The FRCP and eDiscovery

The amendments to the Federal Rules of Civil Procedure have dramatically altered the landscape of electronic discovery. Today, law firms and their corporate clients need proven, simple, powerful tools to meet the requirements of the new rules.

Some of the more significant changes in the FRCP are as follows (click on the rule to learn how the Stratify Legal Discovery™ service addresses many of the concerns raised by the new Rules):

• Rule 16(b) and Rule 26(f): Requires counsel to discuss anticipated EDD issues with their clients and one another prior to the start of discovery and with the court in the scheduling order conference;
• Rule 26(b)(2): Creates a new two-tier document production scheme, pursuant to which only data identified by the producing party as “reasonably accessible” must be produced first. “Inaccessible data” may be sought only if the accessible data production is insufficient. The court may consider cost-shifting for the production of inaccessible data;
• Rule 26(b)(5): Creates a procedural framework for the “claw back” (sequestering and return) of inadvertently produced privileged documents;
• Rule 34: Establishes that the requesting party may specify the form of production for electronically-stored information. The “ordinary” (a/k/a “native”) or “reasonably useable” file format is the default production standard if none is specified; and
• Rule 37(f): Creates a “Safe Harbor” from discovery sanctions for the inadvertent loss of electronic data based on the “routine, good faith operation” of an IT system.

The Stratify Legal Discovery™ service directly addresses many of the concerns raised by the new Rules.

Rules 16(b) and 26(f) – obtain the expert guidance you need before the meet and confer and the scheduling conference

The amendments to Rules 16 and 26 mean that attorneys can no longer hide behind a veil of ignorance on electronic discovery and technical issues. But where can you obtain the necessary knowledge? Stratify has a team of former litigators, legal experts and consultants with dozens of years of combined experience working inside and with AmLaw 100 firms and Fortune 500 corporations on issues such as pre-litigation preparation, complex litigation and electronic discovery. We frequently present at in-house, national and international conferences and have written extensively on a variety of e-discovery subjects. Stratify’s experts are available for in-house and web-conference continuing legal education programs and seminars and for consultation on specific issues.
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Rule 26(b)(2) – efficiently handle all types of data

The new Rule 26(b)(2) distinguishes between only data that is “reasonably accessible” and data which is not (”inaccessible”). Your accessible data, even in huge volumes or difficult to work with formats will need to be produced. In some circumstances your inaccessible data may need to be produced as well.

The Stratify Legal Discovery service effectively and efficiently handles huge volumes of data, whether accessible or inaccessible. Stratify routinely deals with even the most challenging of data types, such as foreign language data, even double-byte Asian character sets, obsolete file types and garbled backup tapes. Because of this, many Fortune 500 corporate legal departments and AmLaw 100 law firms depend on Stratify to help them get the messy job of e-discovery done right and on time.
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Rule 26(b)(5) – improve review in recognition of the limits of clawback

While the new Rule 26(b)(5) provides a framework for notification, sequestering and return of inadvertently produced privileged documents, it does not alter the substantive evidentiary or ethical rules. In some jurisdictions inadvertent production can be deemed to be an absolute waiver. Even in the majority, “middle ground” waiver test jurisdictions, the reasonableness of the steps taken to avoid waiver, such as the use of an advanced electronic discovery system, could make the difference between the court finding waiver or not.

The Stratify Legal Discovery service enhances the quality of your review at the same time it improves your review speed. Concept organization enables more accurate and consistent document tagging because attorneys can now review identical, nearly identical, and related documents together. By contrast, lawyers using traditional, obsolete approaches are forced to shift gears to try to understand documents on a wide range of topics. According to one recent study, lawyers miss as many relevant documents as they find using this tired and inefficient approach.

In addition, the The Stratify Legal Discovery application includes a Production Organizer that automatically detects any inconsistently tagged document before production. Any document that is accidentally tagged “privileged” yet also tagged for production will be flagged, so as to provide additional protection against inadvertent production and possible waiver.
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Rule 34 – use an EDD system that empowers native file format production

Rule 34 clearly contemplates native file format production. Even if native file format production is not specifically required, essential metadata must be preserved, as the Advisory Committee Notes clearly warn against any action that would “degrade” an existing search capability. Native productions are a clear trend in the recent case law as well.

The Stratify Legal Discovery service handles over 390 types of file formats with full review capabilities, including on-line redaction, in native format. Most in-house systems and many of the older online systems require that all documents be first converted from their native formats to TIFF or PDF format. That conversion takes time and costs money. Thus, documents converted into TIFF and PDF may could potentially need to be re-converted back into the original, native format, taking more time and costing more money. With SLDS, you keep your documents in native format the entire time, saving time and saving your clients money.
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Rule 37(f) – avoid navigating the dangerous shoals of the “Safe Harbor”

The new Rule 37(f) provides a “Safe Harbor” against discovery sanctions for the for inadvertent e-data loss from “routine, good faith operation” of IT system. There is much controversy over the level of shelter that is offered by the Safe Harbor, including over whether it could apply to the loss of data during the electronic discovery process itself. Most experts agree that the Safe Harbor will not keep you out of harm’s way in such an event.

For this reason, you need an electronic discovery process that is battle tested and battle ready. Stratify’s chain of custody protocols help protect you from data loss before processing. But even once data is processed, in-house storage brings its own risks. Outsourcing hosting to Stratify’s, at its state of the art data center then helps to protect you from data loss during review.
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