Judges speak candidly on new e-discovery rules

The new Federal Rules of Civil Procedure, updated in December, have brought e-discovery front and center of litigation proceedings, upping the ante for storage managers.

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NEW YORK -- The Supreme Court's amendments to the Federal Rules of Civil Procedures (FRCP), which went into effect Dec. 1, 2006, have opened up a can of worms for IT and legal professionals under litigation, according to judges and attorneys at the Legal Tech conference in New York this week. For storage professionals, the word is that recovering data for litigation purposes is about to become an even bigger headache.

The amendments to the rules address two key areas: discovery of electronically stored information (ESI) and inadvertent production of privileged or "sensitive" company data. These amendments were the focus of a panel at the conference and more specifically, a finer point within the rules that encourages parties to agree on the format in which ESI will be produced. The party requesting documents may ask for them in their native format complete

Metadata is the disease of the week … lawyers that don't know what's going on will ask for [metadata] because they can.
Ronald Hedges
U.S. magistrate judge district of Maryland
with metadata, e.g. Microsoft Word for a .doc file or Microsoft Excel for an .xls file, as opposed to more generic file formats, as this provides more information about the data. However, in cases that have been heard since the new amendments, the production of metadata along with the actual file is raising eyebrows in the courts as it is dragging out proceedings, experts said.

"Metadata is the disease of the week … lawyers that don't know what's going on will ask for [metadata] because they can," said Ronald Hedges, U.S. magistrate judge for the district of Maryland, during the panel discussion. "Getting metadata will run up the review costs and is probably not worth it."

Echoing this sentiment, Paul Grimm, U.S. magistrate judge for the district of Maryland, said that if the cost of recovering all the data is 60% of the value of the case, it's not worth the effort. "If you're spending $150,000 to produce the information and $250,000 for your lawyer to review it and the case is only worth $500,000 … this is a problem."

Key to future success in legal discovery

Grimm noted that Rule 26(f) strongly urges parties to talk about the likelihood of the need to turn over metadata about files in initial "meet and confer" conferences.

"Parties must take the time up front to discuss issues like metadata and agree to limit the discovery to certain records to reduce the volume … If you package the information up in this way, the court is not likely to second guess it," Grimm said. He added that if the other side wants more information, find out why they want more and if they are willing to pay for it themselves. "I have never seen anyone want information that much that they are willing to pay for it," he said.

From an IT perspective, metadata refers simply to any data about the data that's been created: who created it, when, how large the file is, etc. But it turns out that it's not that simple once you get lawyers involved.

The rules make no distinction between embedded metadata, substantive metadata, common metadata or any other kind of metadata, according to Thomas Allman, senior counsel at Mayer, Brown, Rowe & Maw LLP. "The new rules punt on this issue … They did not know what to do about metadata so they left it to the parties to figure this out," he said.

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The judges and attorneys on the panel agreed that they haven't got all the answers to these issues yet, and whether metadata is requested or not, will depend on the type of information in question. For example, Excel spreadsheets are notorious for containing a lot of metadata. "Tell your opponent that you are stripping most of it out," Allman suggested. "Leave the requesting party to show the judge why they really need that metadata."

Grimm added that if you tell the opposing party that you are stripping out the metadata, you cannot be accused of hiding evidence. "It's important to be up front and blunt about it," he said.

The upshot here for storage managers is that recovery of data for litigation purposes is going to become a more granular exercise, requiring much more sophisticated tools than most companies currently use today.

Disclosing privileged material

Another issue surrounds the risk of inadvertently disclosing privileged or sensitive company information, when the volume of data being recovered is so large. The new rules contemplate this and require the receiving party to return, sequester or destroy all copies of the information at issue. IT experts were quick to ask about how this might work in practice when information might have been sent out over email. "How do you get those emails back … the information is already out there," said one bemused IT director, who requested not to be named. "These rules are clearly written without much insight into IT practices," he said.

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