Electronic Discovery Practice under the Federal Rules

Introduction 1(2) The Rules Amendments: An Historical Overview 3(10) The Background of the Rules Amendments 3(2) Initial Discussions of Electronically Stored Information (ESI)---Rules 16(b), 26(a)(1), 26(f), and Form 35 5(1) Rule 16(b) 5(1) Rule 26(a)(1) 5(1) Rule 26(f) 5(1) Form 35 6(1) Extent of Production (Rules 26(b)(2)(B), 45(d)(1)(D)) 6(2) Rule 26(b)(2)(B) 6(1) Rule 45(d)(1) 7(1) Scope and Form of Production (Rules 33(d), 34(a)--(b), 45(a), (c)--(d)) 8(1) Rule 33(d) 8(1) Rule 34(a)--(b) 8(1) Rule 45(a)(1)(C), 45(c)(1)(B), 45(d)(1)(B)--(C) 9(1) Protection of Privileged or Trial-Preparation Materials (Rules 16(b)(6), 26(b)(5), 26(f)(4), 45(d)(2), and Form 35) 9(1) Rule 26(b)(5) 9(1) Rules 16(b)(6), 26(f)(4), Form 35 10(1) Rule 45(d)(2) 10(1) Sanctions (Rule 37(f)) 10(3) Initial Disclosures/Early Meeting of Parties---Rules 16(b), 26(a)(1)(B), 26(f), and Form 35 13(12) Introduction 13(3) Summary of Changes From Previous Rules 16(2) Rule 16---Pretrial Scheduling Orders 16(1) Rule 26---Initial Disclosures 16(1) Rule 26---Early Conference of Parties and Discovery Planning 17(1) 2006 Amendments 17(1) Other Rulemaking on Early E-Discovery Meet-and-Confer Provisions 17(1) Analysis and Open Issues 18(6) Parties' Discussion of Issues Relating to Preserving Discoverable Information 18(1) When Does the Duty to Preserve Arise? 19(1) What Steps Are Necessary to Satisfy the Duty to Preserve? 20(1) What Standards Govern When Parties Disagree? 21(1) Parties' Discussion of Issues ``Relating to Disclosure or Discovery of Electronically Stored Information'' 22(1) Preparing for the Rule 26(f) Meeting 22(2) The Impact on Subsequent Discovery 24(1) List of Related Worksheets 24(1) Extent of Production---Rules 26(b)(2)(B) and 45(d)(1)(D) 25(12) Introduction 25(2) Summary of Changes to Rule 26(b)(2) Limitations on Discovery 27(1) Issues Debated During the Public Comment Period Regarding the Published Proposed Rule 26(b)(2)(B) 28(2) Application of Rule 26(b)(2)(B) and Open Issues 30(4) Meet-and-Confer Requirement 30(1) The Responding Party's Burden 30(2) The Requesting Party's Burden 32(1) Cost-Shifting 32(2) Under Rule 45(d)(1)(D), Third-Party Subpoenas Subject to Same Two-Tiered System 34(1) List of Related Worksheets 35(2) Form of Production---Amendments to Rules 33, 34, and 45 37(28) Introduction 37(1) Rule 33(d)---Responses to Interrogatories 37(3) Summary of Changes From Previous Rule 38(1) Analysis and Open Issues 38(1) ``As Readily as Can the Party Served'' 38(1) ``Reasonable Opportunity to Examine, Audit or Inspect the Information'' 39(1) Rule 34(a) 40(4) Summary of Changes From Previous Rule 42(1) Analysis and Open Issues 43(1) ``Electronically Stored Information'' as Opposed to ``Documents'' 43(1) Requests to Inspect 43(1) Rule 34(b) 44(7) Summary of Changes From the Previous Rule 46(2) Analysis and Open Issues 48(1) Variety of Forms 48(1) ``Ordinarily Maintained'' 49(1) ``Reasonably Usable'' 50(1) Rules 45(a)(1)(C), 45(c)(1)(B), 45(d)(1)(B)--(C) 51(3) Summary of Changes From Previous Rule 52(1) Analysis and Open Issues 53(1) Imposition of E-discovery Burdens on Nonparties 53(1) Testing and Sampling 53(1) List of Related Worksheets 54(1) Protection of Privileged and Trial-Preparation Materials---Rules 16(b)(6), 26(b)(5), 45(d)(2), and Form 35 Introduction 55(2) Summary of Changes to Rules Concerning Protection of Privileged and Trial-Preparation Materials 57(1) ``Clawback'' Agreements 57(1) ``Quick Peek'' Agreements 57(1) Issues Debated During the Drafting and Comment Period for Amended Rule 26(b)(5) 57(2) Application of Rule 26(b)(5) and Open Issues 59(1) Producing Party Must Provide Notice to Receiving Party Regarding Privileged Information to Be Returned 59(1) Upon Notice, Receiving Party Has an Affirmative Burden to Return Privileged Information 60(1) Receiving Party May Submit the Information at Issue to Court Under Seal for a Determination of Privileged Status 60(1) Practitioners Should Use Caution in Employing Rule 26(b)(5)(B)'s Procedures 60(3) The Substantive Rules Regarding Waiver of Privilege Are Not Affected by Rule 26(b)(5) 60(1) Third Parties May Be Able to Use the Privileged Information Despite the Producing Party Clawing It Back Under Rule 26(b)(5)(B) 61(1) Ethical Rules May Prohibit an Attorney From Voluntarily Producing Documents That the Attorney Has Reason to Suspect May Contain Privileged Information or Client Secrets 61(1) A Proposed Amendment to the Federal Rules of Evidence May Resolve Some of the Privilege Waiver Issues 62(1) The Best Offense Is a Good Defense 63(1) Under Rule 45(d)(2)(B), Third-Party Subpoenas Are Subject to the Same Procedures for Returning Privileged Information 63(1) List of Related Worksheets 63(2) Sanctions---Amendments to Rule 37(f) 65 Introduction 65(1) Summary of Changes From Previous Rule 66(3) The Need for a Safe Harbor 67(1) The Language of the Rule 67(2) Analysis and Open Issues 69(3) ``Absent Exceptional Circumstances'' 69(1) ``Sanctions Under These Rules'' 69(1) ``On a Party'' 70(1) ``Routine, Good-Faith Operation'' 70(2) ``Electronic Information System'' 72(1) List of Related Worksheets 72 Table of Worksheets 1(1) Bibliography & References 1(1) Glossary 1