Electronic Discovery in the Federal Courts

On Saturday, the CNMI Bar got together for the Fourteenth Annual District Meeting for the Northern Mariana Islands, hosted by our own Judge Munson. Judge Consuelo B. Marshall from the US District Court of the Central District of California gave a terrific presentation on e-discovery. From audience response, it appears that at this point e-discovery has not been heavily utilized here in the CNMI-- but it is surely coming. With the amount of emails being sent, and the amount of data being stored electronically, it is just a matter of time before attorneys in the CNMI will have to start dealing with e-discovery. In addition to a thorough presentation, Judge Marshall referred the bar to the Federal Judicial Center publication (2007) entitled Managing Discovery of Electronic Information: A Pocket Guide for Judges. The publication details amendments to the Federal Rules of Civil Procedure 16, 26, 33, 34 and 37 which went into effect December 1, 2006 and deal with electronically stored information (“ESI”). ESI is different from traditional data in that it is dependent on the computer system which created it, it typically contains “metadata,” i.e. hidden or embedded data as to creation date, author, etc, and it doesn’t necessarily get deleted when the user deletes it. Basically, ESI is treated the same as other discovery as far as evidentiary objections. But because of the “dynamic” nature of ESI, the rules have evolved to identify and preserve data which might otherwise be deleted. Judge Marshall stressed that in order for lawyers to avoid sanctions, they must advise their clients not to destroy relevant ESI when litigation is imminent—even if the client has a good faith memory recycling system in place. (But see Rule 37). Rule 26(f) deals with ensuring parties meet responsibilities for avoiding spoliation of evidence. Rule 26(b)(5) deals with establishing procedures for asserting a privilege or attorney work product protection claim after an ESI document has been discovered. The issue of whether a privilege has been waived continues to be a substantive legal question which is an issue for the court. Proposed Rule 502 of Evidence was published for comment in August, 2006, and provides that inadvertent disclosure of ESI constitutes a waiver only if a party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. In April, 2007, the Advisory Committee on Evidence recommended that the Standing Committee on Rules of Practice and Procedure adopt Rule 502 with some changes. Among the pertinent changes, the text was clarified to indicate that Rule 502 applies in all federal court cases, including cases in which state law provides the rule of decision. In addition, language which strengthened the protections against waiver by inadvertent disclosure was added, while the selective waiver provision was dropped. If the court finds that a disclosure is not a waiver, that finding will be enforceable in subsequent proceedings regardless of party agreement. Finally, the definition of work product will also include intangible information.