I attended two of the three keynote addresses and gleaned interesting tidbits from both:
Tom Allman kicked things off on Tuesday (2/5) with “The Evolution of E-Discovery.” (I ended up in the back of the standing-room only ballroom with good friend Tim Opsitnick.) Tom Allman is no stranger to this blawg, as I’ve followed his work in a past post.
After strongly emphasizing early discussion strategies, Tom called the amended FRCP 26(b)(2)(B) a “remarkable sentence”:
“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” (emphasis by Mr. Allman)
Tom pointed out that identifying what you will NOT produce is a new concept in the American legal system. Tom further explained that parties sophisticated in electronic discovery issues will first look at what data is easily accessible before making an ignorant blanket demand for all relevant data. It’s possible that everything they will need already resides in reasonably accessible data sources which means it would be unnecessary to expend resources on burdensome data restoration.
Tom stated that “intrusive discovery must yield benefits that outweigh burdens” and illustrated the point by contrasting two cases from the past year that produced exact opposite decisions:
Best Buy Stores, L.P. v. Developers Diversified Realty Corp. 2007 WL 4230806 (D. Minn. Nov. 29, 2007) – a “downgraded” database did not have to be restored.
In re Veeco Instruments, Inc. Securities Litigation, 2007 WL 983987 (S.D.N.Y. April 2, 2007) – backup tapes were required to be restored.
Next, Tom expressed his favor for the so-called “Safe Harbor” rule (FRCP 37(e)) and commented that most judges dislike the premise of this rule since it restricts their unfettered authority to justly and speedily adjudicate matters.
Lastly, Tom outlined the four main options that the individual States have taken in adopting rules governing the discovery of electronically stored information (see Patchwork E-Discovery in the States for further information):
- Mirror the Federal Amendments
- Make selective enhancements (cherry pick)
- Provide trial courts with guidelines
- Do Nothing
Both of these gentlemen are on the veritable front lines of the corporate e-discovery tide, and had several insightful comments:
Andrew Drake (Nationwide):
- Deals with an average of 2,400 cases at any given time.
- Works hard to reduce the reliance on outside parties without increasing the risk of internal exposure.
- Suggests developing structured methodologies for collecting ESI and publishing the process for appropriate employees.
- Attributes the high volume of e-data to the “Office Depot” effect – the lower the cost of hard drive storage goes, the more data we see stored & archived.
- “If you don’t create a tape, then you don’t have a tape to produce.” (Mr. Drake was not suggesting Nationwide was following this procedure.)
Pallab Chakraborty (Cisco)
- Bringing ESI collection in-house can be efficient because certain custodians appear in almost every case.
- The move away from backup tapes to optical storage means that ESI is not preserved as long as it once was.
- Don’t forget to take into account the size of the index of a litigation document database, which can be 10% of the size of the database (i.e. 10TB database could create a 1TB index).