Monday, November 12, 2012

eDiscovery in U.S. Federal Court: What ArrivalStar Means to You.

eDiscovery in U.S. Federal Court: What ArrivalStar Means to You.

Author: Eric Everson, MBA, MSIT-SE, J.D. Candidate May 2013


The thing I hear the most from attorneys is how complex and complicated eDiscovery is making litigation.  The truth is that eDiscovery can be both complex and complicated, however many courts and jurisdictions all over the world are working through it every day.  One such example via an Amended Order (2012 WL 3590414) that hails from Judge Allegra is one of special import for those facing eDiscovery in U.S. Federal Court: ArrivalStar S.A. v. The United States of America (2012 WL 3590414).

This Amended Order published August 20, 2012, irons out some very fundamental aspects of eDiscovery for litigants in U.S. Federal Courts by way of 15 key points:

1. This Order supplements this court's discovery rules.

2. Generally, the costs of discovery shall be borne by each party, subject to the provisions of RCFC 26(b)(2)(B) and 37.

3. Production requests under RCFC 34 and 45 involving electronically stored information (ESI) shall not include metadata absent a showing of good cause (e.g., that questions exist concerning the authenticity or authorship of email). (Emphasis added)

4. Email production request shall only be propounded for specific issues, rather than general discovery of a product or business. Subject to paragraph 3, the production of email shall not include metadata so long as the following information fields are otherwise apparent: date sent, to, from, cc, and any attached filed(s).

5. Email production requests shall be phased to occur after the parties have exchanged initial disclosures and basic documentation about the patents, the prior art, the accused instrumentalities, the relevant finances, as well as the technology systems involved with email that is reasonably anticipated to be relevant. While this provision does not require the production of such information, the court encourages prompt and early production of this information to promote efficient and economical streamlining of the case.

6. Email production requests shall identify the custodian, search terms, and time frame. The parties shall cooperate to identify the proper custodians, proper search terms, and time frame.

7. Each requesting party shall limit its email production requests to a total of eight custodians per producing party. The parties may jointly agree to modify this limit without the court's leave. The court shall consider contested requests for additional custodians, upon showing a distinct need based on the size, complexity, and issues of this specific case.

8. Each requesting party shall limit its email production requests to a total of ten search terms per custodian per party. The parties may jointly agree to modify this limit without the court's leave. The court shall consider contested requests for additional search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company's name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production.

9. Before seeking to modify the limits specified in paragraphs 7 or 8, the parties are encouraged to engage in sampling under RCFC 26(b) and 34(a)(1)(A).

10. Pursuant to Fed.R.Evid. 502, the production of documents and data pursuant to this Order shall not result in the waiver of the attorney-client privilege or work-production protection as to those documents and data. Also, the production of privileged or protected documents or data under this Order shall not result in the waiver of the attorney-client privilege or work-product protection as to those documents and data in any other federal or state proceeding.

11. If the producing party determines that it has produced a document or data to which it wishes to assert a claim of privilege or protection, the counsel for the producing party shall notify the recipient promptly of its claim. As part of the notification, the producing party's counsel shall identify, by Bates number(s), the document(s) as to which the producing party is asserting a claim of privilege or protection.

12. The recipient shall notify the producing party's counsel upon identification of any document(s) or data which appears to be potentially privileged or protected. Such notification shall not waive the recipient's ability to challenge any assertion of privilege or protection made by the producing party as to the identified document(s). As part of the notification, the recipient shall identify, by Bates Number(s), the document(s) or data at issue. The recipient shall segregate the specified document(s) or data, as well as any copies thereof, from the other materials, and the recipient shall not use the information in the potentially privileged or protected document(s) or date, except as provided by RCFC 26(b)(5)(B), for a period of 14 days after the date on which the recipient notifies the producing party's counsel. Within the 14–day period, or any other period of time agreed to by the parties, the producing party shall determine whether it will assert a claim of privilege or protection as to the identified document(s), and its counsel shall notify the recipient of its determination.

13. Upon receiving notice of a claim of privilege or protection by the producing party regarding a produced document or data, the recipient shall segregate, with promptness and in accordance with RCFC 26(b)(5)(B), the specified document or data, as well as any copies thereof, and the recipient shall not use the information in the specified document or data, except as provided by RCFC 26(b)(5)(B), until after the claim is resolved. If the court upholds—or if the recipient does not challenge—the producing party's claim or privilege as to the produced document or data, the recipient shall return or dispose of the specified document or date, as well as any copies thereof.

13. The parties agree to exchange ESI in accordance with the following provisions. All ESI will be produced either in their native file format or in PDF or TIFF format according to the preference of the producing party except that in the case of ESI for which the native file format is Microsoft Office Excel or other spreadsheet software (e.g., Lotus 123 or Quattro Pro), such ESI shall be produced in its native file format. In producing ESI PDF or TIFF format, however, the producing party shall not remove or reduce any word searching capabilities present in the underlying ESI's native file format. The parties may, by agreement, modify the formats prescribed by this paragraph.

15. This Order may be modified by the court for good cause. The court will be inclined to grant any modification jointly proposed by the parties.

Footnote: The order contains some of, but not all, the provisions from the Model Order drafted by the E–Discovery Committee of the Federal Circuit Advisory Council. See http://www.cafc.uscourts.gov/images/stories/the-court/Ediscovery_Model_Order.pdf  The court also considered the Model Order drafted by the United States District Court for the Eastern District of Texas on this subject, see http://www.txed.uscourts.gov/page1.shtmil? location=rules, as well as recent commentary on this subject, see Daniel Garrie, “The E–Discovery Dance for Patents: Changing the Tune,” http://www.law360.com/articl es/350842/the-e-discovery-dance-for-patentschanging-the-tune.

I know that for some, posting all 15 of these key points only further muddies the water, but for others it likely brings some clarity.  If nothing else, ArrivalStar gives you a place to start from when facing eDiscovery in Federal litigation.  I added emphasis to number 3, as it carves out an exception against providing metadata on RCFC 34 (ESI) and 45 (Subpoenas) requests.  The flag of caution that I would raise here is in producing ESI in something other than native format.  When it comes to today’s eDiscovery software, native format is king and to accept anything less, is a litigation decision that only you can make for yourself.

eDiscovery is here to stay, so little gems like ArrivalStar help to resolve some of the sticky issues therein.  It is important when working through matters of eDiscovery to understand what you are agreeing to and what impact that may have on your case.  While many cases will not turn on metadata, understand that there will be those exceptions where the metadata says it all.

#eDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law where he will graduate in May 2013.  Prior to law school he earned an MBA and Masters in Software Engineering while working within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Tags:  ArrivalStar, eDiscovery, Discovery Agreements, Clawback, Federal Rules of Civil Procedure, Legal Hold, ESI, Patent Law, Technology Law, modified file formats, TIFF, PDF, .XLSX, RCFC 26, Privilege   

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