Gregory P. Joseph

Electronic discovery injects difficult, expensive and contentious issues into many otherwise routine disputes. In 1999, the American Bar Association adopted Civil Discovery Standards that included provisions addressing preservation duties and cost shifting in relation to electronic discovery. Those standards have been cited in some of the most celebrated decisions in the area, including Judge Shira A. Scheindlin's decision in Zubulake v. UBS Warburg, 216 F.R.D. 280, 283 n.30 (S.D.N.Y. 2003).

The ABA Section of Litigation has reviewed the area and is circulating for public comment new draft electronic discovery Standards that focus on privilege problems and making discovery conferences and meet-and-confers effective. Like the existing Civil Discovery Standards, the draft Standards are not intended to restate the law or replace existing court rules. Rather, they are designed to supplement existing rules and address practical aspects of the electronic discovery process that are not be by the rules. By way of full disclosure, I co-chair the ABA Task Force that drafted the proposals discussed in this article.

Unraveling Knotty Privilege Issues

New Draft Civil Discovery Standard 32 deals with privilege and work product (collectively, "privilege") concerns. It applies in the common situation in which electronic data must be extracted for production by an IT expert not employed by the producing party. This scenario by definition raises a risk of waiver because privileged documents are being exposed to persons outside the privilege. Standard 32 sets forth three methods to ameliorate the risk of waiver. Each would be implemented by entry of a stipulated court order.

Draft Standard 32(a) suggests that the parties consider having the court appoint a mutually-agreed IT consultant as a special master, referee, or other officer of the court, so that the consultant's extraction and review of privileged electronic data will not effect a waiver. This approach would allow the third party consultant to pull and have access to privileged material (which may be included in any mass extraction of data) without risk that the holder of the privilege will have effected a waiver by permitting the third party to review them.

Under the scenario envisioned by Draft Standard 32(b), the requesting party may have sufficient resources to perform or pay for the extraction, and the producing party may be inclined to allow its opponent to incur all expenses associated with doing so. At the same time, the producing party has no interest in waiving privilege. Under Draft Standard 32(b), the parties stipulate to an order providing that production of privileged electronic data will not effect a waiver. Note that this is different from the customary agreed order, which provides that inadvertent production will not effect a waiver, because parties using the Standard 32(b) approach may know or be fairly certain that privileged material is contained in the mass of data to be extracted. Following extraction, the parties are then free to specify whatever protocol they prefer with respect to review of the data (more about this below).

Draft Standard 32(c) is similar to subdivision (a) in that it envisions the use of an agreed third-party consultant, but subdivision (c) does not entail the appointment of the consultant as a special master or other court officer. The court, for example, may not be inclined to appoint the consultant as a master or the parties may prefer to control the consultant directly. Draft Standard 32(c) is also similar to subdivision (b) in that it envisions the entry of an order providing that review of intentionally-produced privileged data will not effect a waiver. But the reviewing party under subdivision (c) is an agreed-on consultant, not the opposition.

In current practice, there is no assurance that the stipulated order providing that inadvertent production does not effect a waiver will be effective against a claim of waiver asserted by a third party. Precisely the same risk is posed by the order envisaged by Standards 32(b) and (c). Accordingly, it is imperative that litigants following either of these routes also have in place a confidentiality order as a second line of defense against inquisitive third parties. It is equally important that the litigants develop a protocol for, or otherwise instruct, the consultant to minimize the likelihood that the consultant will actually review (as opposed to extract) privileged material.

Draft Standard 32(d) sets forth a pair of alternative procedures for the parties to consider with respect to the review of the data once the data have been extracted. Subdivision (d)(i) states that traditional approach, in which the extracted data are furnished to the producing party, who then conducts a review for responsiveness and privilege, and makes production of the data together with a privilege log.

Standard 32(d)(ii) identifies an unconventional approach that some parties prefer for financial reasons, as where there is an enormous amount of electronic data, little of it is likely to be either responsive or privileged, and little of that will fall in both categories. Under the (d)(ii) approach, the requesting party first reviews the data for responsiveness and provides to the producing party all data in which it is interested. The producing party then determines if any of the data in question are privileged. If so, the requesting party may not maintain copies of the privileged material unless and until a court sustains its objections to the claim of privilege.

Under Draft Standard 32(f), even before receiving the data pursuant to 32(d)(ii), the requesting party is to execute an affidavit stating that it will keep no copy of data deemed by the producing party to be privileged, subject to final resolution of any dispute by the court. Similarly, Draft Standard 32(e) provides that any agreed IT consultant is to execute an affidavit confirming that the it will keep no copy of any data and will not disclose any data provided other than pursuant to the court's order or parties' agreement.

Effective Initial Discovery Conferences

The Federal Rules of Civil Procedure require a discovery conference at the outset of every case and prior to the filing of any discovery motion. Practices vary state by state, but this procedure is eminently sensible in connection with electronic discovery, regardless of whether it is compelled. Draft Standard 31 focuses on effective use of discovery conferences to deal with electronic discovery issues. Draft Standard 31(a) specifies several categories of electronic discovery related matters that the parties should confer about at an initial discovery conference. These include:

• Subject matter
• Relevant time period
• Identification of the party-affiliated persons or entities from whom electronic discovery may be sought
• Identification of those persons (including former employees) who are knowledgeable of the information systems, technology and software necessary to access potentially responsive data
• The universe of potentially responsive data that exist, including the platforms on which, and places where, such data may be found (including databases, networks, systems, servers, archives, back up or disaster recovery systems, tapes, discs, drives, cartridges and other storage media, laptops, PCs, Internet data, and PDAs)
• Accessibility issues, such as the software that may be necessary to access data
• Whether potentially responsive data exist in searchable form
• Whether potentially responsive electronic data will be requested and produced in electronic form or in hard copy
• Data retention policies
• Preservation issues, including preservation of data generated subsequent to the filing of the claim
• Possible use of key terms or other selection criteria to scour massive amounts of data for relevant information

Anticipating the suggestions discussed above with respect to privilege, Draft Standard 31(a)(xii) suggests that the parties discuss whether they can agree on the names of unaffiliated IT consultants who would be capable of serving them jointly. In the same vein, Draft Standard 31(a)(xiii) proposes that they consider whether they want to stipulate to entry of a court order along the lines discussed in Standard 32(b) or (c).

Effective "Meet and Confers"

There are additional issues for the parties to consider once discovery demands have been served and specific issues are on the table. Draft Standard 31(b) recommends that the parties consider stipulating to a court order providing for:

• Initial production, on a without-prejudice basis, of subsets of electronic data to allow the parties to evaluate the likely benefit of production of additional data;
• The use of search terms or other selection criteria in lieu of production; or
• The appointment of an independent consultant pursuant to Standard 32

Public comment on the Standards is invited. The Standards are posted at http://www.abanet.org/litigation/taskforces/electronic/home.html. Comments may be forwarded to the ABA Section of Litigation staff (bblanchard@staff.abanet.org), to gjoseph@josephnyc.com, or to any member of the Task Force (listed on the website, above, that contains the Draft Standards).