e-discovery 2.0

Similar to the TV show, “Who Wants To Be A Millionaire” this blog entry features the “lifeline” option. Sure, I could’ve gone solo on the post, but when my friend and legal discovery guru David Isom chimed in with his usually insightful analysis, I couldn’t resist the temptation to add his comments about e-discovery.

Ok, so on to the discussion… There’s been no shortage of fodder about the impact of early meet and confer conferences on the e-discovery process. In Mikron (Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)) the court roundly rejected the Defendant’s petition for a protective order when they asked the Court to shift the costs of electronic discovery to the plaintiff because “searching through their electronically stored information (ESI) would generate substantial costs and yield cumulative results.”

The court used a two-part approach to deny the petition. First, the court held that “defendants failed to discharge their meet and confer obligations in good faith, as required by Fed.R.Civ.P. 26(c).” Elaborating on the purpose behind the Rule:

“[C]ompliance with the Rule would have involved a more substantive discussion regarding defendants’ difficulty in producing responsive ESI, the extent to which defendants have searched ESI to date, and the foundation for defendants’ belief that a more thorough search of ESI, including backup tapes, would yield only information that has already been produced. Plaintiff’s counsel stated that no meaningful discussion of these issues took place before the motion was filed, and defendants have submitted no evidence to dispute this fact. Instead, plaintiff’s counsel received no response when it identified specific “gaps” in production and reasonably asked defendants to articulate the foundation for their assertion that unsearched ESI would produce “little additional responsive information.” … A conversation with opposing counsel does not become a “meet and confer” conference simply because a party has attached that label to the discussion.”

As if that trouncing wasn’t enough, the court went on to conclude that even if the defendant had overcome its meet and confer burden, it would have failed on the merits because they didn’t sufficiently address the “inaccessibility” provisions of (Rule 26(b)(2)(B)).

“In alleging that continued discovery of their ESI would be unduly burdensome, defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as “inaccessible.” Defendants have not provided the Court with details regarding, for example: (1) the number of back-up tapes to be searched; (2) the different methods defendants use to store electronic information; (3) defendants’ electronic document retention policies prior to retaining an outside consultant; (4) the extent to which the electronic information stored on back-up tapes overlaps with electronic information stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible. Beyond the estimated costs, defendants have not demonstrated an unusual hardship beyond that which ordinarily accompanies the discovery process.”

Now, on to the lifeline…as usual, David’s insight into this ruling was right on, which is not surprising since he’s the co-chair of Greenberg Traurig’s national e-Discovery & e-Retention Practice Group. His response (with a bit of editorializing) was:

Even this short opinion denying a motion for protective order has important implications for e-discovery. Mikron is significant for the following reasons:

1. It demonstrates the level of facts needed to meet the burden to get a protective order limiting the discovery of ESI
2. It shows the diligence needed to make a litigation hold worth the paper that it is not written on
3. It’s a useful explication of the burden-shifting of the new inaccessibility provision – Rule 26(b)(2)(B)
4. It limits what might have been seen as free-ranging cost-shifting (ala Zubulake and Rowe) to rules-based factors such as in Rule 26(b)
5. Finally, it’s a good discussion of the types of information that will be needed to meet the initial burden of establishing inaccessibility

In sum, David points out that a big gap exists between the mere comprehension of both the new meet and confer provisions and the “inaccessibility” section. Like so many areas of the law, just knowing the rules doesn’t mean you have the facts to support your position. So, work with your internal IT folks, vendors, partners, etc. to get a “lifeline” of your own. Failure to do so will probably leave you looking for answers.

For those interested in really being able to comply with these new standards, please see another collaboration with David, which delves into the nuances of Rule 26(b)(2)(B).