e-Discovery under Fed. R. Civ. P.:
A Review and Upcoming Changes
Alyssa McDaniel
Josh Lee
FED. R. CIV. P.
• 26(a)(1)(A)(ii)
• 26(b)(2)(B)
• 26(b)(5)(B)
• 26(f)(3)(C)
• 33(d)
• 34(a)(1)(A)
• 34(b)(1)(C)
• 37(e)
2
Review of the Current Rules
FED. R. CIV. P. 26(a)(1)(A)(ii)
 Initial Disclosure
 Subject to certain exemptions, “a party must, without
awaiting a discovery request, provide to the other
parties” “a copy—or a description by category and
location—of all documents, electronically stored
information, and tangible things that the disclosing
party has in its possession, custody, or control and
may use to support its claims or defenses, unless the
use would be solely for impeachment”
FED. R. CIV. P. 26(a)(1)(A)(ii) (cont.)
 Maggette v. BL Dev. Corp., No. CIV.A. 2:07CV181-M-A,
2009 WL 4346062 (N.D. Miss. Nov. 24, 2009)
 When? Motion for Sanctions prior to pre-trial conference
 Facts?
− Court required that Defendants search electronic databases for responsive
information and produce to the Plaintiffs.
− Defendants failed to do so and could not describe the databases searched, the
search terms, or methods used to search.
 Holding? Court ordered that the parties hire a third-party expert in
e-discovery to determine whether standards for preservation of
electronic evidence met, at Defendants’ cost (including expert
depositions and testimony).
 What Else? Duty to Preserve,
New Rule 37(e) (failure to preserve ESI)
FED. R. CIV. P. 26(a)(1)(A)(ii) (cont.)
 Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 906
F. Supp. 2d 399, 412 (W.D. Pa. 2012)
 When? Motion in Limine on eve of trial
 Facts?
− Plaintiff had a duty to disclose documents relevant to its’ compliance with 35 U.S.C.
§287 (limitation on pre-suit damages in patent case) as to its patent.
− It failed to do so during discovery period.
 Holding? Court excluded Plaintiffs’ evidence of pre-suit damages
because Plaintiffs could not first show evidence of compliance with
§287 (a prerequisite for pre-suit damages)
 What Else? Rule 26(e) continuing obligation to
supplement, Rule 37(c)(1) exclusion of information at trial
FED. R. CIV. P. 26(b)(2)(B)
 Limitations on Electronically Stored Information
 “A party need not provide discovery of electronically stored
information from sources that the party identifies as not
reasonably accessible because of undue burden or cost. On
motion to compel discovery or for a protective order, the party
from whom discovery is sought must show that the information
is not reasonably accessible because of undue burden or cost.
If that showing is made, the court may nonetheless order
discovery from such sources if the requesting party shows good
cause, considering the limitations of Rule 26(b)(2)(C). The court
may specify conditions for the discovery.”
FED. R. CIV. P. 26(b)(2)(B) (cont.)
 Apple Inc. v. Samsung Electronics Co., No. 12-CV-0630-LHK
(PSG), (N.D. Cal. Aug. 14, 2013)
 When? Motion to Compel financial documents during Discovery
 “Apple argues broadly that it would be immensely burdened by an order
requiring it to compile the reports required by Samsung's demands because
doing so would engage ‘multiple financial groups’ in what is ‘likely [to be]
several months of coordinated effort.’ The court is generally dubious of
such generalized claims of burden in complying with discovery
obligations.”
 “But there is an additional, more persuasive reason to limit Apple's
production—the court is required to limit discovery if ‘the burden or
expense of the proposed discovery outweighs its likely benefit.’ This
is the essence of proportionality—an all-to-often ignored discovery
principle.”
 Holding? Unpersuaded by Apple’s “undue burden” argument, but ordered
that Apple did not need to produce documents where the burden was
disproportionate to the benefit of producing them.
 What Else? Rule 26(b)(1) (proportionality in scope of discovery)
FED. R. CIV. P. 26(b)(1)
 Scope in General. Unless otherwise limited by court order, the
scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be
discoverable.
FED. R. CIV. P. 26(b)(5)(B)
 Information Produced
 “If information produced in discovery is subject to a claim of privilege
or of protection as trial-preparation material, the party making the
claim may notify any party that received the information of the claim
and the basis for it. After being notified, a party must
 Promptly return, sequester, or destroy the specified information
and any copies it has;
 Must not use or disclose the information until the claim is resolved;
 Must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and
 May promptly present the information to the court under seal for a
determination of the claim.
The producing party must preserve the information until the claim is
resolved.”
FED. R. CIV. P. 26(b)(5)(B) (cont.)
 Mt. Hawley Ins. Co. v. Felman Prods., Inc., 271 F.R.D. 125
(S.D. W. Va. 2010)
 When? Defendants’ Motion for Protective Order in the context of “massive
production of e-discovery”
 Facts?
− Felman produced a privileged email to Defendants but did not realize it had done so until
Defendants attached the email to a motion to amend their answer to add a counterclaim.
− Felman argued that Defendants should have notified Felman of the privileged document
and not placed it on the public record.
− Felman demanded that Defendants (1) return the email, (2) destroy all copies, and (3)
review the rest of Felman’s production for similar, inadvertently produced documents.
 Holding? (1) Defendants did not need to notify Felman of the email
prior to using it. (2) Email did not need to be returned because Felman
waived the attorney-client privilege with regard to the email when it
produced the email to Defendants.
 What Else? Inadvertent disclosure, Fed. R. Evid. 502(b).
FED. R. CIV. P. 26(f)(3)(C)
 Discovery Plan
 “A discovery plan must state the parties’
views and proposals on…any issues
about disclosure or discovery of
electronically stored information,
including the form or forms in which it
should be produced[.]”
FED. R. CIV. P. 26(f)(3)(C) (cont.)
 Romero v. Allstate Ins. Co., 271 F.R.D. 96 (E.D. Penn. 2010)
 When? Plaintiffs’ Motion to Compel Documents
 Facts?
− Allstate reorganized its sales agent program such that 6,300 employees would have their
employment contracts terminated.
− Employees brought suit, and summary judgment was granted in favor of Allstate. Third
Circuit reversed and remanded, noting that Plaintiffs should be allowed additional discovery
regarding whether Releases signed by employees were valid.
− Plaintiff’s Motion to Compel: Defendants objected to the extent that Plaintiffs sought an
order compelling Allstate to confer about additional relevant custodians and search terms,
and what searches Allstate conducted in the past, “so that Plaintiffs receive all relevant
documents concerning the Release.”
 Holding? Court expects the parties to agree on “search terms, date
ranges, key players and the like” as part of discovery plan. Court ordered
the parties to confer and agree on “essential details” about the search
methodology they planned to use for future production of ESI.
FED. R. CIV. P. 33(d)
 Option to Produce Business Records
 “If the answer to an interrogatory may be determined by
examining, auditing, compiling, abstracting, or
summarizing a party's business records (including
electronically stored information), and if the burden of
deriving or ascertaining the answer will be substantially
the same for either party, the responding party may
answer by:
− (1) specifying the records that must be reviewed, in sufficient detail to enable the
interrogating party to locate and identify them as readily as the responding party
could; and
− (2) giving the interrogating party a reasonable opportunity to examine and audit the
records and to make copies, compilations, abstracts, or summaries.”
FED. R. CIV. P. 33(d) (cont.)
 Not a shortcut. Verification is required!
FED. R. CIV. P. 33(d) (cont.)
 L.H. v. Schwarzenegger, No. CIV S06-2042 LKK GGH,
2007 WL 2781132 (E.D. Cal. Sept. 21, 2007)
 “[U]nder Rule 33(d), the responding party chooses to produce
business records in answer to the interrogatories—not to avoid
answering them. To answer an interrogatory, a responding party
has the duty to specify, by category and location, the records from
which answers to interrogatories can be derived.”
 “The point of Rule 33(d) is that when reference to specific records
is made, the rule requires a verification that the information
requested is contained therein, not that it ‘might be,’ or ‘could be.’
Of course, when such nebulous assurances are made as were
made here, when it comes to trial or summary judgment,
defendants would object to the foundation of the statistics used by
plaintiffs thereby reaping an improper windfall from their improper
responses.”
FED. R. CIV. P. 34(a)(1)(A)
 Requests to Produce
 “A party may serve on any other party a request within the
scope of Rule 26(b) to produce and permit the requesting
party or its representative to inspect, copy, test, or sample
the following items in the responding party's possession,
custody, or control: any designated documents or
electronically stored information—including writings,
drawings, graphs, charts, photographs, sound recordings,
images, and other data or data compilations—stored in
any medium from which information can be obtained
either directly or, if necessary, after translation by the
responding party into a reasonably usable form.”
FED. R. CIV. P. 34(a)(1)(A)
vs.
 United States v. Capitol Supply, Inc., 27 F. Supp. 3d 91, 104
(D.D.C. 2014)
 Facts?
− U.S. requested that CSI produce documents in .DBF, .MBD, or .XLS format.
− Instead, CSI produced tens of thousands of responsive documents in .PDF
and .EDI format, “just as it received these documents from the Government.”
− U.S. argued these were “not in as usable a format as one that would allow for
searches to identify and easily extract information subject to appropriate
queries.”
 Holding? “[T]o the extent that CSI has retained information
responsive to the subpoenas, it is required to produce that
information in a format that is reasonably usable, which
includes searchable, just as its databases are presumably
designed to respond to search queries.”
FED. R. CIV. P. 34(b)(1)(C)
 Contents of Requests to Produce
 “The request [to produce]…may specify the
form or forms in which electronically stored
information is to be produced.”
FED. R. CIV. P. 34(b)(1)(C) (cont.)
 In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes
Prods. Liability Litigation, 279 F.R.D. 447 (S.D. Ohio 2012)
 When? Plaintiffs’ Motion for Entry of Order Regarding
Production of ESI in the context of jurisdictional discovery
 Facts?
− Proposed Stipulation Establishing Electronic Discovery Protocol: (1)
Produce ESI in native format with associated metadata; (2) if native format
is not possible or advisable, produce ESI in TIFF or PDF with a file
containing specific metadata.
− Porsche wanted to produce documents in native format and with
metadata only if Plaintiffs demonstrated a “particularized need” for it.
 Holding? Court ordered Porsche to produce documents in
their native format with associated megadata; Porsche had
not met is burden of showing undue hardship or expense in
doing so.
FED. R. CIV. P. 37(e)
 Failure to Provide Electronically Stored Information
 “Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party for failing
to provide electronically stored information lost as a result
of the routine, good faith operation of an electronic
information system.”
Committee Note (2015):
– “This limited rule has not adequately addressed the serious problems resulting
from the continued exponential growth in the volume of such information….
These developments have caused litigants to expend excessive effort and
money on preservation in order to avoid the risk of severe sanctions if a court
finds they did not do enough.”
Changes to e-Discovery Rules
Effective December 1, 2015
FED. R. CIV. P. 37(e)
 FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.
 If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve
it, and it cannot be restored or replaced through additional
discovery, the court:
− (1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
− (2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation may:
− (A) presume that the lost information was unfavorable to the party;
− (B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
− (C) dismiss the action or enter a default judgment.
FED. R. CIV. P. 37(e)
 Committee Note Highlights
− The rule does not create a new duty: Based on the common
law duty to preserve relevant information when litigation is
reasonably foreseeable.
− What counts as “reasonable steps” to preserve ESI? The
answer depends on:
− The extent to which a party knew of the risk of loss.
− “[T]he party’s sophistication with regard to litigation
experience.”
− No harm, no foul: If the information is restored or replaced
through additional discovery, no further measures should be
taken.
FED. R. CIV. P. 37(e)
 Committee Note Highlights (cont.)
− (e)(1): “Prejudice” requires “an evaluation of the information’s
importance in the litigation”
− Curative measures for “prejudice” ≠ curative measures
for “intent to deprive”
− (e)(2): “Intent to deprive” infers that (1) the ESI was
unfavorable to the producing party, and (2) loss of the ESI
prejudices the requesting party.
− “The remedy should fit the wrong.” E.g., Don’t use (e)(2) if
the lost ESI was relatively unimportant or lesser measures
can redress the wrong.
− The rule does not affect the validity of an independent tort
claim for spoliation if state law authorizes the claim.