Quick peeks, Clawback Agreements, and the rules of electronic discovery

07 Jun Quick peeks, Clawback Agreements, and the rules of electronic discovery

Editor’s note: This is the first in a four-part series of articles regarding the rules that govern the discovery process in a lawsuit and, in particular, the discovery of electronically stored information, or ESI. In Part I, attorney Tim Hansen of the law firm Michael Best and Friedrich will highlight the rule changes, while subsequent articles will explain specific provisions in greater detail.

Recently, the Federal Rules of Civil Procedure (“Rules”) were amended concerning the discovery of electronic information in federal lawsuits. Examples of the changes imposed on the parties, often without awaiting a discovery request, include requirements to:
• Promptly identify or produce ESI, documents, and tangible things in the party’s possession, custody, or control that the party may use to support its claims or defenses.
Under the amended Rule 26, parties will be required to disclose “a copy of, or a description by category the location of . . . electronically stored information” as part of their initial disclosures. In addition, parties will be expected to discuss at the pretrial conference issues regarding the preservation of discoverable evidence, issues related to the disclosure or discovery of ESI, the form(s) in which ESI will be produced, and issues regarding privilege and work-product protections.
• Specify the form in which ESI is to be produced.
The Amended Rule 26 provides that a party need not provide discovery of ESI that it identifies as not reasonably accessible because of undue burden or cost. The burden is on the responding party to show that the information is not reasonably accessible.
The courts may still order discovery if the requesting party can show good cause, and the costs are outweighed by the potential benefits of providing the ESI sought. Examples of “not readily accessible” data include legacy data (data stored on obsolete or replaced hardware) and recovery back-up tapes.
• Discuss and make a good faith effort to resolve any and all issues relating to the inadvertent production of privileged and/or confidential material.
For example, parties may agree to “quick peeks” where a party produces documents under an agreement that no privilege or protections are waived.
Under a Clawback Agreement, the parties agree that documents will be produced without any intent to waive privilege or protections; however, if a privileged document is inadvertently produced, the producing party must inform the receiving party, who in turn must return the document and not use it in the litigation.
• Address whether your company will be afforded “safe harbor” should ESI be lost because of routine operation of your company’s computer systems and/or record retention/destruction policies. This issue will be addressed in the next article.
The amendments affect other rules governing subpoenas, interrogatories, and inspections. The time to discuss these changes with your attorney is not after a lawsuit is filed. Engage in a candid and detailed discussion now, before litigation arises.
Policies in place
Early communication with your attorneys will help ensure you have an effective document-retention policy in place, including litigation hold procedures and action plans for information technology specialists.
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