*Image Extracted from Google
Say what?
When it comes to accessing the electronic data you need from the opposing party
in a civil suit it’s important to know what to do! I have linked the Fed.R.Civ.P. title of this blog to the Standing Order of the Honorable Frank D. Whitney. It is the basis on which Texas has built its guidelines for accessing electronically stored information for civil suits. I have also incorporated more of my notes from the Technology Summit 2013 at the Belo Mansion in Dallas, Texas in hopes it gives you good ideas on "What to Do When" trying to paddle your way through the deep end that is electronic discovery.
"Change
is the law of life. And those who look only to the past or present are certain
to miss the future." John
F. Kennedy
From my notes at the conference... Good suggestions to consider...
Let the custodian of the data tell you where it is located. You
want to break up your search for data by custodian and date. Know who the key
players were in regards to the information you are requesting and when you
believe it happened.
Know if parts of the data you need are located on a home/personal
computer. (We will get into work product shortly)
I have a stared point from the conference and it’s a list of
things we as data locators need to do:
Be a frenamy!
Be prepared!
Is it in compliance with T.R.C.P. Electronic Discovery or Fed.R.Civ.P.
26?
T.R.C.P.
The conditions imposed by the Court for
obtaining access to another party’s hard drive were taken directly from the
Federal Rules of Civil Procedure and federal caselaw addressing electronic
discovery.
The
Court stated that even if the requesting party makes this showing, courts
should not permit the requesting party itself to access the opponent’s hard drive,
but rather, should grant access only to a qualified expert. But the Court
admonished that, as under the Federal Rules, courts are “generally discouraged”
from ordering forensic examinations of another party’s hard drives because such
examinations are “particularly invasive.”
Further incorporating the Federal
Rules on this issue, the Court stated that, before serving requests for
electronic information, parties and their attorneys should discuss potential
issues related to electronic discovery, similar to the conference requirement
under Federal Rule of Civil Procedure 26(f)(3).
The Court also summarized the
procedure for obtaining electronic discovery under the Texas Rules of Civil
Procedure:
1.
The party seeking electronic discovery must make a specific request for that information
(e.g., specifically request deleted emails and not just emails or documents);
2.
The responding party must then produce any responsive electronic information that
is reasonably available in the ordinary course of business;
3.
If the responding party cannot retrieve responsive electronic information
through reasonable efforts, the responding party must object on those grounds;
4.
The parties should make reasonable efforts to resolve the dispute without court
intervention;
5.
If the parties are unable to resolve the dispute, and court intervention is
sought by either party, the responding party must demonstrate that the
requested electronic information is not reasonably available because of undue
burden or cost;
6.
Even if the responding party proves that the electronic information is not reasonably
available, the requesting party may still obtain the information by showing
that the benefits of production outweigh the burden imposed on the responding
party;
7.
If the requesting party meets its burden of showing that the benefits outweigh
the burden on the responding party, the court may order production, but must
protect sensitive information and employ the least intrusive means;
8.
The requesting party must pay the reasonable expenses of any extraordinary
steps required to retrieve and produce electronic information; and
9.
Courts should not grant the requesting party direct access to the responding party’s
electronic storage devices and should be extremely cautious to avoid undue
intrusion.[1]
When collecting data good things to agree to according to the conference:
1) Exclusion
2) Limitations
3) Format
IM’s and
Voicemails are data you will want to avoid collecting
It was stated, at the conference, that a document is copied on
average 19 times! With the mounds of data you have to comb through it seems
ridiculous so, limit what you need to 1 copy.
We still search for documents with "search terms" but what is changing our old ways fast is Technology Assisted Review (Again, we will touch on this topic down the road) It’s a great idea to ask your vendor how they perform searches in the databases you are asking them to look in.
My notes say that 73% of the money a client spends is in data review so, reign in the review!
I have this stared in my notes as well and it’s a good one.
*Never agree to search terms!
The theme throughout my notes has been PLAN! PLAN! PLAN!
I think we will leave it at this and next post will be about Calling the Plays…
