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D.C. Bar Litigation Section Newsletter
Litigation Section Helps Fund Training for Legal Services Attorneys This past year, the Litigation Section continued
its highly successful program of defraying the costs of legal services
attorneys attending Litigation Section-sponsored CLE Training. Thirty-eight
legal services attorneys took advantage of the program in 2006, attending
45 programs. Under the program, the Litigation Section pays 80% of the
fees for poverty lawyers to attend these valuable trainings. The Litigation
Section intends to continue this program this year. If you have any
questions, please contact the CLE director, Lalla Shishkevish, at 202-626-3485.
This past June, the Litigation Section took the program one step further, offering substantial scholarships for legal services attorneys to attend the “Intensive Trial Skills” NITA training offered by the Georgetown University Law Center, which, in turn, substantially cut its rate to allow these attorneys to attend this valuable training. November 7 Program on “How to Manage Large Document Productions”
On Tuesday, November 7, the D.C. Bar’s Litigation Section and the Government Contracts and Litigation Section co-sponsored a brown bag program on “How to Manage Large Document Productions.” The program’s focus was the life of a document production from the initial strategic decisions that set the parameters for the production, including implementing hold orders, to the aftermath of the production. This moderated panel also discussed issues to be considered in large document productions, techniques to manage the production process more efficiently, and new technologies that are available to facilitate the process. Litigation Section Updating D.C. Practice Manual The Litigation Section is responsible for the D.C. Superior Court
Civil Practice and ADR chapters of the Bar’s annual Practice Manual.
The Section’s editors for the 2006 and 2007 editions are Paul Monsees
and Wendy Arends of Foley & Lardner LLP. Paul and Wendy reviewed
each chapter and determined both required editing and revisions to
bring them current. Working against the Bar’s rigorously enforced
publishing schedule, they successfully (and timely) accomplished a
substantial rewrite of both chapters. Thanks to Paul and Wendy for
their great work on behalf of the Section, and willingness to carry
on for this year’s edition. Electronic Discovery: Balancing Compliance And Burden Considerations Sandra Tvarian Stevens Wiley Rein LLP The amendments to the Federal Rules of Civil Procedure that relate to the production of electronically stored information took effect on December 1, 2006. This article focuses on how certain of these changes may affect litigants’ e-discovery obligations and further provides some practical advice on how to address e-discovery requests that are unduly burdensome. As an initial matter, litigants and their counsel should be aware that the amendments require parties to address electronic discovery issues such as preservation, disclosure and discovery of electronically stored information at the Rule 26(f) conference. See Fed. R. Civ. P. 26(f). The new rules grant the court the discretion to include in its scheduling order "provisions for disclosure or discovery of electronically stored information." See Fed. R. Civ. P. 16(b)(5). Because the discovery agreed to by the parties at the 26(f) conference may be incorporated into a scheduling order that will set the parameters of the parties’ discovery obligations, it is critical for parties and their counsel to have an understanding before the initial meet and confer of their ability to retrieve and produce responsive electronic information. Such internal discussions should include, among other things, a discussion about where responsive electronic information is likely to be found, the format in which it is stored, and the related time and cost involved in producing such information. Depending on the nature of the requested discovery, and the manner in which a party’s electronic information is stored, e-discovery has the potential to impose significant costs and burdens on the party from whom the discovery is sought. Thus, while the amendments require parties to produce certain electronically stored information as part of their mandatory initial disclosures, (Fed. R. Civ. P. 26(a)(1)(B)) they also allow parties to seek to limit production of electronically stored information from sources that are “not reasonably accessible because of undue burden or cost.” See id. 26(b)(2)(B). In that regard, the responding party makes an initial determination regarding the accessibility of information, but bears the burden of demonstrating undue burden or cost. Moreover, the responding party must still produce electronically stored information that is reasonably accessible and otherwise not objectionable. The amended rules do not define what kinds of electronically stored information are “reasonably accessible.” This is not surprising given that such a determination is inherently fact specific. With the rapid pace at which technology continues to evolve, electronic information that is not reasonably accessible today may become more easily retrievable tomorrow. Conversely, information that is available today may become more difficult to obtain over time as computer systems and software evolve, or become obsolete. If the requesting party continues to seek discovery from sources that are not reasonably accessible, the parties are required to discuss the burdens and costs associated with accessing and retrieving the requested information. While the amended rules further provide that where the responding party demonstrates undue burden or cost, “the court may nonetheless order discovery from such sources if the requesting party shows good cause,” they require the Court to take into account “the limitations of Rule 26(b)(2)(C).” Id. Under that provision, the Court may consider whether information is available from other sources, the importance of the information, and the parties’ resources in light of the burdens and costs associated with the requested production. Courts have recognized that the costs of retrieving and reviewing electronic data can be substantial. See, e.g., Medtronic Sofamer Danek, Inc. v. Michelson, 229 F.R.D. 550, 557-58 (W.D. Tenn. 2003) (several million dollars for restoring and searching 996 network backup tapes); Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 289-90 (S.D.N.Y. 2003) (nearly $300,000 for restoring and reviewing emails). Litigants and counsel should also know that while certain aspects of the rules may be new as they apply to e-discovery, the traditional discovery safeguards available under the Federal Rules still apply. For example, the former Federal Rules permit a party to produce documents for inspection as they are kept in the usual course of business. Similarly, the amended rules provide that a party may produce electronically stored “information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” See Fed. R. Civ. P. 34(b)(ii). A requesting party may specify the form or forms in which the electronically stored information should be produced. However, a producing party is not required to “produce the same electronically stored information in more than one form.” See Fed. R. Civ. P. 34(b)(iii). Courts have reached similar conclusions in recent cases. See, e.g., Bank One, N.A. v. Echo Acceptance Corp., No. 04-CV-318, 2006 WL 2564262, at *5 (S.D. Ohio Sept. 1, 2006) (ordering defendants to produce customer dispute information “available through defendants’ computer databases dealing with disputes by consumers,” to the extent that the information kept on the databases was “not duplicative of the hard copy complaints”); India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190, 194 (E.D. Wis. 2006) (holding that “[t]o the extent that the documents IBI sought in its requests are kept in hard copy in the usual course of business, IBI is not entitled to any other format” because a party may produce “its electronic information in a hard copy format that mimics the manner in which the information is stored electronically”) (Citations omitted). In sum, while litigants need to comply with their e-discovery obligations, they should also remember that where e-discovery requests are duplicative, burdensome, costly, or simply not relevant, it is appropriate to assert objections to such discovery requests and to seek protection by motion. If you have questions or comments regarding this article or other electronic discovery issues, please contact Sandra Tvarian Stevens at 202-719-3229. Back to TopADR Survey Results Geoff Drucker The McCammon Group Thanks to Section members who responded. The Alternative Dispute Resolution Committee received quality input on where to focus its efforts and picked up several new members as well. Here are the results:
Current Experience
Barriers to Resolution
Initiatives Somewhat lower rated ideas were improving policies and procedures for court and agency ADR programs, general ADR courses, and standards/certification for private neutrals. The relatively low rating for a standards or certification program accords with the relatively high rating of private neutrals in part one of the survey.
Comments Youth Law Fair 2007 Despite a snowy start on March 17, St. Patrick’s Day morning, 173 middle and high school students converged on the District of Columbia Courthouse for the eighth annual Youth Law Fair. Sponsored by the Litigation Section of the D.C. Bar in conjunction with the D.C. Superior Court, this year’s theme, “Internet Vulnerability: Teens and Risk” focused on the widespread use of the Internet by youth and the potential consequences of providing personal information indiscriminately to a world-wide audience. At the morning Speak-Out session, hosted by Curtis Etherly of Coca-Cola, a majority of the student participants indicated that they have posted personal information on the Web and over half of the participants have their own e-mail addresses. Many have used Web logs and social networking sites, which their parents were unaware of or unfamiliar with, on a regular basis.
This year’s mock trials focused on an adult chatting and arranging to meet with a teen “for some fun.” With guidance from volunteer attorneys, court clerk witnesses, In addition to the mock trials, high points of the fair were tours of courtrooms and holding cells by Superior Court judges and exhibits that engaged the students, or provided pertinent information on Internet safety, summer job opportunities, beneficial programs, and youth activities. Following the presentation of verdicts from each trial the Youth Law Fair concluded with an exciting and entertaining drawing of exceptional door prizes patterned on the show “Deal or No Deal.” Twenty of the D.C. Bar’s 21 Sections participated, and this year’s Youth Law Fair hosted 12 exhibitors and received corporate support from Coca-Cola and the Washington National Baseball Club. Five of the 19 cosponsoring Sections provided financial support. The Litigation Section was the primary D.C. Bar sponsor and organizer of the event. Many thanks to all judges, sponsors, volunteers, and participants for making our 2007 Youth Law Fair so successful.
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