., 5:07-cv-00945 (N.D.N.Y. Sept. 12, 2008), the plaintiff company, Pass & Seymour, responded to discovery propounded as part of a patent litigation by producing, in electronic format, more than 400,000 pages of undifferentiated documents in 220 unlabeled computer folders, on the basis that this production mimicked how the documents were kept in the ordinary course of business.
Defendant Hubbell objected, contending that, in producing documents electronically, Pass & Seymour was required to produce not just the documents themselves, but additional "information necessary to make the production useful to" Hubbell. Magistrate Judge David E. Peebles agreed with Hubbell, holding that more than mere production was now required under the Rules. The Court gave Pass & Seymour 30 days "to produce to defendant an index of the documents produced, revealing the custodian, location and general description of the filing system under which each document was maintained in the ordinary course of plaintiff's business, further including an indication of whether the document is kept in digital format, hard copy, or both." See also Oklahoma ex rel.
Edmonson v. Tyson Foods Inc., No. 05CV329 (N.D.Okla. 2007) (court requires disclosing party to index and organize discovery materials to make them more useful to receiving party). As lawyers and judges become more tech-savvy, the demands and burdens imposed on companies will surely increase. Companies will not only have to produce documents, but to produce them in particular ways in order to make things easier on the Court and opposing party. This puts even more importance on making sure that your company's data retention and destruction policies are synchronized with your technology, and that your company's IT group becomes involved in legal projects as soon as possible.
More Blog Posts:
Tech Firms Pitch Tools For Sifting Legal Records
Legal driving IT v. Business driving IT
Information Management the disconnect between policy and the technology
E-Discovery And Archiving In The Real World
On E-Discovery
Featured Blogger Daniel Garrie with contributions from Anthony I. Giacobbe, Jr.
Daniel Garrie is a principal with CRA International, a global consulting firm that offers economic, financial, and business management expertise to major law firms, industries, accounting firms, and governments around the world. Daniel specializes in legal technology risk management. He consults primarily to in-house counsel and IT departments on information management strategies in the United States and internationally, e-policy guidance synchronization (policies and operations), e-discovery litigation risk management and legal technology strategies, integration, and best practices. His areas of expertise range from digital privacy, e-discovery, VoIP, e-Discovery, SOX, digital sexual harassment, and spyware. He is frequently sought after presenter at legal and technology seminars and conferences worldwide.
Prior to joining CRA, Mr. Garrie was a vice president of LegalTech Group where he provided subject matter expertise and project management in engagements pertaining to e-Discovery, vendor selection, litigation readiness, digital privacy, and digital information risk management.
Mr. Garrie is admitted to practice law in New York and New Jersey, and currently serves as editor-in-chief of the Journal of Legal Technology Risk Management.
Anthony I. Giacobbe, Jr.
Tony is Of Counsel in the New York office of the law firm of Zeichner Ellman & Krause LLP. He represents major financial institutions and other clients in civil, criminal, regulatory and compliance related matters. Tony also represents clients in connection with investigations initiated by Congress and by federal, state and local prosecutors and regulators. Tony received a B.A. in Government from Georgetown University in 1989. In 1993 he received a J.D. from Columbia Law School and an M.B.A. from Columbia Business School. He currently serves as an adjunct professor at New York University.
Tony writes and lectures on electronic discovery and technology issues to various corporate management,accounting and technology groups. Tony is a member of the e-discovery working group of the Sedona Conference, a leading think tank dealing with the intersection of law and information technology.
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