ch 8 overview of the discovery process

ESI Protection and Retrieval on the International Scene

- American businesses and organizations who have branches, plants, stores, factories, offices, and subsidiaries in foreign countries cannot transfer data to those foreign locations and then argue that the data is beyond their control. Similarly, alien corporations with American subsidiaries may find that they must cooperate with American rules of discovery despite legal conflicts with the law of their own nations. The courts have little patience with alien companies that take advantage of the American socioeconomic system and the American legal system and then use foreign privacy laws to protect critical evidence. This position is especially apparent when the courts must deal with American companies operating subsidiaries in the European Union (EU) or with European corporations operating American subsidiaries. The conflict is caused by the EU's Data Protection Directive that prevents European companies from sharing ESI with countries, such as the United States, which do not provide the same level of security for the ESI as afforded by the EU - Consequently, American companies dealing with European corporations must convince those alien corporations that they, the American companies, will grant the same level of protection to ESI as that guaranteed by the EU Data Protection Directive. This process was given official status when, in 2000, the EU agreed to permit European companies to deal with American companies and transmit protected ESI to those American companies as long as the Americans follow established safeguards. These safeguards, which are known as the Safe Harbor Principles, and which are enforced by the U.S. Department of Commerce, include 1) Notice—People subject to ESI collection and transfer must be notified about the process by the ESI collector, must be told the objectives of the collection process, and must have a chance to communicate questions or concerns about the ESI collected and about how to restrict the communication and treatment of that ESI; 2) Choice—People who are subject to the collection and transfer of ESI must be empowered to stop the process if they so choose 3) Continuing protection—When ESI is sent to third parties those third parties must also give the same degree of protection to that ESI as guaranteed by the EU Directive, the Safe Harbor principles, or an equivalent privacy policy 4) Access—People subjected to the ESI collection process must have the ability to see, challenge, alter, and erase mistaken ESI if necessary; 5) The party taking the ESI must do what it can to protect the ESI from elimination, misapplication, and unapproved entry, as well as from unauthorized release, improper changes, and unapproved deletions; 6) Data Integrity—Only relevant, comprehensive, correct, and up-to-date ESI can be subject to the collection process; and 7) Enforcement—A way to uphold these rules must be in place, including a way to verify compliance and to punish those who do not comply. - None of this will prevent a court from ordering a corporation to deliver ESI during discovery. The use of a safe harbor protection may, however, demonstrate that a corporation's undue burden argument is made in good faith. A company that wants to comply with the Department of Commerce's Safe Harbor provisions can do so voluntarily by notifying the Department in writing of its intent to do so. The corporation must also renew this notice annually in writing. While following the Safe Harbor principles is not required by law, once a company declares its intent to adhere to the principles, the failure to do so may be actionable by the Federal Trade Commission or the Department of Transportation under federal statutes prohibiting unfair and deceptive practices. Authorized state agencies may also seek enforcement of the provisions under the appropriate state laws that prohibit unfair and deceptive practices.

Rule 37 ESI Amendment

- A recent amendment has been added to Rule 37 to protect parties who lose ESI because of routine computer operations. The amendment, which is often referred to as the "good-faith" amendment, states that the court cannot enact sanctions against a party if that party cannot produce ESI because that ESI has been eliminated because of standard computer procedures. For example, if, prior to the threat of litigation, a company's computer system had been programmed to automatically delete e-mail records after a certain time period, the party cannot be sanctioned for the loss of those e-mail records. On the other hand, the party must make a genuine attempt to retrieve the ESI even if it has been deleted because, as we have seen, computers have a way of preserving data that appears to be erased. Moreover, a litigant cannot take advantage of a standard computer procedure that it knows will delete certain information if the computer is not reprogrammed. On the other hand, the litigant can show good-faith by proactively disabling any programs that automatically erase data. This is why, at the first sign of a pending lawsuit, your supervising attorney will advise a client to initiate an immediate litigation hold on all ESI. - Moreover, litigants must understand that, while the good faith provision will protect them against sanctions for lost data, it will not eliminate any extra work or extra expense that might be needed to reprogram their system to eliminate the automatic deletion process or to recover evidence that has already been lost when the program was still operational. Thus, if ESI is deleted because of standard computer procedures, a litigant may still have to pay for any additional depositions that might be needed to uncover the actual content of that ESI.

Choice of Discovery Methods

- An attorney has five methods of discovery from which to choose: the deposition; interrogatories; a request for the production of documents, ESI, and tangible things or entry upon land for inspection and other purposes; a request for physical or mental examinations; and a request for admission. - In federal court, the discovery process is regulated by Rule 16, Rules 26 through 37, and Rule 45 of the Federal Rules of Civil Procedure (see Exhibit 8-1) as well as Rules 502 and 702 of the Federal Rules of Evidence. Rule 16 authorizes the court to issue a scheduling order that, among other things, limits the time that the parties have to finish the discovery process. The amendments to the rule make it clear that this order can include any arrangements that the parties have made regarding the revelation or the discovery of ESI, as well as any promises regarding assertions of privilege or protection. Rule 26 sets out the general provisions concerning discovery. Rules 27 through 36 explain the various discovery techniques that can be used by litigants in federal court. The final rule, Rule 37, outlines the sanctions that are available when a party does not cooperate with discovery. - A deposition is an out-of-court question and answer session under oath, conducted in advance of a lawsuit as a part of the discovery process. Depositions are regulated by Rules 27 through 32 of the Federal Rules of Civil Procedure. - Interrogatories are written questions requiring written answers under oath and directed to a party, in which another party seeks information related to the litigation. Interrogatories are governed by Rule 33 of the Federal Rules. - A request for the production of documents, electronically stored information (ESI), and tangible things, or entry upon land for inspection and other purposes, which is covered by Rule 34, is a request that a party or other individual involved in a lawsuit provide specific documents, ESI, or other physical evidence to the party making the request. As the name implies, this request may also involve a request to enter land to inspect that land to gain facts related to the lawsuit. - A request for a physical or mental examination asks a party to undergo a physical or mental examination provided that the examination involves a condition at issue in the pending action. - A request for admission asks a party to admit the truth of certain facts or the genuineness of a document so that these issues do not have to be proven at trial. An attorney must consider both the expense and the time available when choosing from among these methods. Requests for physical and mental examinations and for admissions are regulated by Rule 35 and Rule 36, respectively. Rule 45 outlines provisions regarding subpoenas. The new amendments to this rule add ESI to the list of evidence that can be contained within a subpoena. The new rule also asserts that subpoenas may indicate the form of ESI to be used by the party answering the subpoena. Rule 502 of the Federal Rules of Evidence protects the attorney-client privilege and the work product privilege, while Rule 702 covers the use of expert witnesses.

ESI and Litigation Privileges

- Another job for the litigation response team is to conduct a search of all paper documents and all ESI that has been retrieved in order to identify all privileged documents. A privilege is a protection afforded by the law to prevent or limit the discovery of evidence created within a setting such as that provided by the attorney-client or the physician-patient relationship. This has become one of the most difficult and expensive areas of discovery because ESI inevitably involves endless amounts of intricate, repetitive, disorganized, and complicated data - Even before the new rules went into effect, the courts recognized that attorneys could no longer conduct discovery as if ESI did not exist. For this reason, some courts issued serious sanctions against attorneys who did not properly deal with the unique problems created by ESI. For instance, in Metropolitan Opera Assoc., Inc. v. Local 100, Hotel Employees & Restaurant Employees International Union, 212 F.R.D 178 (S.D.N.Y. 2003), the court issued a default judgment against the defendant as a sanction for improper discovery. The judge issued the sanction because the attorneys: (1) never gave adequate instructions to their clients about the clients' overall discovery obligation, [including] what constitutes a "document" ... ; (2) knew the Union to have no document retention or filing systems and yet never implemented a systematic procedure for document production or for retention of documents, including electronic documents; (3) delegated document production to a layperson who ... was not instructed by counsel that a document included a draft or other nonidentical copy, a computer file and an e-mail; ... and (5) ... failed to ask important witnesses for documents until the night before their depositions and, instead, made repeated, baseless representations that all documents had been produced. - In another case, the court stopped short of issuing a default judgment, but did bar the party responsible for deleting the relevant ESI from producing any evidence at trial concerning the deleted material. Nor would that party be permitted to cross-examine the other party's witnesses in relation to the missing evidence. The court also ordered the party responsible for the deletion to pay all attorney fees and any costs resulting from the motion regarding the deletion

Confessor-Penitent Privilege

- Any communication between a clergy member and an individual is protected by the confessor-penitent privilege when the relationship involves the spiritual support of the penitent. Although, strictly speaking, the privilege belongs to the penitent rather than the clergy member and thus the penitent can give up the privilege, the law protects a clergy member who has taken a religious oath not to reveal the content of such counseling sessions. This is probably why some jurisdictions refer to the privilege as the clerical privilege. It is clear that the privilege covers spiritual transgressions and concerns that the penitent has revealed to his or her confessor. However, some jurisdictions limit the privilege to cover only matters associated with such a confession, whereas others expand it to include any confidential counseling session. Because of the differences among various courts, paralegals must check the status of this privilege in their jurisdiction.

ESI and the Litigation Response Team

- As a second step, your supervising attorney should talk to every member of the client's firm who is likely to be named as a party in the lawsuit and to all those who have access to discoverable information. During these discussions, she can reinforce the importance of the litigation hold, emphasize the need to be careful with all ESI, and find out all that she can about the client's computer system. As a third step, your supervising attorney should issue a directive that tells all workers to keep duplicates of everything in their electronic files. If possible, your supervisory counsel should take control of those duplicates. If this is not possible, then the backup material should be set aside and kept at the client's office in a secure place. This step will necessitate conversations with members of the client's IT department, who will be able to determine how best to preserve all necessary ESI. - Finally, your supervising attorney should set up a litigation response team. A litigation response team is a group of highly trained individuals who are charged with the job of learning all there is to know about the client's ESI system, including all backup, retrieval, formatting, deletion procedures, and so on.

Ethical Considerations in Discovery

- As noted earlier, the primary objective of discovery is to ensure that lawsuits are decided on the facts and the legal merits of the case rather than on surprise or trickery. For such an objective to be met, however, all parties must treat the discovery process with the highest ethical regard. It is unethical for an attorney to prevent another party from obtaining evidence or to destroy evidence before the other party can see it. For example, in the Raphael case from this chapter's Commentary, it would be unethical for your attorney to destroy a letter, memo, voice-mail recording, video or digital recording, computer printout, fax, text, IM, spreadsheet, or e-mail record that indicates that Dr. Raphael knew that Phipps had fabricated and falsified evidence in the writing of his abstracts and grant proposals. - Similarly, it is a violation of ethical principles to falsify evidence or to help someone else falsify evidence. It is also unethical for an attorney to make a discovery request that is unwarranted or to request much more information than is really necessary for the case. Naturally, because the paralegal's activities are actually an extension of the attorney's, she is also bound by these same ethical principles.

The Extent of Allowable Discovery

- The Federal Rules of Civil Procedure limit discovery to information that will support the claims or defenses of the parties to the litigation. Most states impose similar limitations. Nevertheless, the extent of the discovery process is quite broad—broader, in fact, than the extent to which evidence can be introduced in a case once it has reached the trial stage. There are, however, several limits on the discovery process, including the attorney-client privilege, the work product privilege, the common interest privilege, the Fifth Amendment privilege against self-incrimination, controlled access to expert testimony, confidentiality agreements, and protective orders.

Duty Of Mutual Disclosure Under Rule 26

- As noted previously, Rule 26 of the Federal Rules of Civil Procedure now requires that the parties confer early in the proceeding. More importantly, the rule provides for mutual disclosure. Disclosure requires that the parties exchange certain information without the necessity of a formal discovery request. These disclosures occur at three different times in the course of litigation. Early in the case, the parties are required to exchange information identifying potential witnesses, documentary evidence and tangible evidence (including ESI), evidence of damages, and copies of insurance policies. Later in the case (no later than 90 days before trial), the parties must exchange information about expert witnesses who will testify at trial. However, if the expert testimony is to be used simply to challenge evidence that was introduced by another party related to the same topic, that time period is shortened to 30 days after the original revelation of that evidence. Shortly before trial (no later than 30 days before trial), the parties must exchange information about evidence they intend to use at trial.

The Objectives of Discovery

- As noted, one of the primary objectives of discovery is to prevent one of the parties from winning the lawsuit by surprise or trickery. Another goal is to determine the truth or falsity of the alleged facts that form the basis of the lawsuit. A third objective of discovery is to examine the facts and weigh the advisability of proceeding with the case or settling early. Frequently, a case that looks promising in the opening stages loses its viability as more facts come to light. For example, in the Raphael case, if your supervising attorney uncovers evidence that Dr. Raphael helped Phipps to falsify some of the evidence used in his articles, she may decide to immediately settle the case with the NSF. In contrast, early discovery may reveal that your client's case is so strong that there is no need to proceed to trial. In such a situation, your attorney will file a summary judgment motion. For instance, in the Raphael case, your supervising attorney may discover that another administrator at JHNU rather than Dr. Raphael made the decision to retain Phipps despite Raphael's advice to dismiss him. In such a situation, the facts and the law would clearly support Raphael, and a summary judgment motion would appear to be appropriate. A fourth objective of discovery is to preserve testimony that might be lost should a witness disappear or become incapacitated or should records be lost or destroyed. Finally, some discovery methods can be used to impeach the credibility of a witness should that witness offer testimony at trial that contradicts his or her earlier statements made during discovery.

ESI Personnel

- As one of the first steps in the discovery process, your supervising attorney must identify those individuals who are responsible for her own client's computer system, as well as those responsible for the opposing party's system. The individuals responsible for a company's or an institution's computer system generally include not only top executives but also middle-level managers and administrative assistants. Remember to include all in-house and independent IT experts who have shaped and maintained the system. Your supervising attorney should consider using interrogatories to uncover both the identities of the relevant personnel and the types of ESI available. The interrogatories can then be used to guide the choice of those individuals who will undergo depositions. This information can also guide document-production requests.

Disclosure of Expert Testimony

- Before trial, the parties must disclose to one another the identity of any person who may be called to testify at trial as an expert witness. As noted above, this disclosure should be made at least 90 days before the trial date, unless the evidence is intended solely to contradict or rebut evidence of another expert. In such a situation, the disclosure should be made within 30 days after the disclosure made by the other party. Along with the identity of the expert, a copy of a written report prepared and signed by the witness should be supplied. This report should contain the following information: 1. statement of all opinions to be expressed and the basis for all opinions; 2. facts or data considered by the witness in forming opinions; 3. any exhibits to be used as a summary of or support for opinions; 4. qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; 5. a list of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years; and 6. a declaration of the compensation to be paid for the study and the testimony in the case. - Rule 26 was recently amended to protect the work product privilege as it relates to expert witnesses. Under the old rule, experts were required to reveal any "data or other information" that they used in writing reports, preparing testimony, or developing the opinion that they planned to deliver in court. This clause was frequently interpreted by the courts to permit the discovery of any communication that passed between an expert and an attorney, including a draft copy of any report written by the expert and sent to the attorney, thus clearly threatening the protection provided by the work product privilege. The new rule indicates that the only material that the expert must reveal in discovery is that which relates to "the facts or data considered by the witness" in creating his or her opinion (see #2 above). - This limitation does not mean that an expert's work in formulating an expert opinion is completely closed to discovery. On the contrary, the rule still requires that the expert provide (a) information about his or her compensation, (b) details on the information used to develop his or her testimony, and (c) any presumptions or suppositions about the case that the attorney might have given to the expert, if the expert's opinion came from those presumptions and or suppositions - Also, under Rule 26 (a)(2)(C), when the expert witness is not obligated to provide a written report, that witness must still disclose "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." - Unfortunately, the new amendments to Rule 26 have not eliminated all of the disclosure problems associated with expert witnesses. The disclosure requirements listed under Rule 26 can also cause difficulties in cases involving large amounts of ESI that must be accessed by IT personnel. Up until a short time ago, most attorneys would not have considered work done by their own IT employees as the work of experts. Recent federal cases, however, have demonstrated that this may have been an erroneous assumption. Recall, as noted earlier, that the prevailing opinion among the federal courts appears to be that any evidence offered to defend or to critique a computerized search for ESI must be supplied by an expert

Preliminary Decisions Regarding Discovery

- Conducting all discovery, but especially conducting the discovery of ESI, is difficult and complicated but not impossible. During the preliminary stages in a case, an attorney must decide which discovery techniques are best suited to the lawsuit. In making these decisions, the attorney must consider the cost and the amount of time involved.

Discovery Strategies

- Despite the changes in the Federal Rules of Civil Procedure and the new focus on ESI, some attorneys still overlook the importance of drawing up an effective discovery strategy before launching into the actual discovery process. This failure is unfortunate because it often means that the attorney and her paralegal are placed on the defensive rather than the offensive side of the litigation process. Instead of moving forward at a measured and controlled pace, she is caught reacting to what the other side has already done. As a consequence, the attorney loses control over the discovery process and spends far too much time patching up errors that could have been avoided had a strategic approach been developed during the earliest stages of the lawsuit. The key to success in developing a discovery strategy is to have a set routine that can be used as a pattern or a model in any case. Such a routine would involve a checklist of things that must be done before the discovery process begins. A good portion of this can be completed during the informal discovery process. However, some of it cannot be done until formal discovery begins. One of the first steps in the discovery strategy is to evaluate some of the new electronic discovery tools available to practitioners today. Another initial step involves identifying the type of ESI that is discoverable, as well as identifying those individuals who are responsible for the opponent's computer system. Your supervising attorney will most likely evaluate which of the traditional discovery methods would be best in each case.

Medical Privilege

- The medical privilege is designed to protect the patient rather than the medical practitioner. Although common law rules did not recognize the privilege, it is now a firmly established principle that is acknowledged in most jurisdictions. The medical privilege is designed to encourage patients to be candid with certain health care professionals, generally those who are charged with the primary care of the patient. Although the privilege is usually called the medical privilege, in some jurisdictions it is still referred to as the physician-patient privilege. Nevertheless, whatever name is applied to the privilege, it generally protects not only physicians but also psychiatrists, podiatrists, psychologists, and dentists. The privilege applies only if the relationship is a valid one for purposes of diagnosis, treatment, and/or care, and if the consultation in question was sought voluntarily. Thus, the privilege does not exist if the plaintiff in a lawsuit has been required to submit to a physical or mental examination as a part of the discovery process.

ESI and the Litigation Hold Strategy

- Despite the complexity, the uncertainty, and the multiplicity that surrounds ESI, a resourceful attorney can learn to avoid costly and time-consuming ESI discovery mistakes. For instance, one of the first steps when litigation threatens would be for an attorney to order her client to establish a litigation hold on the routine handling of all ESI. A litigation hold tells the client's employees and associates to stop deleting all ESI. It is best to order a litigation hold as early as possible in the litigation process and to repeat the order in writing often to make certain that all members of the client's firm take the message seriously. - The litigation hold process can be made more efficient by installing a case management software package that can be used to quickly initiate a legal hold in response to pending litigation. The software can be used to place e-mail boxes and other ESI into virtual folders for storage to await discovery and trial. - Recent case law has also made it clear that an attorney cannot simply issue and reissue the written litigation hold order and let it go at that. Instead, he or she must also take the initiative in discovering and separating "bad actors" who might be tempted to hide, alter, or delete vital evidence including especially ESI. - To emphasize the serious nature of the preservation process, an attorney would do well to remind her client and her associates that the responsibility to preserve evidence is a duty that is owed to the court, rather than to the other parties in the lawsuit. - Moreover, a smart attorney will also expressly remind all opposing parties of their preservation duty in the lawsuit by sending those parties a spoliation letter. The spoliation message can be sent as an e-mail or as a paper document.

Involuntary Cooperation

- Despite the inclination toward cooperation, there are times when parties may feel that they have legitimate reasons for resisting discovery. In such cases, the parties must turn to the court for a resolution of the differences.

Expense of Discovery

- Discovery can be a very expensive proposition for all sides in a lawsuit. However, some techniques are more expensive than others. For instance, having a party sit for an oral deposition is considerably more expensive than sending a set of interrogatories to that party. The oral deposition would necessitate paying a court reporter to administer the oath and to transcribe the question-and-answer period. Oral depositions also involve more of an attorney's time, as the attorney must be physically present to interrogate the party. In contrast, the interrogatories would simply involve determining the questions to ask, or word processing those questions, mailing them to the party, and reviewing the answers when returned.

The Nature of Discovery

- Discovery is the legal process by which the parties to a lawsuit search for facts relevant to a particular case. Most people who have not been involved in litigation are surprised to learn that all the parties involved in a lawsuit have the opportunity to gather all the facts relevant to that lawsuit before the case even reaches trial. Accustomed as they are to the surprise witness produced at the last minute by a wide variety of fictional lawyers, most people believe that the attorney who wins a case is the one who traps her opponent by concealing crucial evidence until the last possible second. The truth is almost exactly opposite to this fiction. Pretrial discovery is allowed because the law supports the principle that lawsuits should be decided on the facts and on the legal merits of the case, not on the ability of one attorney to conceal evidence or ambush the other attorney with surprise witnesses. In this chapter, you will explore the objectives of discovery, some preliminary considerations in the discovery process, and some ethical considerations in discovery. The discovery stage is very important not only because it reveals the facts in a suit but also because it helps shape the direction of the case. The results of an effectively conducted discovery process may encourage your attorney to proceed with the case. However, those results may also indicate that a settlement or a voluntary dismissal is in order.

Discovery and ESI

- During the initial discovery strategy, your attorney must make certain that she considers not only techniques for recovering ESI, but also the types of ESI that are discoverable and the individuals who are responsible for that data. Discoverable ESI falls into three categories: (1) types of ESI based on the configuration of the computer system, (2) types of ESI based on the nature of the evidence itself, and (3) types of ESI based on its storage status. - Your supervising attorney must remember that her client may have to furnish this information to the opposing party, which means that she will have to develop a discovery plan that includes all three categories of ESI, as well as the people responsible for managing that ESI. - The first type of ESI that should be included in a preliminary discovery plan is the configuration of the opposing party's computer system. This involves an understanding of the number and types of computers that are used in the party's ordinary business routine. During the planning stage, it is important to remember that the term computer includes desktop PCs, laptops, notebooks, mobile phones, personal digital assistants (PDAs), digital recorders, GPS units, smartphones, tablet computers, scanners, fax machines, wireless reading devices (WRDs), home computers that are part of a network, as well as apps and widgets that are located on mobile phones. It would also be helpful to know about any network systems that are located within the party's operation, as well as the number and location of all workstations and all network servers. - Another difficulty associated with the configuration of a party's computer system is the problem of ownership. Recently, it has become more and more acceptable, and in some firms even required, for staff members to use their own tablets, smartphones, and laptops at work. The trend has developed because people are so accustomed to their own machines that they are more efficient when they use the same devices on the job that they use in their personal lives. The trend makes sense and was probably inevitable as computerized devices became more compact, more user-friendly, more mobile, and more interchangeable. Companies generally handle this development in one of two ways. Some firms prefer to distribute employer-owned devices that include separate areas for the employee's personal use. Other companies permit employees to bring their own devices into the workplace. These devices are then programmed by the company's information technology (IT) department with secure work areas for e-mail, employee forms, and other work-related files - Whichever tactic is used, questions can arise during litigation as to whether such devices can legitimately be included in a discovery request. The well-prepared attorney will assume that the answer to this question is "yes" and will plan accordingly. This assumption makes sense because the opposing party will want to see all relevant work-related data regardless of who owns the device used to make or store that data. While the opposing party will generally focus on work-related data rather than personal Twitter accounts and gaming apps, such apps might be used to impeach the credibility or the reputation of a particular witness. Whatever the case, the wise attorney will develop a discovery plan that protects her own client while allowing her to search for vital ESI within the devices used by her opponent's employees, regardless of who owns those devices. - The second type of ESI that must be included in the discovery plan is based on the nature of the evidence itself. The nature of the evidence can be expressed in two ways, as substance and as entity (or object). Substance is the information contained within the documents. When most attorneys consider the process of collecting relevant computer data they inevitably focus on substance. This tendency is, of course, only natural. When an attorney thinks about a filing a plan to retrieve paper memos, letters, and reports, she is concerned with what those memos, letters, and reports say, not with the desk they are piled on. Electronic data is different. With electronic data, the entity is itself an important source of information. Thus, when creating a discovery plan, your attorney must also consider looking at the ESI as an entity. This strategy, which is called, "exploratory social network analysis," involves searching for such things as the author, the people to whom the data was sent, the number of times it was accessed, copied, sent, received, altered, forwarded, and so on. Such things as the length of time spent on certain Web sites or the names of people who are part of certain communication cliques can reconstruct the communication patterns at a client's or at an opponent's place of business. These communication patterns or "social networks," can identify the key players in an activity that lies at the heart of a lawsuit. - Looking at ESI as an entity requires that your supervising attorney examine all relevant computer-generated records. This is a big task because such records are found in e-mail files, databases, Internet records, intranet or portal records, cell phone call records, calendaring programs, GPS logs, and all other relevant data files created by spreadsheets, word processing, or any analogous program. Another way to think about ESI as an artifact is to consider it as a type of metadata. Metadata is data about data and includes such things as descriptive metadata, archival metadata, administrative metadata, structural metadata, intellectual property rights management metadata, preservation metadata, and so on. - The third type of evidence is based on the storage status of the data. Data can be considered to be active data, inactive data, backup data, extant data, residual data, legacy data, ephemeral data, or paper data. Data is considered active if it is in current use, and inactive if it is relatively up-to-date but is not used on a routine basis. In contrast, backup data is information stored as a precautionary measure. Extant data is information that is hidden in the system, generally because it has been deleted. Fragments of data left over on hard drives are referred to as residual data. Legacy data is data that may be hidden simply because it was originally recorded on what is now an outdated media format such as a floppy disk or a CD. Ephemeral data is data that was created to self-destruct after a short period of time, say in about 10 seconds or so. Unfortunately (or fortunately depending on whether your attorney is trying to protect or obtain the data) even ephemeral data can be retrieved by a really savvy IT specialist. Paper data includes any e-data that has been reduced to a hard copy for filing purposes or data that was never entered into an electronic format to begin with. (Yes, such data still exists and should not be overlooked as a source of evidence or even as a way of cleverly disguising vital evidence if your opponent happens to be obsessed with ESI, which happens today, more than you might think. See Exhibit 8-2.)

Claims of Privilege and ESI

- ESI presents a problem because of its quantity, its complexity, and the relative inexperience among attorneys who must deal with this new form of evidence. These two things—quantity and complexity—may lead to the inadvertent revelation of protected or privileged information. Rules 26(b)(5)(A), 26(b)(5)(B), 26(f)(3), and 34(b) deal with this problem. First, Rule 26(b)(5)(A) declares that when a party decides it is not going to turnover privileged evidence, that party must expressly inform the other party of the claim. The claim must indicate the evidence withheld in enough detail that the other party can do a proper assessment of the situation. - According to Rule 26(b)(5)(B), as soon as a party discovers that privileged information has been accidentally sent to another party, the first party must inform the other party of its discovery. The party with the information must then return the privileged information, destroy it, or at least hold on to it until the court can determine whether the claim of privilege is genuine. The party with the now sealed evidence can present it to the court for a ruling as to whether it rates the claimed privilege. If that party has given the information to a third party, the information must be recovered. When the information has been returned to the first party, that party must hold the information until the court decides whether it is actually privileged - Rule 26(f)(3) goes a step further by encouraging the parties to discuss the format that will be used for the delivery of ESI. Rule 26(f)(3) also implicitly connects to Rule 34(b)(1)(C), covering requests for real evidence, which permits the ESI requester to specify the format in which ESI must be delivered. Should the ESI requester forgo that opportunity, under Rule 34(b)(2)(D) the ESI retriever is allowed to indicate the format that will be used. Moreover, Rule 34(b)(2)(E) give the ESI retriever a choice of formats. The rules says that the retriever may produce the ESI either the form used in its everyday business operation or in a form that can be easily used by the other party.

Characteristics of ESI

- The proliferation of ESI in business and government has led to some critical changes in the strategies used to request, retrieve, hold, and protect ESI. Recent court decisions and the latest amendments to the Federal Rules of Civil Procedure, as well as the rules of many state courts, most of which mirror the federal rules to some extent, require that attorneys take proactive measures as early as possible in a lawsuit to make sure they do not violate their legal, ethical, and professional duties in the pursuit and protection of ESI. These proactive measures are necessary because ESI has some unique characteristics that many attorneys overlook. - First, ESI is voluminous. In a pre-ESI era lawsuit, your supervising attorney would have dealt with thousands of pages of paper documents. Today, that same attorney must handle hundreds of thousands of pages of e-mail correspondence, spreadsheets, databases, backup tapes, voice mail, text messages, Internet use records, instant messages, Web-based discussions, Web-based bulletin-board postings, tweets, blogs, photos, Instagrams, pop-ups, Internet search histories, statistical data, GPS logs, and so on. To make matters even worse, as noted previously, ESI includes not only the data itself but also a level of metadata that records "data about the data." - Second, the discovery of ESI is difficult because it is stored in an assortment of formats and can, therefore, be delivered in those different formats, some of which may not be compatible with the requesting party's computer system. Although the use of different formats will not eliminate ESI from the discovery process, it can lead to costly delays. Third, unlike paper data, which can only be destroyed by the intervention of an individual, some ESI is routinely deleted by the computer system itself to make room for new data. Thus, a party may inadvertently erase relevant evidence simply by allowing a company's routine deletion procedures to continue unabated, despite pending litigation - On the other hand, and this is the fourth point, most bits of ESI never really go away despite the fact that a system reports the deletion of that information. Therefore, an attorney should never announce that a certain report, a particular spreadsheet, or a series of e-mail correspondence has been erased unless she has already checked with IT personnel to make certain that the ESI is really gone for good. This advice is especially important when a client uses social network apps, such as Snapchat, that are designed to remove all transmitted data, especially photos, within a very short time. Despite assurances of privacy, app providers do not guarantee that all data is erased, and app users can never be certain that their pictures have not been photographed quickly by the receiver using a camera or a second mobile. Moreover, a really talented and resourceful IT expert can probably find a way to retrieve even the most protected data. - Third, the discovery of ESI is complicated because technology changes with great speed. Rapid change creates hidden and unexpected ways to generate, store, erase, and retrieve ESI, catching even the most conscientious practitioner by surprise. For example, in today's workplace desktops and BlackBerrys are being replaced by laptops, smartphones, and tablets, all of which are more practical, more portable, and more accessible than their rapidly fading predecessors. - Some of the newest tablets are equipped with devices that permit the user to take notes and create documents with a high-tech stylus that can be used with the ease of a real pen and that, thus, eliminates many of the problems that have been associated with such devices in the past. - Consequently, modern attorneys must remember to include such devices in discovery requests. Moreover, and more to the point, attorneys must also remember that their own clients must be warned that the data stored on such devices can be used as evidence. - Fourth, many practitioners are now exploiting the huge amount of ESI that is stored on mobile applications (apps) and widgets. Many people use apps to record video images, to participate in games, to take photographs, to play tunes, to read e-books, and to count calories. However, many "app addicts" do not realize that, as they habitually access their ever-present apps, the app platform providers are collecting, storing, sharing, and distributing ESI about the users in ways that far exceed the data collected on desktops and other more conventional electronic devices. - This revelation is good news for ESI requesters, who can find ESI that was previously unavailable, but bad news for ESI retrievers, who suddenly discover that their clients have unknowingly accumulated volumes of damaging evidence on their innocent-looking mobile phones. Apps record and store sensitive ESI such as text messages, e-mail messages, photos, and videos. Other bits of sensitive ESI include phone logs, contact lists, date book information, bill payment histories, credit histories, health data, medical data, dental information, app use records, and Web-browsing logs. Some users may even discover that their every move has been recorded and stored by their GPS and WiFi geo-locator apps.

Electronic Discovery Tools

- Electronic discovery, e-discovery, and digital discovery are all terms used to describe the discovery of electronically stored information (ESI). No matter what it is called, however, e-discovery has become an inescapable part of the routine in most law firms today. Personal computers, which store data, create forms, and send e-mail, are as common in law firms today as the typewriter was in the past. Moreover, the use of audio- and videotaping as well as telephone, Web, and videoconferencing is becoming commonplace in firms across the country. In addition, many law firms now take advantage of the convenient and economical resources available on the Internet. E-discovery involves the use of a wide variety of electronic resources to conduct discovery. The use of electronic resources can make the paralegal's work more efficient and economical or more expensive and time consuming. Consequently, electronic discovery tools must be used properly when your attorney draws up her discovery plan. - As we investigate each discovery technique in the chapters that follow, we will consider the available electronic versions of these techniques. For instance, in Chapter 9 on depositions, we will examine not only the use of traditional in-person depositions, but also the application of electronic techniques such as web conferencing to conduct long-distance depositions in ways that are efficient and economical, and in Chapter 10 on interrogatories, we will look at the use of interrogatories as an aid in structuring the discovery of electronic evidence. Nevertheless, at this stage in the discovery process your supervising attorney may want to consider the use of some electronic discovery devices to conduct informal discovery. - The advent of e-discovery means that attorneys and paralegals must remain current with all amendments to the Federal Rules of Civil Procedure concerning discovery and ESI. Accordingly, we find that (1) the rules now require attorneys to develop discovery plans, including ESI issues, early in the litigation process; (2) the rules have been changed to deal specifically with forms of ESI production; (3) the rules now handle special problems involving matters of privilege; (4) the rules have been changed to facilitate the discovery of hard-to-find ESI and to apportion the money spent on such activities; (5) the rules now hand out sanctions against those who do not cooperate with discovery but limit those sanctions when the loss of ESI is unavoidable; and (6) the rules now adjust several time limits involved in discovery so that each time period is a multiple of seven in order to accommodate the realities of the working week. - The rules that were amended to accomplish these goals include Civil Rules 16, 26, 27, 32, 33, 34, 37, and 45 and Rules 502 and 702 of the Federal Rules of Evidence. As we continue in this chapter and those that follow, we will cover each of these rules and, at that time and place, explain the nature and the effect of each amendment.

Limits on Discovery

- Even though the scope of discovery is very extensive, it is not without limitations. Discovery, including matters that must be disclosed under Rule 26, is limited by several privileges. These include the attorney-client privilege, the work product privilege, the common interest privilege, the medical privilege, the confessor-penitent privilege, and the Fifth Amendment privilege against self-incrimination. Limits are also placed on access to expert testimony. In addition, the parties can initiate confidentiality agreements or ask the court to issue protective orders.

Protection of Expert Testimony

- Expert testimony is frequently indispensable in a lawsuit. In the Raphael case, for example, the jury would have a difficult time determining whether the abstracts and grant proposals written by Phipps include fabricated or falsified evidence without the use of expert testimony. Under Rule 26(a)(2) of the Federal Rules of Civil Procedure, parties are required to disclose the name of any expert who will testify at trial. Along with the name, information relating to the expert's opinion, report, and qualifications also must be provided. This information must be disclosed without the necessity of a formal discovery request. If the expert witness is to be compensated for his or her testimony or for a study undertaken for the case, that must be revealed, as well as a list of other cases in which the witness has served as an expert, either by deposition or at trial, within the previous four years.

Orders to Compel Discovery

- If one of the parties to a lawsuit refuses to comply with a discovery request, the other party must move to force compliance. Under Rule 37 of the Federal Rules of Civil Procedure, the party seeking cooperation must file a motion with the court asking the judge to compel discovery. The judge will then decide whether to grant the motion. It is possible for the noncomplying party to have a legally sufficient reason for denying the discovery request. For example, in this chapter's Raphael case, Jonas Halbert Northern University might argue that a request for a list of all grants written by all research fellows over the last five years falls outside the scope of discovery; that is, the list is not relevant to the claims or defenses of a party, and such a list could not lead to admissible evidence. If the objection is valid, the judge will deny the motion to compel discovery. If the objection is not valid, however, the judge will grant the motion and issue an order compelling cooperation with the discovery process. In the case of JHNU's objection, the judge would likely see the objection as valid and would, therefore, deny the motion to compel JHNU's cooperation. Any motion to compel discovery, disclosure, or amend a previous response must be accompanied by a certification that the moving party has in good faith conferred or attempted to confer with the other party in an attempt to resolve the matter without court action.

Amount of Time

- If time is a more critical element than money, the attorney might make an entirely different decision in choosing a method of discovery. Under the pressure of time, having the party sit for a deposition would be much more advantageous than sending interrogatories and waiting for written responses. In addition, the Federal Rules of Civil Procedure allow parties at least 30 days to respond to a set of interrogatories and most states allow similar lengths of time. Moreover, although a court can easily shorten a time limit, the same court might also extend that time, causing further delay. The parties can also agree to extend or shorten the time as long as any agreement to do so is put in written form.

Sanctions against Noncomplying Parties

- If, after an order compelling cooperation is issued, a party still refuses to comply, the court can levy certain sanctions against the noncomplying party. Under Rule 37 of the Federal Rules of Civil Procedure, the sanctions include, but are not limited to, a dismissal of the action; the granting of a default judgment; the granting of reasonable expenses, including attorney fees, caused by the failure to cooperate; and a contempt-of-court ruling against the noncomplying party. Sanctions are permitted against either the attorney or the client, or both. This possibility should be considered when drafting a discovery plan. Discovery is an effective and necessary litigation tool. Abuse of discovery results in a protracted and complicated lawsuit.

Cooperating With Discovery

- It is to everyone's benefit for the discovery process to run as smoothly as possible. For this reason, most parties cooperate freely with discovery requests. However, there are times when parties refuse to cooperate. The rules of civil procedure provide methods for compelling discovery and sanctions for those who refuse to cooperate.

Voluntary Cooperation

- Most of the time, attorneys involved in litigation will find that the other attorney and the other party cooperate with the discovery process. Parties cooperate generally for several reasons, all of which are based on enlightened self-interest. First, under the principle of reciprocity, each side knows that any attempt to disrupt the discovery process may result in a similar attempt by the other side. Second, each side knows that the court disapproves of any attempt to interfere with discovery. Finally, the Federal Rules of Civil Procedure provide severe sanctions for those parties who refuse to obey discovery orders made by the court. For these reasons, if one side resists the discovery process or any part of that process, the other side should make inquiries about the reason for such resistance. Often such problems can be resolved informally. For example, a party may resist sitting for a deposition because it is scheduled at an inconvenient time or place. A minor problem like this can be solved by explaining the importance of the discovery process to the party and rescheduling the deposition for a more acceptable time and place.

Confidentiality Agreements and Protective Orders

- Often, a lawsuit will involve matters that one party wants to keep as secret as possible. For instance, in a trade secrets case, the owner of the trade secret would want to protect that secret by limiting the people who would have access to the secret, or the circumstances under which it is to be revealed. For example, in the Raphael case, since the lawsuit involves research performed under the auspices of Jonas Halbert Northern University, the institution may wish to protect certain innovative research techniques or new state-of-the-art research equipment by limiting access to that information to a few select individuals. Such limitations can be imposed voluntarily through a confidentiality agreement or by court decree through a protective order. Confidentiality agreements and protective orders cover a wide spectrum. Some agreements and orders completely prevent all discovery of the secret material. Others designate a particular place and time for revelation of the protected information. Still others might indicate that only certain named parties can be present when the confidential matter is revealed. It is even possible for the agreement or order to stipulate that the information will be enclosed in sealed envelopes to be opened only at the judge's direction. Documents that fall into the category of "confidential" should be stamped with this designation prior to their production or disclosure to the other side. Protective orders are permitted under Rule 26(c) of the Federal Rules of Civil Procedure. It is within the power of the court to cancel or alter a protective order should the need arise to do so. Exhibit 8-3 shows a sample protective order.

Web Conferences

- One e-discovery tool that your supervising attorney might want to consider during informal discovery is the Web conference (sometimes referred to as a webchat, a webinar, an online chat, or an online workshop). A Web conference permits individuals at separate locations to meet online via the Internet using personal computers. As long as the appropriate software has been downloaded to each computer and provided that each computer is also equipped with a webcam, several people can talk together while viewing one another on a split screen on their monitors. The Web conference can involve preliminary discussions among attorneys and clients and may include expert witnesses, thus reducing travel expenses. A videoconference represents another way to permit several individuals at widely separated geographical locations to discuss the planning of the case. (Note: Today, most recordings are made using digital equipment, rather than video cameras, videotapes, and VHS cassettes, all of which have become nearly obsolete. Nevertheless, terms like "video," "taping," and "tapes" to refer to the recording process are likely to stay in the vocabulary of the legal profession for some time to come, despite their technical inaccuracy. This habit is not unlike the continued use of a word such as "typing," which is inaccurate but which is still used instinctively by most people. Consequently, we will continue to use those "taping" terms here.) The video setup often still requires the use of television cameras, microphones, monitors, and a speaker system at each location. However, in some cases, long-distance conferences can be conducted using only handheld mobile devices.

ESI and Computer Forensics

- One of the jobs of the litigation response team is to preserve the chain of custody for ESI. The chain of custody is a precise record of who received, handled, evaluated, and safeguarded the evidence in a legal proceeding. The object of creating a chain of custody is to guarantee the authenticity of the evidence by ensuing that no one has a chance to tamper with that evidence in anyway. Until recently, the chain of custody process was important only within the criminal system. Now, however, with the increased importance of ESI in civil litigation, preserving the integrity of the chain of custody has become essential. As is the case with most issues involving ESI, the attorney in a case should defer to the IT experts in the chain of evidence process. Moreover, it is best to engage an outside firm that is well versed in computer forensics. - Computer forensics, also known as e-forensics or cyber-forensics, is a strategy that employs certain processes to retrieve, examine, analyze, and authenticate ESI. The process uses the chain of custody strategy to make certain that computer use and computer records are not altered, destroyed, or hidden. E-forensics is especially critical when the ESI in a case is related to exploring the residual data, rebuilding records that track computer use, and determining the technical characteristics of ESI. The processes involved in e-forensics require highly specialized skills that are not within the expertise of most IT staff members

ESI and Social Media

- One of the most important jobs of the litigation response team is to educate the client about unexpected ESI pitfalls. One of these unanticipated danger areas today is the proliferation of social media sites. Social media sites include a wide variety of communication and networking spots such as Facebook, LinkedIn, Twitter, YouTube, and MySpace, among many others. The litigation team must make certain that everyone involved in the lawsuit understands that information posted on such sites might be discoverable. The good news here is that, during discovery, your attorney will be able to mine the social media sites of the opposing party as she searches for relevant, admissible evidence. The bad news is that the other side will conduct the same kind of mining operation into her client's sites. Of course, your attorney might also take this opportunity to examine her client's social media sites, in case there is evidence on those sites that can somehow help build her client's case.

Recent ESI Amendments

- One of the primary reasons the Federal Rules were amended was to deal with difficulties caused by the amount of ESI in business and government today. Rule 26(a)(1)(A) compels the parties in a lawsuit to update one another promptly about those individuals who possess discoverable evidence. Today this list of individuals will likely include the names of employees in the client's IT department. - Following this example, Rule 26(a)(1)(A) directs that the parties in a lawsuit, without waiting for a request or a court order, provide one another with copies of all discoverable information, or at least a description of that information, including ESI. This, however, does not mean that all requests for ESI will evaporate. Parties will still find themselves on the sending and receiving end of ESI requests. For this reason it is good to distinguish between the party asking for and obtaining the data, the ESI requester, and the party from whom the data is asked and obtained, the ESI retriever. - The Federal Rules have altered some of the time periods involved in discovery in order to parallel the counting provisions established in Rule 6 of the Federal Rules of Civil Procedure, which demand that all days be counted in determining time limits, even Saturdays, Sundays, and legal holidays. To ensure that most time limits will end on a weekday, discovery time limits are now listed in multiples of seven. For example, Rule 27(a)(2) was amended to extend the time limit for service of notice from 20 to 21 days before the hearing date. Similarly, Rule 32(a)(5) was changed, altering the time period that protects those who challenge the deposition itself and those who object to the location of the deposition. The time limit was extended from 11 to 14 days. The rule now reads, "A deposition must not be used against a party who, having received less than 14 days' notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken." Finally, Rule 32(d)(3)(C) was altered to lengthen the time period for objections to written questions from five to seven days.

Cloud Storage, ESI Owners, and ESI Centers

- Perhaps the most perplexing task facing an ESI producer today is where to store the vast amount of data that emerges from the process of working with a computer. One increasingly popular strategy is to involve the cloud storage process. Cloud storage is a technique for depositing and protecting ESI, which circumvents the need to store data on hard drives and flash drives and passes that responsibility on to a third party, the ESI center. The ESI center receives, organizes, and stores the ESI on a distant database, making the data available to the ESI owner (aka the ESI depositor) through the Internet. Of course, the cloud storage process is not without difficulties. Ownership problems occur, for example, when the ESI owner undergoes a transition such as bankruptcy that places the rights to the ESI in question. Such problems can be avoided if the parties draw up an initial agreement outlining what to do when such contingencies occur. ESI owners might also be uneasy about the dependability of an ESI center. To minimize such fears the ESI owner can insist upon an agreement that permits the owner to access the data at any time and under any circumstances within the limits of the ESI center's capabilities. Security may also cause concern for the ESI owner who wants assurances that any ESI situated in a cloud will be safe from prying eyes. The safety of the ESI can generally be enhanced with various encryption techniques, a list of authorized users, and an authentication process. It is also best to use an ESI center with redundancy services that permit the ESI to be stored on several servers with separate power sources, thus promising the preservation of stored ESI should the center be victimized by a thief, a hacker, or a power failure.

The Pretrial Conference under Rule 16

- Rule 16 of the Federal Rules of Civil Procedure allows the court to direct the parties to come to the court to consider various pretrial matters, including the discovery process. Such a meeting is called a pretrial conference. Often such a conference takes place after the court has received a discovery plan from the parties. Under Rule 26(f), the court may also be permitted to waive the written report required under Rule 26, provided the parties agree to file an oral report at the conference held under Rule 16. The court reviews the plan and discusses the matter with the attorneys, and then it issues orders concerning any aspect of discovery or disclosure, including scheduling time limits in which to complete discovery.

Excluded Categories

- Rule 26(a)(1)(B) excludes certain types of proceedings from these initial discovery disclosure requirements. These exclusions include the following: 1. any action for review on an administrative record; 2. forfeiture action in rem arising from a federal statute; 3. a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; 4. an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; 5. an action to enforce or quash an administrative summons or subpoena; 6. an action by the United States to recover benefit payments; 7. an action by the United States to collect on a student loan guaranteed by the United States; 8. a proceeding ancillary to proceedings in another court; and 9. an action to enforce an arbitration award. - These proceedings have been explicitly excluded from the initial discovery disclosure requirements outlined in Rule 26, primarily because in many, perhaps most, situations these proceedings involve a minimum amount of discovery.

Two Levels of ESI

- Rule 26(b)(2)(B) creates two levels of ESI. The first level of ESI includes information that is reasonably available. Reasonably accessible ESI includes data that can be retrieved without unwarranted difficulty and without unfair cost. Reasonably accessible data must be surrendered to the other party without waiting for an order from the court and without waiting for a request from the other party - The second level of ESI is information that is not reasonably available. Data is classified as not reasonably accessible ESI if retrieving that data would require unfair cost or unwarranted difficulties in the retrieval process. Rule 26(b)(2)(B) says that if the ESI requester asks for a motion to compel the discovery of second-level evidence, or if the ESI retriever asks for a protective order to shield that evidence, the ESI retriever must demonstrate to the court that the evidence is "not reasonably accessible because of undue burden or cost." - However, to succeed in any attempt to protect this type of evidence, the ESI retriever can no longer simply state that such a difficulty exists. Instead, when the expense in recovering the ESI is overly burdensome to the retriever, that retriever must demonstrate the existence of that burden to the court's satisfaction. In addition, the ESI retriever must also show that the materials sought are neither legal documents nor business related records. Also ESI retrievers cannot follow an expensive retention policy and then "innocently" assert that it would be "unduly burdensome" to produce the data requested. Finally, and perhaps most importantly, none of this will relieve any party of his or her underlying preservation duty. Such duties continue to bind parties in common law and in statutory law. The ESI retriever may still be compelled to deliver the information, if the other party demonstrates to the court's satisfaction that there is a good reason for the information to be produced - Labeling ESI as inaccessible is a tricky proposition because some ESI that appears to be deleted and, therefore, reasonably inaccessible, may actually be accessible by knowledgeable IT experts. ESI retrievers must also remember that, even if the ESI really is difficult to retrieve, they may still be responsible for protecting that evidence either under statutory law or according to common law principles. Because the problems surrounding this issue are so novel and so uncertain, expect your supervising attorney to encourage her client to make an agreement about these matters with the other parties as soon as practical.

The Fifth Amendment Privilege against Self-Incrimination

- The Fifth Amendment to the U.S. Constitution states that "No person ... shall be compelled in a criminal case to be a witness against himself." This Constitutional right is referred to as the Fifth Amendment privilege against self-incrimination. Because the privilege is specifically aimed at self-testimony in a criminal case, it is usually not available as a privilege in a civil lawsuit if the only object of the suit is to seek compensatory damages. Some courts have held, however, that if a civil lawsuit seeks to protect the public, the privilege may be successfully invoked. For example, if a civil suit is brought by a private party under federal antitrust law, the privilege may be successfully raised. This is because the purpose of antitrust law, like the purpose of criminal law, is to protect the public at large. Antitrust laws protect the public by imposing triple damages and thus discouraging antitrust activity. Furthermore, if a government agency is the plaintiff in the suit, it is possible to invoke the Fifth Amendment privilege because such agencies are, by definition, designed to protect the public interests. For example, in the Raphael case, since the case was brought by the NSF to protect the public's interest in the legitimate spending of federal tax dollars, your supervising attorney may be able to successfully argue that Dr. Raphael is protected by the Fifth Amendment Privilege against self-incrimination. Moreover, a suit involving a government agency such as the NSF as the plaintiff is very similar in character to a criminal prosecution, which is also brought by the government. Similarly, if a witness, such as Dr. Raphael, could demonstrate that responding to a particular discovery request could expose him to a potential criminal prosecution, then the privilege may be successfully invoked.

Attorney-Client Privilege

- The attorney-client privilege prevents the forced disclosure of written or oral communications between an attorney and a client or a prospective client. For a communication to be protected by the privilege, it must be made between the client and the attorney or the attorney's subordinate. This means that the privilege extends to communications made to the paralegal when the paralegal is acting as an agent of the attorney. The communication also must be made within the context of the attorney-client relationship. In other words, information revealed while seeking legal advice would be protected by the privilege, but statements made at a social gathering during polite conversation would not. The privilege belongs to the client, not the attorney. For example, in the Raphael case, if Dr. Raphael has no objection to the revelation of the contents of a discussion he had with your supervising attorney, then the attorney could not assert the privilege herself. Certainly, she could advise Dr. Raphael to assert the privilege. However, the client, Dr. Raphael makes the final decision. - The attorney-client privilege may be lost or waived by the client if the client does not intend the communication to be confidential, discloses the communication to others, or refuses to assert the privilege. Also, if a third party who is not related to the client is present during an attorney-client discussion, the privilege has been waived by the client. Naturally, such a waiver would not occur if the third party who is present is another attorney in the firm, a paralegal employed by the firm, or a legal secretary who works for the attorney. Thus, if you were asked to be present during a meeting between your supervising attorney and Dr. Raphael, he would not have waived his attorney-client privilege. - The fact that many law firms today are involved in multi-jurisdictional (MJD) cases increases the danger of inadvertently losing the protection granted by the attorney-client privilege. The threat arises because significant differences exist in the way that the law is practiced in the United States and how it is practiced in other countries. These differences can involve (1) an attorney's status, (2) the nature of a waiver, and (3) the loyalty of an attorney. The status of an attorney in the United States is rarely, if ever, at issue. In the United States, terms such as attorney, lawyer, and legal counsel are used consistently from state to state to refer to an individual admitted to the bar and thus legally empowered to practice law. This consistency is not necessarily followed in foreign jurisdictions. Thus, in Europe, for instance, an individual who is identified as "in-house counsel" or as the "in-house lawyer" may not be an attorney at all but may, instead, be a layperson, who has been taught to run a corporation's legal department. Communicating with this "in-house lawyer" about a case may cause the protection of the attorney-client privilege to evaporate - Similarly, in some foreign jurisdictions the waiver of the privilege is handled differently than it is in the United States. In some foreign jurisdictions, for instance, a client is permitted to waive the privilege in one instance without surrendering the entire scope of the privilege. This stipulation is not followed in the United States where, under the traditional rule, a single instance of waiver will eliminate the entire privilege - Finally, the question of an attorney's loyalty may become a problem in MJD cases. In the United States loyalty is rarely an issue. It is clear that an attorney must, above all, be loyal to his or her client. This level of loyalty is not always the norm in foreign jurisdictions. For instance, until a short time ago, attorneys in China were, first and foremost, governmental agents. An American attorney working with an attorney in China on an MJD case, who did not realize that his or her colleague owed an uncompromising loyalty to the state, could innocently reveal something that would unintentionally destroy the attorney-client privilege. - The unintentional waiver of the attorney-client privilege in an MJD case is only one situation in which an inadvertent waiver may occur. In a large and complex case, privileged documents may be frequently disclosed accidentally. The chance that an attorney will involuntarily waive the privilege seems to rise exponentially as the use of ESI increases. The sheer volume of ESI makes it impossible for any attorney to know what is contained in every document sent to the other side in a discovery process. Such disclosures can have extremely serious results. To avoid this problem, it is possible to enter an agreement with opposing counsel that the inadvertent production or disclosure of privileged information will not result in waiver of the privilege. This agreement may be incorporated in the protective order discussed later in this chapter.

Common Interest Privilege

- The common interest privilege is designed to protect any communication that takes place between attorneys for different clients when those clients share a common interest. The privilege actually preserves the attorney-client privilege and the work product privilege when information is exchanged among attorneys whose clients share such a common interest. The privilege protects oral statements, written notes, and printed memos that pass among such attorneys. The privilege can be invoked by attorneys representing either plaintiffs or defendants and can be asserted in both civil and criminal procedures. As a paralegal, your communication with another attorney or with the client of another attorney would also be protected if that client shared a common interest with the client represented by your attorney. - In order to succeed in raising the privilege of common interest, attorneys must demonstrate that the communication occurred because of an actual or a probable legal or other adversarial process. In addition, the attorney must show that his client does indeed share a common interest with the clients represented by the other attorneys involved in the action. For example, in the Raphael case, if Dr. Raphael, Mr. Phipps, and Jonas Halbert Northern University were to be represented by different attorneys, those attorneys could use the privilege to protect any communication made between them while planning a common defense for their clients. Finally, the communication must be made in a way that preserves the privileged nature of its content in relation to any adverse parties.

Developments Concerning Discovery

- The courts have long encouraged parties to cooperate with one another in the discovery process in order to promote full disclosure of relevant facts before trial. Regrettably, attorneys often ignore the spirit of this law and engage in behavior that, although not a technical violation of the law, defeats the purpose of discovery. The Federal Rules of Civil Procedure are designed to facilitate discovery and discourage any attempt to circumvent its true purpose. In particular, Rule 26 of the Federal Rules requires the parties to disclose certain information to the other party without the necessity of formal discovery requests. The rules also limit the formal discovery methods that are available.

Electronically Stored Information

- The discovery process has changed over the last few years as judges, attorneys, and paralegals have adjusted to computer technology. Although this chapter will concentrate on the many problems associated with the entry of electronics into the law, we must not overlook the many benefits that have emerged with the computer revolution. These benefits include the ability to maintain close communication links among attorneys, paralegals, clients, witnesses, and experts; the power to instantaneously access cases, statutes, regulations, and pleadings on laptops, mobile phones, and tablets; and the capacity to gather, catalogue, and store hundreds of files on devices that can be carried in an attorney's briefcase or a paralegal's backpack. As we move through this chapter we should remember the words of that Elizabethan prophet, Francis Bacon, who said quite unapologetically that science and technology must be dedicated to the "endowment of human life with new inventions and riches." - At the dawn of the 21st century, most legal professionals were content to treat electronic data in much the same way that they treated paper documents. They simply revised the scope of terms like "data compilations" and "documents" to include this new form of evidence. Business, they believed, could go on as usual. Experience has shown this position was based on wishful thinking. Computerized data, which is now referred to in the Federal Rules of Civil Procedure as electronically stored information, or ESI, had to be covered by special rules because this new form of evidence requires lawyers, paralegals, judges, and the even the parties involved in contemporary lawsuits to be more aware of the need to act in a manner that is timely, thorough, and prompt. One problem is that electronically stored evidence multiplies so rapidly and is configured in so many different formats that even the most skilled practitioner can get lost trying to compile a basic discovery plan. Other problems arise because computers duplicate and preserve much of the data filed in their memories, yet they do not always have a consistent and predictable method for keeping track of that data. Additional problems arise when practitioners fail to search ESI adequately and thus retrieve and produce ESI that should have been protected by one of the many privileges provided by the law. The Federal Rules of Civil Procedure have been amended to deal with the problems caused by the proliferation of ESI. Most of these amendments have had an impact on the nature and conduct of discovery. - Paralegals, perhaps more than anyone else in the legal profession, must become as familiar as possible with these new amendments because the task of organizing and tracking ESI often becomes the responsibility of the paralegal. Fortunately, as many as state court systems have added ESI amendments to their rules that closely parallel the 2006 ESI amendments to the Federal Rules of Civil Procedure. This is good news for paralegals on two fronts. First, the fact that so many states have adopted the federal rules testifies to the effectiveness of those rules. Second, from a very practical perspective, the similarities that exist among federal and state rules greatly reduce a paralegal's learning curve when moving between the two court systems. Of course, the federal and state rules are rarely identical and some states have developed rules that are peculiar to their own jurisdictions, and so the paralegal cannot ignore the need to learn state rules. Moreover, a number of states have still elected to avoid the entire issue and are yet to make any rules that address ESI.

Federal Rules of Evidence—Rule 502

- The extensive use of ESI today sometimes contributes to the accidental waiver of the attorney-client privilege or the work product privilege (or both), as well as the disclosure of privileged material covered under either or both of the two protections. Recall that, under the traditional rule, the loss of the privilege in a single incident generally means the loss of the privilege for all evidence related to the topic of the released and unprotected item. The strict parameters of the traditional rule led many attorneys into an inefficient and costly campaign designed to scrutinize every scrap of evidence in a case. Then, in a classic case of "overkill," the attorney would throw the blanket of protection over every piece of evidence imaginable, even those with only an outside chance of actually needing the protection requested. - To combat this situation, Congress added Rule 502 to the Federal Rules of Evidence. Under Rule 502(b), the unintentional release of evidence protected by either the attorney-client privilege or the work product privilege will not be considered an overall waiver, provided that the initial disclosure was genuinely accidental, and resulted despite the fact that the holder of the privilege "took reasonable steps" to protect the evidence. Additionally, the holder of the privilege or protection must have made a reasonable attempt to correct the mistaken disclosure. This attempt must include the use of Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, which outlines what parties are supposed to do when they discover that privileged information has been accidentally released. - The new rule also covers the intentional waiver of either the attorney-client or work product privilege. According to Rule 502(a), such a waiver will affect the communication or the work produced intentionally waived and any additional communications or products involving the same subject matter, provided that, in fairness, the two items can be connected to one another. In addition, this type of waiver applies to both federal and state cases. Rule 502(c) also notes that, in a state case, if a disclosure is not subject to a state court order, then, "the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred." - Rule 502(d) adds a further safeguard by providing that, when the privilege or protection is preserved under a court order in one federal court, it will be preserved by that order in any other federal court or in any state court. Rule 502(e) notes that an agreement related to a disclosure in federal court can be made binding on third parties, if the court so orders. Rule 502(f) adds the following provision: "Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision." - Rule 502(g) defines "attorney-client privilege" and "work product protection." The rule states that the phrase "'attorney-client privilege' means the protection that applicable law provides for confidential attorney-client communications." Similarly, it states that the term "'work-product privilege' means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial." There is every reason to believe that terms such as communications and tangible material include ESI. - Finally, in a very generous interpretation of Rule 502 (b), recent case law has indicated that the federal courts have the power to order the parties in a lawsuit to engage in a protective agreement, such as a claw back or a quick peek agreement, even when one or more of the parties has refused to do so. In other words, the court can order the revelation of documents protected under the attorney-client privilege or the work product privilege while, at the same time, ruling that the revelation of those documents does not represent the waiver of the entire privilege. Whether this wide interpretation of Rule 502 (b) will be followed by other courts in the future is problematic at this time.

Informal Discovery

- The fact that formal discovery is an important part of the pretrial process does not mean that the informal process of uncovering information and evidence can be overlooked. Often a great deal of information can be gathered before the formal discovery process begins. In fact, the more information that can be collected at this time, the more efficient and economical the actual discovery process will become. For instance, it is often advisable for the attorney or the paralegal to visit any physical scene that is critical to the lawsuit. Thus, in the Raphael case, your attorney may decide to visit the offices and laboratories at the university to observe the environment in which Raphael and Phipps worked and to determine what additional witnesses might be available to testify about the operation of the department and the relationship between the two principal subjects of the lawsuit. At that time, the attorney or the paralegal may also want to call on witnesses to see whether they can provide any additional information about the case. - Web sites and databases can be explored at this stage in the informal discovery process too. For example, in the Raphael case, your supervising attorney may decide to gather information about the filing, accounting, and reporting systems used at JHNU to track NSF funds and to examine any computerized systems used to preserve evidence as it is used in the writing of journal abstracts and grant proposals. The paralegal's role can be very important during the informal stage of discovery because he or she can do much of the legwork involved in the process, thus saving time for the supervising attorney who can handle other matters that require her presence.

Disadvantages and Advantages to Clawback Agreements

- The fundamental disadvantage associated with clawback agreements is that they run counter to the general policy of discovery. Discovery is supposed to be open, liberal, efficient, economical, easy to manage, and as free from unwarranted protection measures as possible. In contrast, clawback agreements allow the parties to delay the discovery process, to assert a privilege after that privilege has been waived, and to release evidence without making a properly attentive search of that evidence. The net effect of a clawback agreement may, therefore, be to slow down the discovery process. Moreover, some legal experts argue, rather convincingly, that substantive law still controls any clawback or nonwaiver agreement reached by the parties - The main advantage to the clawback agreement has been provided by Rule 502 to the Federal Rules of Evidence. Rule 502 seems to have made all nonwaiver agreements including clawback agreements controlling whenever they are part of an order issued by a federal court. The rule also attempts to make these agreements enforceable in state courts. The future of clawback agreements under Rule 502 depends on whether the federal courts have the constitutional authority to control the state courts in this manner

The Scope of Discovery

- The scope of discovery refers to the amount and type of evidence that can be sought during the discovery process. The scope of discovery is vast compared to that which can be introduced at trial. Nevertheless, the evidence sought during discovery must be relevant to the claims or defenses in the case. Evidence is considered relevant if it tends to prove or to disprove facts that are necessary to determine the final outcome of the case. However, under Rule 26 of the Federal Rules of Civil Procedure, the evidence sought during discovery need not be admissible at the time of the trial, as long as it is reasonably calculated to lead to the discovery of evidence that will be admissible at trial. For example, most hearsay evidence is not admissible at trial. This ban against hearsay evidence means that in most situations a witness at trial cannot testify about the truth of what she heard someone else say. For example, in the Raphael case, it would be hearsay to try to prove that Phipps falsified the evidence used in a grant proposal by allowing Dr. Nina Bauer to testify that Dr. Anthony O'Bryan told her of this. However, the statement by Dr. Bauer would be within the scope of discovery because it could lead to admissible evidence, namely, the testimony of Dr. O'Bryan who actually saw Phipps falsify the data in the proposal.

Work Product Privilege

- The work product privilege, which is also referred to as the litigation privilege, prevents the opposing party in a lawsuit from using the discovery process to obtain letters, memos, documents, records, and other tangible items that have been produced in anticipation of litigation or that have been prepared for the trial itself. If, for instance, in the Raphael case, your attorney were to take notes during her interview with Dr. Raphael, those notes would be considered work product and would, therefore, be protected by the litigation privilege. - One problem with the work product privilege is determining which documents actually were prepared in anticipation of litigation. For example, in most hospitals it is common practice for health care professionals to make out "incident reports" when an error has been made. Thus, a nurse who accidentally gives a patient the wrong medication would have to fill out one of these reports. If the patient became ill as a result of that error and litigation resulted, the hospital attorney would argue that the incident report was prepared in anticipation of litigation, whereas the patient's attorney would maintain that it was not. The judge would determine whether the incident report is covered by the work product privilege. - Another problem with the work product privilege is that it is not an absolute privilege. Under Rule 26(b)(3) of the Federal Rules, the litigation privilege may be overridden by showing that the party seeking discovery has a substantial need for the documents or materials for the preparation of her case and that she cannot, without undue hardship, obtain the equivalent of that material by any other means. Most courts continue to provide protection for the portion of work product that consists of "mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representatives concerning the litigation." - A third problem with the litigation privilege can surface in MJD cases. In some foreign jurisdictions, especially in Europe, the work product privilege may extend only until the end of the present case. This limit can cause problems for the unwary American attorney who is involved in a related case with the same clients. Consequently, it is always wise to double check on the duration and the nature of the coverage of the litigation privilege in every jurisdiction in which your supervising attorney is involved. - Amendments to the Federal Rules of Civil Procedure have also clarified the work product privilege in relation to expert testimony. Under the old rule, when an expert prepared a draft opinion for an attorney in anticipation of trial, that draft was subject to discovery. The same would have been true when such drafts were communicated using e-mail or fax machines. The danger of having such drafts subject to discovery led attorneys and experts to engage in convoluted, complicated, and expensive schemes to guarantee that such drafts were not discoverable. Some law firms even went so far as to hire two different experts, one to render advice and one to actually appear in court. The objective here was to gain information from the advising expert while preserving the protection for the attesting consultant. - In the alternative, an attorney might also seek to shield such drafts and other preliminary messages by obtaining protection agreements or court ordered protection declarations. All of these measures involved time-consuming and expensive procedures, which was exactly what the new rules were supposed to prevent. Consequently, under recent amendments to Rule 26, the drafts drawn up by experts are now clearly shielded under the work product privilege

Predictive Coding Protocols

- These four ESI problems, volume, diversity, change, and storage, have inspired some experts to design new data retrieval techniques, not all of which are welcome by the courts or by everyone within the legal community. One technique that has been accepted by several courts is a data mining and retrieval process called the predictive coding protocol. Predictive coding uses a digital cataloging process to examine a range of documents in order to adjust a search algorithm so that the computer will know what to look for as it examines a larger field of documents to determine which of those documents are discoverable. The program then conducts a second, more extensive inspection of all the documents based on the new algorithm to reduce the storehouse of documents to a much more manageable number that clearly fits the pattern outlined in the algorithm. This shortened pile of documents can then be examined, studied, and collated by "flesh and blood" attorneys who produce the discoverable documents in response to the discovery request.

The Discovery Conference

- To facilitate discovery, the Federal Rules of Civil Procedure have generally required that the parties get together to discuss matters related to discovery as soon as possible in the litigation process. However, Rule 26(f) mandates that the preconference "meet-and-confer" session be conducted no later than 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b). When discovery was limited to depositions, interrogatories, and requests for paper documents, some trial attorneys, many of whom work well under pressure, postponed any preparatory work for the meet-and-confer session until the very last minute. Such "11th-hour" preparation steps are no longer advisable. Attorneys who wait for the meet-and-confer session to prepare for the discovery negotiations probably will find themselves bewildered by the complexities of their own client's computer system, to say nothing of the computer system of the opposing party. This is true because, as noted earlier, the rules now require that the discovery plan involve a discussion of ESI, including the format used for the delivery of ESI and the negotiation of clawback agreements. Rule 26(f)(3) states that a discovery plan should include: 1. any changes made in timing, form, or requirements for mutual disclosures; 2. subjects on which discovery is needed, a completion date for discovery, whether discovery should be conducted in phases, and whether discovery should be limited or focused upon particular issues; 3. those concerns that might involve the revelation or the discovery of electronically stored information (ESI), including its format for production; 4. those matters that might involve allegations of privilege or protection of information as material prepared for trial, including agreements allowing the assertion of such demands after the evidence has been delivered (aka clawback or nonwaiver agreements), and whether the court will be asked to add the agreement to an order; 5. what changes should be made in normal limitations on discovery; and 6. any orders that should be entered by the court. - Within 14 days of the Rule 26 conference, the parties are to file a written report outlining their plan.

Initial Disclosures

- Under Rule 26(a)(1)(A), without waiting for a discovery request, the parties should exchange the following information within 14 days of their meet-and-confer session: 1. name and, if known, address and telephone number of anyone likely to have discoverable information relevant to the disputed facts in the case, identifying the nature of that information; 2. a copy of, or a description by category and location of, all documents, data compilations, electronically stored information (ESI), and tangible things in the possession, custody, or control of the party; 3. a computation of damages claimed by the disclosing party, making available for copying or inspection any supporting documentation or other evidentiary material; and 4. any insurance agreement that may satisfy part or all of any judgment in the case must be available for copying and inspection. - As noted previously, the central change in Rule 26(a)(1)(A)-(D) is the addition of electronically stored information (ESI) to the list of mutual disclosures.

Duty to Supplement

- Under Rule 26(e) all disclosures are required to be supplemented if the disclosing party later acquires information under the following circumstances: 1. if the party learns that in some material respect the information disclosed is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or 2. when the court has so ordered.

Quick Peek and Clawback Agreements

- Under the Federal Rules, two types of agreements minimize the risk of the accidental disclosure of privileged information: the quick peek agreement and the clawback agreement. A quick peek agreement allows the ESI retriever to give unexamined evidence to the ESI requester for a preliminary assessment while still preserving all privileges associated with that evidence. The ESI requester can then indicate which parts of the evidence the requester would prefer to examine in detail. The ESI retriever will then look exclusively at the ESI designated by the ESI requester and either turn it over or make any claims of privilege it deems appropriate. The quick peek agreement is a risky proposition because it grants the opposing party access to evidence that should have remained protected. As we shall see in a moment, Rule 502 of the Federal Rules of Evidence helps make the practice, just a bit safer. Still even Rule 502 cannot erase the insight gained by the opposing party which has had access to evidence that should have been shielded. For this reason, the quick peek agreement is not very effective and is thus largely disfavored. - Clawback agreements, which are authorized under Rule 26(f)(3) and which are sometimes called nonwaiver agreements, allow the parties to agree that privileges can be asserted after evidence has been sent to the other party if the ESI retriever discovers that it has accidentally included privileged information in the evidence sent to the requester. Clawback agreements were authorized because the complicated nature of ESI makes the inadvertent revelation of privileged information more likely than it ever was when most evidence was in paper form - Clawback agreements are not fool proof, however. Rule 502 (b) of the Federal Rules of Evidence states that claims of privilege can be asserted after the mistaken transfer of protected evidence only if (1) the waiver really was unintended, (2) the party asserting the privilege took reasonable precautions to prevent the disclosure, and (3) as soon as the party asserting the privilege realized its mistake, that party took immediate steps to correct the mistake. Of course, just how these limits are interpreted is up to the discretion of the court

Pretrial Disclosures

- Unless otherwise ordered by the court, various evidentiary matters must be disclosed at least 30 days before trial. These matters include the following: 1. name and, if not previously provided, address and telephone number of each witness, stating whether the party actually expects to call the person as a witness or whether the witness will be called only if needed; 2. designation of those witnesses whose testimony is expected to be presented by means of a deposition and a transcript of the pertinent portions of the deposition testimony; and 3. an identification of each document or other exhibit, separately identifying those which the party expects to offer and those which the party may offer if the need arises. - Any objection to the admissibility of deposition testimony or admissibility of documents or other exhibits must be made within 14 days of service of the pretrial disclosures by the other party. Any objections not made may be deemed waived.

Federal Rules of Evidence—Rule 702

- Up until a short time ago, many attorneys still attempted to examine ESI manually. Today, the enormous amount of ESI stored in even the most average-size computer has rendered manual searches extremely difficult. Many attorneys now use computerized searches in order to locate relevant, responsive documents that are not privileged. One such strategy is the keyword search. Despite all the safeguards used to protect privileged documents, because of the vast amount of ESI housed in the memory of a computer system, at times, some privileged material may be inadvertently obtained by the opposing side. - When the ESI retriever realizes the error and demands a return of the material, the ESI receiver will frequently argue that the privilege was waived when the ESI retriever voluntarily released the ESI. If the ESI retriever files a motion demanding a return of the alleged privileged material, the judge must examine the search technique used by the ESI retriever to determine whether the material was released voluntarily or accidentally. The courts have decided that any evidence that is offered to defend or to critique such a search must be supplied by an expert. This means that evidence must meet the requirements of Rule 702 of the Federal Rules of Evidence - Rule 702 says that whenever "scientific, technical, or other specialized knowledge" will help the judge or the jury to comprehend the nature of the evidence or to establish a fact that has been questioned in the case, then an expert witness may be called to testify as long as: (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has reliably applied the principles and methods to the facts of the case. - These requirements are not difficult to meet as long as the expert IT specialist is properly prepared by your supervising attorney. Finally, remember that, despite the increased emphasis on electronically controlled search techniques, manual searches of ESI, while difficult, are not yet obsolete and that, under the right circumstances, the courts will still allow such searches.

Motions to Compel and Protective Orders

- Whenever a dispute over the question of whether a party must produce evidence during discovery cannot be resolved in an informal manner, the evidence requester can ask for a motion to compel discovery, and the evidence retriever can ask for a protective order. Ironically, to demonstrate the validity of either request, the retriever may be forced to produce part of the ESI to show that it really does involve unreasonable difficulties. Short of this drastic step, the ESI retriever may have to let the ESI requester inspect the ESI retriever's computer system or, at the very least, to interview the ESI retriever's IT personnel - The ESI retriever has the responsibility of showing that the information sought by the ESI requester is not reasonably available, given the difficulties and the expense involved in retrieving the evidence sought by the ESI requester. In contrast, the ESI requester has the job of demonstrating that the evidence is so essential to the case that obtaining the evidence outweighs the expense and the difficulties involved - Two factors play into this decision. The first factor is that the decision to require a party to obtain difficult-to-access data is not just a matter of difficulty and expense. The court may consider other factors such as other sources of evidence available to the requester, speculation about the nature of the as yet undiscovered evidence, and the critical nature of questions that are related to the undiscovered evidence, among others The second factor that must be considered is that certain restrictions have been placed on this process by Rule 26(b)(2)(C): (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.