Forensic Update

Reflections on information management within the legal and regulatory arena

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Are Data Collection Protocols part of your Discovery Requests?

Posted by Johnny Lee on May 13, 2010

Under the revised Federal Rules of Civil Procedure, a great deal of attention is paid to Electronically Stored Information (“ESI”).  That said, while the rules are quite specific on the production of ESI, a good bit of interpretation remains on the collection of same.  Specifically, Rule 26(b)(2)(B) and Rule 34 speak directly to production protocols, but the practical nature (and burden) of collection efforts are not contemplated by the Rules.

This begs the question of how (or whether) companies should proceed with collections that are ad hoc or “manual” in nature.  A recent National Law Journal article does a stellar job of sketching out the cautionaries in this space, especially in light of recent case lawspecifically, Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009).

The good news here—especially for budget-conscious companies weighing where to best spend their forensic dollars—is that so-called “manual” efforts were found to be defensible, provided certain minimum standards are met.  The Ford case is revealing for a number of reasons, and the NLJ article does an excellent job of distilling the salient points for both litigators and those who support them.  Click here for the full article.

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