Getting the Data from the People who Store It: Module 3 of 5

Summary

This module explores the evolution of the discovery process in litigation, focusing on how modern technology has transformed the handling of electronic data. It discusses the ethical rules governing attorney behavior, including the responsibility to keep up with technology, respond fully to discovery requests, and maintain client document privacy and security. The module also covers pre-trial rules under the Federal Rules of Civil Procedure, which dictate how discovery should be conducted, including the use of technology-assisted review and predictive coding to manage the vast amounts of electronic data involved in modern litigation.

Takeaways

• 📚 There are several formal ways to request discovery in litigation, including subpoenas, requests for admission, requests for production of documents, and depositions.
• 💡 Modern technology has changed the discovery process by altering the form in which data is held and the means necessary to search and obtain relevant, non-privileged data.
• 📈 The legal system has adapted to accommodate technological needs by promulgating and adjusting evidentiary, procedural, and ethical rules to fit the changing landscape of data storage and retrieval.
• 👨‍⚖️ Ethical rules for lawyers include keeping up with technology, responding fully to discovery requests, ensuring client document privacy, confidentiality, and security, and being responsible for third-party e-discovery providers.
• 🔒 Security breaches can lead to lawsuits against lawyers and cloud storage companies, highlighting the importance of staying updated with the latest in technology to prevent such incidents.
• 📝 The Federal Rules of Civil Procedure (FRCP) govern the discovery process before trial, aiming to expedite trials and encourage cooperation among parties.
• 🗓️ FRCP Rule 26(f) is crucial as it sets the framework for how discovery will be handled, including discussions on ESI preservation, discovery plan creation, and privilege considerations.
• 📋 FRCP Rule 34 specifies how the responding party must produce ESI, typically as stored in the ordinary course of business and in a readable format for the receiving party.
• 🚫 FRCP Rule 37 addresses the consequences of failing to preserve or produce ESI in a timely and usable form, which may result in sanctions, including default judgments.
• 🔍 Predictive coding, a form of technology-assisted review, has become the standard for searching and retrieving relevant electronic data in litigation, improving accuracy and efficiency over human review.

Q & A

What are the formal ways to request discovery from other parties in litigation?

Formal ways to request discovery include subpoenas, requests for admission, requests for production of documents, and depositions.

How has modern technology changed the discovery process?

Technology has changed the discovery process by altering the form in which data is held and the means necessary to search and obtain relevant, non-privileged data.

What are the ethical rules that bind attorney behavior in the context of discovery?

Ethical rules developed by state bars in conjunction with state Supreme Courts, which are not laws but can lead to disciplinary actions, court sanctions, and malpractice lawsuits if violated.

Why are lawyers duty-bound to keep up with technology in the context of discovery?

Lawyers are duty-bound to keep up with technology to ensure the security, privacy, and effective conduct of discovery, as failure to do so can lead to ethical violations and legal liabilities.

What is the role of the American Bar Association's Model Rules of Professional Conduct in developing ethical rules?

The Model Rules serve as a basis for states to write their own rules, providing a framework for ethical considerations in the legal profession.

How do attorneys ensure the security and privacy of client documents when storing e-discovery results in the cloud?

Attorneys are responsible for the security of all client-related documents. They must ensure that cloud storage providers have adequate security measures in place to protect against data breaches and privacy violations.

What are the Federal Rules of Civil Procedure that govern the discovery process before trial?

The Federal Rules of Civil Procedure that govern discovery before trial include Rule 16 (scheduling conferences), Rule 26 (scope of discovery), Rule 34 (forms of production), and Rule 37 (failure to preserve electronically stored information).

What is the purpose of a discovery plan in the context of e-discovery?

A discovery plan is a written agreement between parties outlining how discovery will proceed, including ESI preservation, forms of production, methods to filter irrelevant information, and protection for privileged information.

How does FRCP Rule 34 affect the production of electronically stored information (ESI)?

FRCP Rule 34 mandates that the responding party must produce ESI as stored in the ordinary course of business and in a form readable by the receiving party, unless otherwise agreed upon by the parties or stipulated by the court.

What are the consequences of failing to preserve or produce ESI in a timely and usable form according to FRCP Rule 37?

Failure to preserve or produce ESI in a timely and usable form can result in sanctions under FRCP Rule 37. This includes both inadvertent and deliberate destruction of data, with the latter potentially leading to presumptions of unfavorable data or even default judgment.

How does predictive coding assist in the e-discovery process?

Predictive coding uses machine learning algorithms to predict which documents are relevant based on a seed set of documents. This process narrows down the number of documents that require human review, saving time and increasing accuracy.