ACEDS Latest Version (2023/2024) Already Passed

ACEDS Latest Version (2023/2024) Already Passed US Discovery Standard Broad and Liberal Federal Rules of Civil Procedure The rules controlling procedural matters in civil trials brought before the federal district courts. American rule each party pays its own legal costs Proportionality If burden or expense of proposed discovery outweighs potential benefit, court may impose limits or shift cost. Parties are free to enter into their own agreement. Discovery Request Pleading signed by attorney. Certifies Consistent with FRCP, Non-Frivolous, not for improper purpose (such as harassment), not unreasonable or unduly burdensome. Discovery Response Due within 30 days, formal written response to request alos signed by attorney, certifies objets well founded and in good faith, disclosure is complete and correct at time made. (Most likely not really responding with productions at this time.) Rules 26(f) conference Meet and confer, and develop a "discovery plan" Initial disclosure must include ESI and in some cases like Texas District dealing with Patents--need to be complete. Discovery Plan Subject requiring discovery, timetable for production, format of production, privilege issues (including inadvertent production), limitations on discovery (by rule or agreed to by parties) Preservation Complete and accurate records particularly for preservation and legal hold: witness interview notes, copies of org charts reviewed, legal hold notice, evidence of distribution, follow-up actions Records Management & Preservation Policy: purpose and retention schedule; Must accommodate litigation hod procedures: preservation obligation always supersedes destruction under schedule, once litigation is anticipated, destruction stops. Data Mapping Types of ESI stored, security and access controls, format and reporting capabilities, back-up, archival, purging processes and schedules, and audit trial capabilities. Legal Hold Obligation From common law. Anticipation of litigation, reasonable steps to preserve, failure to preserve can result in spoliation, sanctions can result Potential Sanctions for spoliation Adverse Inference jury instruction, limiting claims or defense, monetary award, default judgement or dismissal Custodian individual who is a party or an employee of a party and is likely to hold relevant ESA Custodial ESI E-mail, storage hardware, network storage, private data storage, social networking sites. Non-Custodial ESI Not owned by a person, data bases, wikis, shared network storage, identify person responsible for each resource Preservation of non-custodial sources Is it overwritten or cumulative? Is it accessed by multiple people? Litigation Hold Plan Identify personnel and assign responsibilities; have written policy and forms, have tracking procedure in place. Legal Hold Notice Written, description of subject matter, examples of ESI storage locations, clear instructions, point person to answer questions, confirmation of receipt and acknowledgement Rule 37(e) 2015 amendment completely replaces old "safe harbor" provision; if lost ESI can be replaced or restored, no sanction; if it cannot be replaced AND if the requesting party is prejudiced, court may order sanctions "no greater than necessary to cure that prejudice"; only upon a finding of intent to deprive another party the information's use in the litigation, court may: order adverse inference or dismiss the case or enter default judgement (Negligence or gross negligence will not be sufficient for imposition of most severe sanctions) FRCP Rule 34 dictates disclosure and discovery related to "producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes." FRCP Rule 26 (a) (1)(A)(i) a party must, without awaiting a discovery request, provide to the other parties: the name, address, and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims of defenses, unless the use would be solely for impeachment. FRCP Rule 26 (a) (1)(A)(ii) 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 info... FRCP Rule 26 (a) (1)(A)(iii) a party must, without awaiting a discovery request, provide to the other parties: a computation of each category of damages claimed by the disclosing party - who must also make available for inspection and copying as under RFCP Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based... FRCP Rule 26 (a) (1)(A)(iV) a party must, without awaiting a discovery request, provide to the other parties: for inspection and copying as under FRCP Rule 34, any insurance agreement under which as insurance business may be liable to satify all or part of a possible judgement in the action or to indemnify or reimburse for payments made to satisfy the judgement. FRCP 26(f) parties must cinfer as soon as practical or at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule FRCP 16(b) FRCP 26(f): Planning for Discovery (meet and confer) Parties must consider: 1) the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case 2) makr or arrange for the disclosures required by FRCP Rule 26 (1)(1), 3) discuss any issues about preserving discoverable information, develop a discovery plan. Submitting the court within 14 days a written report outlining the discovery plan. FRCP Rule 34(a)(1) A party may serve on any other party (even non-party) a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative party to inspect, copy... FRCP Rule 45 subpoena served to non-party for ESI FRCP Rule 30 addresses the taking of a deposition form a corporate entity FRCP Rule 30 (b) (6) rule that covers serving a subpoena on a corporation FCP Rule 26 (b) (2) (B) Cost shifting...cost limiting and proportionality (cost vs. benefits) FRCP Rule 11 Attorney must sign the discovery request and take responsibility