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.
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
