Feature Stories
FRCP Readiness: 10 Practical Tips for Paralegals
The amended Federal Rules of Civil Procedure (FRCP) place a tremendous amount of responsibility on parties to meet and confer to identify and resolve issues related to the preservation and production of electronically stored information. The rules also reinforce the notion that lawyers must communicate with their clients to become familiar with their clients electronic information systems and document retention policies. These responsibilities will necessarily trickle down to legal assistants and paralegals who that interface with and assist clients in preparing and responding to discovery. The following 10 tips are aimed at giving paralegals and legal assistants a practical approach to readiness for the amended rules.
Tip #1 Read and Understand the E-Discovery Rules and the Committee Notes.
Lawyers who choose to ignore the amendments to the rules or wait until they’re engaged in litigation before earnestly perusing them will be at a distinct disadvantage. The same holds true for paralegals who often are tasked with making important decisions about electronic discovery. Several of the amended rules require action immediately upon the filing of a complaint or service of summons. Paralegals who are not prepared or unfamiliar with the rules, may find themselves unnecessarily grappling with settle nuances while missing the much bigger picture. Being unprepared is a recipe for disaster and may not enable a paralegal to engage in meaningful discussion with attorneys or clients. Waiting to review the requirements imposed by the rules until after litigation commences or after a problem arises, is simply not a viable option.
The amended rules to become intimately acquainted with include:
- Rule 16, which establishes process for the parties and court to address early issues pertaining to the disclosure and discovery of electronic information
- Rule 26, which requires parties to discuss issues of electronic evidence at the discovery-planning conference—inadvertent waiver of privilege, preservation of evidence, form of production
- Rule 33, which specifically calls for a search of electronically stored information in answer to interrogatories involving review of business records
- Rule 34, which adds a new category of discoverable information called “electronically stored information” and gives options for form of production
- Rule 37, which creates a “safe harbor” should electronic evidence be lost because of routine operation of a company’s computer systems
- Rule 45, which outlines conditions for non-party production of electronically stored information
- Form 35, which includes the parties’ proposed discovery plan for electronically stored information
In addition to becoming familiar with the rules, paralegals should take a look at the FRCP committee notes which give specific examples and explain the rationale behind many of the rules.
Tip #2 Understand the Different Types of Evidence Created by Your Clients.
The most noticeable change in the rules related to discovery is the emphasis on electronic data production. Rule 34 defines a new category of discoverable information known as “electronically stored information.” Electronically stored information includes writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations stored in any medium from which information can be obtained or translated. Considering that roughly two-thirds of documents are never put in printed form, the rules encourage the transfer of electronic data rather than making computer printouts. A company that produces data electronically is under no duty to produce the same documents in paper form.
As with traditional paper documents, parties in litigation have an affirmative duty to provide a copy, or description by category and location, of all electronically stored information the party has in its possession, custody, or control that it may use to support its claims or defenses. Parties must also meet and confer early in the litigation process to discuss issues related to the disclosure of electronically stored information, including data preservation and any potential inaccessibility of relevant data. A paralegal who understands the distinction between various data types and can assist in preparing counsel for the meet and confer conference is a valued asset.
Tip #3 Understand the Difference and Impact of Various Data Production Formats.
The rules encourage parties to reach agreement on how documents will be produced. If an agreement cannot be reached, under Rule 34, a document must be produced “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”
Electronic documents bring with them particular characteristics very different from their paper counterparts. Specifically, electronic documents have a dedicated file structure that is assigned to the document’s application. For example, the file structure of a Microsoft® Word document would be unique to the Microsoft Word application. This structure would be its “native format.” However, the comments to the amended rules published on July 25, 2005, explicitly note the disadvantages of native file production, such as the inability to redact (which leads to privilege problems), as well as an inability to Bates-stamp the documents for litigation management and control and an inability to conduct a single search across all document types. These can be significant considerations, particularly in complex or multi-party litigation. In addition, true native files and their metadata can be modified or easily manipulated.
Despite these problems, some commentators have taken the position that Rule 34’s preference for document production in the format in which they are ordinarily maintained means they must be produced as native files. However, this approach ignores not only the literal reading of the rules, but also the practical impact of a purely native production.
Instead, Rule 34 gives parties the option to produce in a form or forms that are “reasonably usable.” Several widely used formats comply with this new rule, including text-searchable TIFF and PDF files. Paralegals should be aware of the various software applications licensed and utilized by the client, as this knowledge will prove invaluable in identifying the types of evidence the company is creating and what form of production makes sense given the amount of data to be processed and the need to review any data for relevance and privilege. This information will assist the paralegal and counsel to communicate effectively with the client about the company’s data production needs early on—in some cases even prior to the commencement of litigation.
Tip #4 Become Familiar with Client’s Document Retention Policies.
Paralegals should know whether their clients have document retention policies in place. It is best to obtain and study a copy of the document retention policy as early in litigation as possible. Every company should have a global document retention policy that limits how long information is kept and sets forth the procedures for uniform and timely destruction of both paper documents and electronic data. The policy should also define what types of information are to be retained and destroyed, where retained information is to be stored, and who shall have access to retained information. In addition, companies must put protocols in place to make sure the retention policy is actively enforced and periodically audited. A good document retention policy may also be a company’s best defense against claims of spoliation by an opposing party. Under Rule 37’s “safe harbor provision,” absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide data lost as a result of routine, good faith operation of an electronic information system.
In developing a legally defensible policy, companies must balance their need for archival information against the expense of storing and maintaining that information. They should also determine what resources the company must allocate to search and review the stored information. Under Rule 26(b)(2)(B), due to undue burden or cost, a company may not need to produce electronically stored information from sources that are not reasonably accessible. Thus, a company’s retention or—more accurately destruction—policy should strive toward an efficient and economical information management system, which in turn will help reduce some of the burden attributed to document production in litigation. Keep in mind that the majority of discovery-related expense is often the time spent by paralegals and attorneys reviewing documents.
Tip #5 Understand Litigation-Hold Principles and Procedures.
The only common law duty to preserve documents and information exists when a company is on notice of pending litigation. At that point, a “litigation hold” must be implemented to retain documents the company reasonably believes would be discoverable. See Zubulake v. UBS Warburg LLC, (Zubulake IV), 2003 U.S.
Dist. Lexis 18771 (S.D.N.Y., Oct. 22, 2003). This duty commonly arises when a party receives a demand letter or summons and complaint. However, the duty may also arise sooner if a party has sufficient information to put it on notice of a credible threat of litigation. Even if litigation is anticipated, a party is not required to halt its entire document retention/destruction program, but only to put in place a litigation hold to ensure relevant documents are preserved.
Id.
Because this obligation is an affirmative one, the company and its officers having notice of the discovery obligation must communicate it to employees in possession of discoverable information. Heng Chan v. Triple 8 Palace, 2005 U.S.
Dist. LEXIS 16520 p. 16 (S.D.N.Y. 2005). It is important to understand that failure to act regarding this affirmative obligation could have dire consequences in litigation. While the obligation may impose a burden upon managers to communicate to key employees, a benefit also exists in preventing sanctions against the company under Rule 37(f)’s safe harbor provision.
Tip #6 Become Familiar with Information Technology.
Very few paralegals, or lawyers for that matter, have technical backgrounds or advanced training on computer storage systems. Those paralegals that are so trained may have an advantage in the short term. But any advantage will be short-lived because others are quickly coming up to speed. In order to effectively meet and confer, lawyers must become familiar with the terminology used by IT personnel. Paralegals also need to become familiar with these terms to meaningfully assist in meet-and-confer preparation of both the lawyer and the client. A working knowledge of terms such as “metadata,” “scrubbing” and “de-duplication” is necessary to communicate effectively with IT personnel, Rule 30(b)(6) witnesses, expert witnesses and retained consultants. A good starting place for learning some of the technical terminology is the Sedona Conference Glossary: E-Discovery and Digital Information Management (www.sedonaconference.org).
Paralegals may also find it beneficial to learn about their client’s data storage systems and the locations of key storage facilities, archives and information technology, as this information may prove vital in the implementation and auditing of the company’s document retention program. This information becomes critical when the need arises to quickly track and locate stored information.
Rule 26(b)(2)(B) draws a distinction between accessible data and that which is not reasonably accessible due to undue cost or burden. Generally, accessible electronic information includes online data that are stored traditionally on a hard drive with relatively easy access. Inaccessible data would generally include erased or fragmented data or obsolete data or storage devices formatted on systems that are no longer supported by the company.
Paralegals should be aware of the company’s backup procedures, including their timing, duration and the format in which the backup data are stored. This information will enable paralegals to assist counsel in the determination of whether the data are easily accessible or whether potentially time-consuming and costly steps must be taken to recover the information.
Tip #7 Be Familiar with Clients' Storage Media Both Internally and Externally.
In addition to the company’s internal computer data and storage systems, paralegals should endeavor to become familiar with any external means and mechanisms used to store and back up information. Paralegals should also determine whether their client uses any third-party companies used to retain, transfer or destroy data. In addition, a paralegal may want to document what procedures the client has in place to track electronic information that may exist outside the company’s storage systems. The task may be particularly daunting given that relevant information may be stored not only on an employee’s office computer and laptop, but also on a personal digital assistant or PDA (e.g., BlackBerry®), smartphone, MP3 player, flash drive or other media storage devices. It is not uncommon for documents to appear in more than one, or even all, of these transient media.
For example, many PDAs are synchronized with an employee’s work computer. If the employee wants to work on a particular project over the weekend, she may email it to her home computer or transfer the data to her iPod® or flash drive. Once at home, the employee uploads the information to her home computer. When finished working on the data, the employee emails the final version to herself, with the document being instantaneously sent as an attachment to her office computer, PDA, smartphone and laptop. It will then remain on all of these devices until deleted, either manually or automatically. If an employee’s work product becomes the subject of litigation, these multiple copies of the document could potentially be relevant as they may evidence different iterations of the document.
Tip #8 Understand the Overall Litigation Strategy and Action Plan for IT Personnel.
Often times, paralegals are called upon to assist in data collection and production. Invariably, questions arise that need to be answered by the client’s IT personnel. Paralegals should not only know who these key players are, but also must understand their role in the litigation. IT personnel may be trained as potential Rule 30(b)(6) whose expertise is called upon to identify and explain all aspects of the company’s computer processing and storage capabilities, including but not limited to: (1) network architecture and usage policies; (2) persons responsible for ongoing operations, maintenance and expansion; (3) backups and document retention; (4) company policies and procedures regarding employee use of computers (including personal computers and mobile devices); (5) types of databases and database software; and (6) email and voicemail systems and related protocols and procedures. This witness will become a trusted adviser to the company’s legal department and a valued resource for paralegals and counsel alike.
Tip #9 Protect Against the Inadvertent Disclosure of Privileged Documents.
More and more parties are being compelled to produce millions of documents that at some point earlier in time were disorganized, existed only on computer hard drives or backup tapes or had never before been put in physical form. The sheer volume of electronic document production makes inadvertent disclosure of a privileged document a serious concern for in-house counsel and litigators alike. The risk of such disclosure is arguably one of the most stressful aspects of document production. Paralegals should know the procedures to prevent inadvertent disclosures and be aware of the relevant rules.
If inadvertent disclosure occurs in litigation, Rules 26(b)(5) and 45(d)(2)(B) require counsel to notify all parties who received potentially privileged documents and to state the grounds for the privilege claim being made. Once notified, the receiving party may not use or disclose the information to third parties until the claim is resolved. The receiving party has the option of promptly presenting the information to the court under seal for a determination of the privilege claim. If the receiving party has already disclosed the information to third parties, it must take reasonable steps to retrieve the information. Issues regarding potential waiver or forfeiture of the privilege claim based on production are reserved for determination by the court.
Tip #10 Communicate with Attorneys to Ensure Prompt Attention to Delays or Problems that Arise.
Given the potential size of data collection, production and review, it is foreseeable, if not inevitable, that something may not go according to plan. When this occurs, paralegals should let the attorneys know immediately so that the obstacle can be identified and the client promptly notified. With the tips articulated above, a well-versed paralegal can assist in the identification of the problem and help the client work through the appropriate solution. A paralegal should never obstruct or cover up problems as communication and good faith are the recurring themes embodied in the amended rules.
Conclusion
Cases are won or lost on discovery issues. The rules require considerably more attention by lawyers, paralegals and legal assistants to the preservation and disclosure of relevant electronic information. Certainly, paralegals who understand these rules will have the upper hand in litigation and will gain the confidence of the lawyers they work with as well as their clients.
Unless noted otherwise, all references to the “rules” are to the Federal Rules of Civil Procedure which were amended on December 1, 2006 to include electronic discovery.
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