The Impact of the New E-Discovery Rules

Article

William R. Denny, John A. O'Connell, Elizabeth J. King

Introduction

On December 1, 2006, revised Federal Rules of Civil Procedure will go into effect.[2]  Those rules address the impact of electronically stored information on discovery, and represent a complete rethinking of the approach taken to electronic “data compilations” in the 1970 revision to the Rules.[3]  While the rules do not make wholesale changes to the traditional discovery process, they require attorneys, both litigators and transactional practitioners, to be aware of potential issues involving electronically stored information.  Intellectual property lawyers, in particular, should examine their own practices in order to be certain that routine electronic document management practices do not create future litigation issues.[4]

Generally, the new federal rules establish notice requirements and default approaches to electronic discovery, with an emphasis on dialogue and agreement between the litigating parties.[5]  The new rules also explicitly acknowledge the special nature of electronically stored information and its potential impact on both litigants and nonparties.[6] 

Local rules of the District of Delaware impose even greater responsibilities on the litigants to agree on electronic discovery matters.[7]  Additionally, the District of Delaware rules provide more concrete electronic discovery guidance than the new Federal Rules when parties do not come to agreement.[8]

I. The New Federal Rules of Civil Procedure Covering Electronic Discovery

The 2006 revision of the Federal Rules of Civil Procedure concerning electronic discovery affects Rules 16, 26, 33, 34, 37, and 45.[9]  The new rules offer a broad definition of electronic discovery, mandate early consideration of electronic discovery issues, provide for consideration of cost issues specific to electronic discovery, and provide a safe harbor for following a document retention plan in good faith.[10]

A. Definition of Electronically Stored Information: Rule 34(a)

The 2006 revision to the Federal Rules of Civil Procedure uses the term “electronically stored information” to describe materials subject to electronic discovery.[11]  The drafters of the rules intended this term to be broad, capable of covering both the current state of technology and future developments in data storage technology.[12]  Specifically, they stated that revised Rule 34(a)’s “electronically stored information” could consist of data stored “in any medium,” and is intended to have as broad a reach as the term “document.”[13]  In fact, the Committee Notes state that throughout the rules, where the term “document” occurs alone, it is presumed to include electronically stored information.[14]

The same definition of electronically stored information applies throughout the revisions to the Federal Rules of Civil Procedure.[15]  The drafters’ Committee Notes on the revised rules invariably refer to the definition of electronically stored information in Rule 34(a) as the functional definition.[16] 

The older terminology for electronically stored information in the rules, “data compilations,” remains as a subset of the broader terms “documents” and “electronically stored information.”[17] 

B. Electronically Stored Information That is Not Reasonably Accessible: Rule 26(b)(2)(B)

The revised rules limit the scope of discovery of electronically stored information according to its accessibility.[18]  Under the Federal Rules of Civil Procedure, the scope of discovery in litigation is broad.[19]  Any relevant document, tangible object, or witness is generally discoverable if the item or person may lead to admissible evidence and is not privileged.[20]  According to the revised rules, the list of discoverable items now explicitly includes electronically stored information.[21]  Electronically stored information “not reasonably accessible because of undue burden or cost” is carved out of the general discovery rules in the revised Rule 26(b)(2)(B).[22]

The revised rules themselves do not further define “reasonably accessible” electronically stored information.[23]  The Committee on Rules of Practice and Procedure indicated that “not reasonably accessible” should be interpreted to mean information that presents an undue burden or cost on the producing party.[24]  Examples given in the Committee Report are: backup tapes, legacy data, deleted data, and databases requiring reprogramming to deliver requested data.[25] 

The Committee envisioned the revised rules to create a “two-tier” system for electronic discovery.[26]  The system encourages parties to proceed first with discovery of accessible electronically stored information, with the burden on the responding party to identify inaccessible sources of information.[27]  Once identified, the party seeking discovery may file a motion to compel, and then the responding party must show that the source of information is inaccessible due to undue burden or cost.[28] 

A finding that the source of information is inaccessible does not exempt a source of information from discovery if the requesting party can show “good cause.”[29]  Demonstrating good cause requires a showing that the request is not cumulative, the information is not more easily accessible elsewhere, the information is not obtainable through other discovery processes, or the burden of production does not outweigh its likely benefit.[30]  Weighing the burden against the likely benefit to the party moving to compel requires the court to examine “the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”[31]

C. Discovery Planning: Rule 26(f)

The revised rules make several changes to the discovery planning process.  The new rules require the parties to address the issue of electronically stored information in the discovery planning conference required by Rule 26(f), twenty-one days before the scheduling conference with the court.[32]  Parties must discuss any known issues related to electronically stored information, and must also discuss the form of production for such information.[33]

D. Initial Disclosures: Rule 26(a)(1)(B)

Parties litigating in federal courts must produce initial disclosures after litigation commences, but prior to receiving formal discovery requests.[34]  Among the initial disclosure requirements is the production of materials relevant to claims or defenses raised by the parties in their complaint or answer.[35]  The revision to the Federal Rules of Civil Procedure changes these disclosures in order to explicitly include electronically stored information within the scope of initial disclosures.[36]

E. Scheduling Orders: Rule 16(b)(5)

Rule 16 of the Federal Rules of Civil Procedure has been revised to include electronic discovery as one of the topics that the court’s scheduling order may address.[37]  The rationale for this change is to impress on litigants and courts that early agreement on electronic discovery can avoid costly disputes after discovery begins.[38] 

F. Privilege Issues: Rules 26(b)(5)(A) and 26(b)(5)(B)

Reviewing discovery for privilege prior to production to the opposing party consumes large quantities of time and resources.[39]  To address this issue, the revised rules provide a procedure for managing privilege issues that arise in the course of discovery.[40]  Though this change is not directly related to electronic discovery, the large quantities of material generated through electronic discovery clearly form a burden that the revised rules seek to alleviate. 

The revised rules permit a disclosing party to notify the other party within a “reasonable time” that privileged material has been disclosed.[41]  The receiving party must then sequester or destroy the material described, pending a ruling from the court on the privilege.[42]  The new rules do not change the law of privilege, and mere production may still waive the privilege.[43]  The main effect of the new amendments is to create a process for handling claims of inadvertent production of privileged documents.[44]

G. Interrogatories: Rule 33(d)

The revised rules permit a party to respond to an interrogatory by providing access to electronically stored information rather than by composing an answer to the interrogatory.[45]  In order to respond in this manner, the responding party must adequately specify the electronically stored information in which the answer may be found, and the receiving party must be able to find the answer as easily as the responding party.[46]

H. Production of Electronically Stored Information: Rule 34

Revised Rule 34 adds electronically stored information to the list of items that must be produced as part of discovery.[47]  The revised rules also provide procedures for determining the form of electronically stored information and a default form in the absence of agreement.[48]

A party may request that electronically stored information be produced in a certain form in its discovery request, and the producing party may object to that form.[49]  The producing party must respond to the discovery request within thirty days and indicate in what form it will produce the electronically stored information.[50]

The default form for electronically stored information is either the form the information was originally stored in, or a form which is reasonably usable.[51]  The Committee Notes on the revised rules indicate that a “reasonably usable” form should not make the information more burdensome to use, and if the original documents permitted text searches, the “reasonably usable” form should, as well.[52]

The revised rules also contemplate that some electronically stored information may need to be converted into another “reasonably usable” format in order to be produced.  Although the text of the new Rule 34(a) uses the term “translate” for this conversion, this conversion was not intended to include translation between one spoken or written human language into another.[53]

I. Good Faith, Routine Operation of Electronic Information Systems: Rule 37(f)

The new rules attempt to ameliorate the strict requirements of document retention in an electronic world with the realities of electronic systems.[54]  New Rule 37(f) restricts the applications of sanctions to exceptional circumstances if the “routine, good faith operation of an  electronic information system” prevents a party from producing electronically stored information.[55]

To avail themselves of this safe harbor, however, the Committee Notes indicate that litigants must fulfill their litigation hold duties.  That means interfering with the operation of an electronic information system in order to preserve documents as required when a reasonable anticipation of litigation arises.[56]  Litigants may not hide behind the routine operation of an electronic information system to defeat an opponent’s discovery and still comply with the good faith standard of Rule 37(f).[57]

J. Electronically Stored Information and Subpoenas: Rule 45

Revised Rule 45 includes electronically stored information among the types of things that can be the subject of a subpoena.[58]  Generally, the treatment of electronically stored information that is the subject of a subpoena parallels the treatment of electronically stored information in a discovery request: a form may be specified, objected to, and in the absence of a specification, a form which is at least reasonably usable must be produced.[59]

Some protections against undue burdens in the new Rule 45 protect nonparties from the costs of electronic discovery.  Subpoenas served on nonparties must reasonably attempt to avoid burdening the nonparty, the nonparty may object, and the nonparty receives significant protection against the costs of inaccessible information production.[60]

II. The District of Delaware’s Default Standards for Discovery of Electronic Documents

Prior to the Supreme Court’s order approving the revised Federal Rules of Civil Procedure covering electronic discovery, the District of Delaware instituted its own local rules on electronic discovery.[61]  The District of Delaware’s Default Standard for Discovery of Electronic Documents imposes a gap-filling rule which covers electronic discovery unless the parties form an agreement on conducting electronic discovery.[62]  If the parties do form an agreement on conducting electronic discovery, it would supersede the default rules.[63]  The Default Standard covers electronic discovery issues at the Rule 26(f) discovery conference, the requirement for an e-discovery liaison, the sequence of electronic discovery, search techniques used in electronic discovery, the format for electronic document production, electronic document retention, treatment of privileged electronic documents, and the apportionment of electronic discovery costs.[64]  Some of these requirements differ from the revised Federal Rules by imposing greater restrictions on litigants’ options in the absence of an agreement.

A. Rule 26(f) Discovery Conference

The Default Standard requires that parties exchange information on electronic discovery prior to the Rule 26(f) discovery conference.[65]  Parties must name and describe the most likely custodians of electronic materials, provide a description of electronic systems used, indicate whether any electronic information may be limited accessibility information, produce a description of the electronic document retention policies employed, name both an electronic retention coordinator and an e-discovery liaison, and supply notice of any issues anticipated in electronic discovery.[66]

Parties must also notify the court at the Rule 16 scheduling conference of the electronic discovery likely to take place.[67]  Should any issues arise regarding these electronic discovery disclosures, the court will resolve them at the scheduling conference.[68]

The Default Standard requires slightly greater detail in the discussion of electronic discovery than the revised Federal Rules.  Amended Rule 16, for example, only lists discovery of electronically stored information as an optional item that can be addressed in a scheduling order.[69]  Naming the particular individuals responsible for retention and liaison are the major differences between the Federal Rules and the Default Standard.

B. E-Discovery Liaison

As part of their disclosures prior to the Rule 26(f) discovery conference, parties must appoint an “e-discovery liaison” according to the Default Standard.[70]  The e-discovery liaison serves as a party’s communication clearinghouse for electronic discovery issues.[71]  The e-discovery liaison must understand the electronic systems used by the party, familiarize herself with the technical aspects of electronic discovery, and prepare to participate in electronic discovery dispute resolutions.[72]

The revised Federal Rules do not require the appointment of an e-discovery liaison, though they do not forbid such a practice.  Either side in litigation, however, would be well-served to make certain that at least one person on the legal team can comprehend and communicate effectively regarding technical issues in electronic discovery.

C. Sequence of Electronic Discovery

The Default Standard provides a timed sequence of events for electronic discovery, should the parties not agree to a timetable of their own.[73]  Upon receiving a document request, a party will search and produce responsive documents that are not limited accessibility documents.[74]  If a document request is “narrowly focused” and has “some basis in fact supporting the request,” searches of limited accessibility documents will occur.[75]  In order to perform a Rule 34(b) inspection of electronic media, a party must show exceptional circumstances through (1) good cause and (2) a specific need.[76]

The revised Federal Rules envision a two-tier process similar to that of the Default Standard.[77]  Discovery of accessible sources would proceed while the parties negotiated or brought motions before the court concerning inaccessible information.

The Default Standard differs from the way the Federal Rules consider inspection of electronic media and readiness of access to inaccessible sources.  The Federal Rules do not treat electronically stored information differently from traditional documents with regard to inspection under Rule 34(b).[78]  The Federal Rules, in fact, envision parties freely allowing inspection or access to electronic systems to speed response to interrogatories.[79]

The provision in the Default Standard for producing inaccessible electronically stored information differs significantly from the revised Federal Rules, and does not serve to protect parties from undue burden and expense as required in the new Federal Rule 26(b)(2).[80]  To the extent that the Default Standard does not protect parties’ interests in this way, by allowing production of inaccessible electronic information without providing some protections for the parties, it is likely that the Default Standard of the District of Delaware would be read to add its narrow focus and factual basis requirements to the new Federal Rules requirements.[81]

D. Search Techniques

The Default Standard requires that any party utilizing an electronic search on electronic documents must disclose “any restriction as to scope and method” limiting the search.[82]  Parties must also agree on the method, words, terms, and phrases used in the searches.[83]  The Default Standard requires the assistance of the e-discovery liaison with search methodology discussions.[84]

The revised Federal Rules do not discuss particular notice requirements for electronic searches, and do not specify a particular person responsible for facilitating discussion.

E. Format of Electronic Documents

In the absence of any agreement between the parties on the format of documents for electronic discovery, the Default Standard specifies both a format and procedures for requesting a different format.[85]  Under the Default Standard, electronic documents are produced as TIFF or PDF image files.[86]  The producing party must preserve the formatting of the document, its metadata, and the document’s revision history.[87]  In order to receive a document in its native format, “a party must demonstrate a particularized need.”[88]

New Federal Rule 34 requires that in the absence of agreement between the parties, a party must produce at least reasonably usable electronically stored information.[89]  The Committee Notes on Rule 34 indicate that in order for a document to be reasonably usable, it must be electronically searchable if the original was electronically searchable.[90]  The Default Standard does not preserve this requirement, and sets the default format as image files which may not be easily searchable electronically, such as TIFF files.[91]  To the extent an image format preserved reasonable usability similar to the original document, however, there would be no conflict between the Default Standard and revised Federal Rule 34.

F. Retention

Each party must designate a “retention coordinator” to avoid spoliation of evidence under the Default Standard.[92]  Specifically, a retention coordinator must prevent permanent deletion of email and alteration of electronic documents, and also provide notice to the other party about email filtering criteria that could affect transmission of emails or attachments.[93]

The Default Standard also encourages parties to practice conscientious electronic document retention in several other ways.[94]  Retention coordinators must implement the required litigation hold procedures within seven days of identifying the correct document custodians, and counsel must then file a “statement of compliance” with the court.[95]  Within thirty days of beginning discovery, the parties are to negotiate toward an agreement specifying the retention requirements for electronic documents.[96]  Finally, the Default Standard allows for Rule 30(b)(6) depositions of retention coordinators to document procedures and actions to avoid later discovery disputes.[97]

The Federal Rules do not require the appointment of a retention coordinator on each side of the litigation, but do not prohibit such an appointment.  As with the District of Delaware’s requirement of an e-discovery liaison, a retention coordinator is probably consistent with best practices, and responsible parties should be certain that someone controls litigation hold and electronic retention efforts regardless of the Default Standard’s applicability.

G. Privilege

The Default Standard provides for certain minimal protections of inadvertently discovered electronic documents.[98]  First, any document which is obviously privileged “on [its] face” must be returned.[99]  Second, a party may send notification to the other party within thirty days of inadvertent production of privileged materials.[100]  The Default Standard, however, does not explicitly state that the return of facially privileged information or later notification of inadvertent production prevents waiver of privilege for the produced documents.

Revised Federal Rule 26(b)(5) does not conflict with the approach of the Default Standard, and differs mostly in that it specifies a reasonable period instead of the thirty-day notification period for inadvertent production of privileged materials.[101]

H. Costs

In the matter of apportioning costs, the District of Delaware’s Default Standard simply states that apportionment will only occur upon a showing of “good cause.”[102] 

The Federal Rules follow much the same approach as the District of Delaware, requiring good cause shown by the requesting party in order to search inaccessible electronically stored information, and using the good cause inquiry to inform the court’s decision as to setting any cost-shifting of discovery.[103]  The only difference between this approach and the Default Standard is the easier access to inaccessible information under the Default Standard.

III. Caselaw

Many of the principles embodied in the revised Federal Rules and the District of Delaware’s Default Standard first arose in cases in which discovery of electronically stored information became the primary concern in the litigation.  While these cases were not specifically about intellectual property, the same issues regarding spoliation of evidence and the potential remedies for spoliation exist in the intellectual property context.

A. Zubulake v. UBS Warburg LLC

In Zubulake, an employee sued her employer for gender discrimination and retaliation.[104]  The employer, when served with a discovery request for relevant email, failed to produce a substantial quantity of email that Zubulake had in her possession, thus indicating that the employer’s response to the discovery request was insufficient.[105]  Eventually, Zubulake discovered that the employer deleted email, failed to produce even more responsive email, and that the email that had not been produced contradicted the sworn testimony of the defendant’s employees regarding Zubulake’s firing.[106]

The final Zubulake decision described the requirements of a litigation hold in the context of electronic information systems, and demonstrated that an adverse jury instruction was a proper remedy for spoliation of evidence in the electronic discovery context.[107]  The jury instruction ordered by the judge stated:

If you find that UBS could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS.[108]

B. Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc.

In Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc.,[109] the trial court held that a defendant that failed to produce electronic discovery and destroyed electronic evidence would both bear the burden of proof that it had not committed fraud and that the jury would hear an adverse instruction concerning the spoiled evidence.[110]  The defendants in the case failed to locate and search all of the backup tapes available, knowingly executed a false certification that electronic discovery had been completed, overwrote email, and conducted searches in electronic data using flawed software.[111]

The adverse inference instruction and shifting of the burden of proof in the case were only some of the sanctions eventually imposed by the court, which also restricted Morgan Stanley’s defense at trial.[112]  The verdict returned by the jury totaled $1.6 billion, demonstrating the dangers of mishandling electronic discovery.[113]

IV. E-Discovery Landscape for Transactional IP Lawyers

The primary concerns for any transactional practitioner regarding electronic discovery are to respond knowledgeably to discovery requests and avoid spoliation of evidence.[114]  The potential remedies are severe, including adverse inference jury instructions and shifting the burden of proof in a case.[115]  In order to avoid such problems in litigation, practitioners should be aware of potential litigation problems that may arise due to ordinary business activities.

A. Intellectual Property Issues

The availability of electronic discovery and the new rules surrounding its request and production affect intellectual property (“IP”) litigation in much the same manner that it affects other litigation.  With the advent of email, a great deal of communication that previously would not have been written down is now available for discovery.[116]  Other forms of electronically stored information also increase opportunities for discovery, too, as older documents are not deleted according to retention plans.[117] 

Although the effect of the new Federal Rules on practitioners cannot be evaluated yet as they do not go into effect until December, 2006, the effect of the District of Delaware Default Standard has been to bring parties into agreements about electronic discovery in order to avoid reliance on the gap-filling District of Delaware rules.  This increases the importance of communicating concerns about privilege and confidential information (such as trade secrets) to litigation counsel before counsel finalizes an agreement on discovery issues.

Certain document formats create problems in discovery due to their dissimilarity with traditional paper documents, such as electronic databases.  The standard format for electronic discovery between litigants is an image format, such as PDF or TIFF, though concerns about reasonable usability may change this standard after the new rules take effect.[118]  When electronic databases get produced to the other party as table images, the other party may need a small sample of the database produced in order to demonstrate how the data relates within the structure of the database.[119]

Finally, the District of Delaware makes available a panel of special masters to hear discovery disputes in intellectual property cases.[120]  While the establishment of the panel of special masters is not directly related to electronic discovery, the panel provides for the availability of litigation experts to address electronic discovery issues in intellectual property cases.  The experience of litigators, however, indicates that the cost of the special masters is great enough to make their use relatively rare.

B. Document Management Plan

The good faith, routine operation of an electronic information system that deletes information not relevant to potential or actual litigation receives safe harbor treatment under the new Federal Rule of Civil Procedure 37(f).[121]  Organizations should implement and follow a document management plan that adheres to the principles of this rule. 

Such a document management plan should not be implemented as part of a litigation strategy in a particular case.[122]  Instead, it should be part of a general best information practices program.  Any document management plan should incorporate a system through which counsel can interrupt the destruction of relevant documents as soon as litigation is reasonably anticipated.[123]

An example of a document management plan that would not qualify for safe harbor treatment under revised Rule 37(f) is the “Shred Day” document management program described in Rambus, Inc. v. Infineon Technologies AG.[124]  The court in that case concluded that Rambus developed the “Shred Day” policy in order to eliminate discoverable materials prior to filing a patent infringement suit, and that the policy amounted to spoliation of evidence.[125]  Such a program was most likely not devised or carried out in the good faith required by Rule 37(f); in fact, the court found that the crime/fraud exception to the attorney-client privilege applied to any documents related to the “Shred Day” program used by Rambus.[126]

C. Attachment of Duty to Preserve Documents

Document preservation should begin when a party can reasonably anticipate litigation.[127]  Transactional practitioners should be aware that when potential litigation arises, steps must be taken to interrupt the routine processes of electronic information systems in order to preserve relevant materials for eventual discovery.[128]

D. Inaccessible Electronic Information is Not a Refuge From Discovery

Organizations should not attempt to utilize more inaccessible forms of data storage as a litigation strategy.  Not only do the Committee Notes for revised Federal Rule 37(f) discourage this and state that sanctions may apply to such an action, but litigants have suffered defeat in similar strategic contexts.[129]

V. Conclusion

The revised Federal Rules on electronic discovery arrive after the litigation landscape has largely adjusted to the issues surrounding electronically stored information.  Intellectual property litigation has also adjusted to the new environment of electronic discovery.

Transactional IP lawyers should be aware of electronic discovery issues that could arise from poor document management practices.  The issues of particular importance to transactional practice are following a document management policy faithfully until the reasonable anticipation of litigation, and then modifying that policy through a proper litigation hold to avoid spoliation of evidence.  Additionally, transactional IP practitioners should be familiar with the types of electronically stored information they work with in order to be aware of issues that might arise when disputes occur over discovering the data contained within the electronic files.

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[1] William R. Denny is a partner with the law firm Potter Anderson & Corroon LLP in Wilmington, Delaware.  Mr. Denny practices principally in the areas of electronic commerce, information licensing, and commercial litigation.  John A. O’Connell was a summer law clerk at Potter Anderson & Corroon LLP in 2006.  The opinions expressed herein are those of the authors and not necessarily those of the firm or its clients.  © 2006  All Rights Reserved.

[2] Order Amending the Federal Rules of Civil Procedure, 126 S. Ct. No. 14, Ct.R-5 (2006).  But see 28 U.S.C. § 2074(a) (LEXIS though May 2006 legislation) (permitting Congress to intervene prior to deadline for rules going into effect).

[3] Judicial Conference of the United States, Committee on Rules of Practice and Procedure, Report of the Civil Rules Advisory Committee, 63 (2005).

[4] David J. Kessler, Electronic Discovery in Intellectual Property Litigation, Intellectual Property Today, Mar. 2006, at 28, 30.

[5] Fed. R. Civ. P. 26(a)(1), 26(f), 16(b).

[6] Proposed Amendments to Rules 26(b)(2), 37(f), 45(c)(1), supra note 2, at 37-38, 76, 86-88.

[7] Ad Hoc Committee for Electronic Discovery of the United States District Court for the District of Delaware, Default Standard for Discovery of Electronic Documents (“E-Discovery”) (May 7, 2004) (hereinafter Default Standard)

[8] Id.

[9] Proposed Amendments to Rules 16, 26, 33, 34, 37, 45, supra note 2, at 17-19, 21-48, 58-59, 60-63, 76, 82-92.  Form 35 has also been revised to cover electronically stored information.  Proposed Amendment to Form 35, supra note 2, at 30-31.

[10] Id.

[11] Proposed Amendment to Rule 34(a), supra note 2, at 60-61. 

[12] Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[13] Proposed Amendment to Rule 34(a), supra note 2, at 60-61; Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[14] Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[15] Proposed Amendment to Rule 34(a), supra note 2, at 60-61; Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[16] E.g., Committee Note to Proposed Amendment to Rule 26(a), supra note 2, at 22.

[17] Proposed Amendment to Rule 34(a), supra note 2, at 60-61; Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[18] Proposed Amendment to Rule 26(b)(2)(B), supra note 2, at 37-39.

[19] Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[20] Fed R. Civ P. 26(b)(1).

[21] Proposed Amendment to Rule 34(a), supra note 2, at 60-61.

[22] Proposed Amendment to Rule 26(b)(2)(B), supra note 2, at 37-39.

[23] Id.

[24] Report of the Civil Rules Advisory Committee, supra note 2, at 34.

[25] Id.

[26] Id. at 34-35.

[27] Id. at 34.

[28] Id. at 34-36.

[29] Proposed Amendment to Rule 26(b)(2)(B), supra note 2, at 38.

[30] Proposed Amendment to Rule 26(b)(2)(C), supra note 2, at 38.

[31] Id.

[32] Proposed Amendment to Rule 26(f), supra note 2, at 22-24.

[33] Proposed Amendment to Rule 26(f)(3), supra note 2, at 23-24.

[34] Fed. R. Civ. P. 26(a)(1).

[35] Fed. R. Civ. P. 26(a)(1)(B).

[36] Proposed Amendment to Rule 26(a)(1)(B), supra note 2, at 21.

[37] Proposed Amendment to Rule 16(b)(5), supra note 2, at 18.

[38] Committee Note to Proposed Amendment to Rule 16(b)(5), supra note 2, at 19-20.

[39] Dennis R. Kiker, Waiving the Privilege in a Storm of Data: An Argument for Uniformity and Rationality in Dealing With the Inadvertent Production of Privileged Materials in the Age of Electronically Stored Information, 12 Rich. J.L. & Tech. 15, 16 (2006).

[40] Proposed Amendment to Rule 26(b)(5), supra note 2, at 47-48; Committee Note to Proposed Amendment to Rule 26(b)(5), supra note 2, at 49-50.

[41] Proposed Amendment to Rule 26(b)(5)(B), supra note 2, at 48.

[42] Id.

[43] Committee Note to Proposed Amendment to Rule 26(b)(5), supra note 2, at 49-50.

[44] Committee Note to Proposed Amendment to Rule 16(b), supra note 2, at 19-20; Committee Note to Proposed Amendment to Rule 26(b)(5), supra note 2, at 49-50.

[45] Proposed Amendment to Rule 33(d), supra note 2, at 58-59.

[46] Id.

[47] Proposed Amendment to Rule 34(a), supra note 2, at 60-61.

[48] Proposed Amendments to Rules 34(a)-(b), supra note 2, at 60-63.

[49] Proposed Amendment to Rule 34(b), supra note 2, at 61-63.

[50] Id.

[51] Proposed Amendment to Rule 34(b)(ii), supra note 2, at 63.  Only one form of electronically stored information, however, is required for production.  Proposed Amendment to Rule 34(b)(iii),supra note 2, at 63.

[52] Committee Note to Proposed Amendment to Rule 34, supra note 2, at 63-68.

[53] Proposed Amendment to Rule 34(a), supra note 2, at 60-61; Committee Note to Proposed Amendment to Rule 34(a), supra note 2, at 63-65.

[54] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78.

[55] Proposed Amendment to Rule 37(f), supra note 2, at 76.

[56] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78; Zubulake v. UBS Warburg LLC, 02 Civ. 1243 (SAS), slip op. at 24-33, (S.D.N.Y. July 20, 2004) (Zubulake V).

[57] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78.

[58] Proposed Amendment to Rule 45(a)(1)(C), supra note 2, at 82.

[59] Proposed Amendments to Rules 45(a)(1), (c)(2), (d)(1)(B), supra note 2, at 82, 86-87, 90.

[60] Proposed Amendments to Rules 45(c)(1), (c)(2)(B), (d)(1)(D), supra note 2, at 86-87, 90-91.

[61] Default Standard, supra note 6, at file properties.  File properties for the District of Delaware’s Default Standard posted on the website of Chief Judge Robinson’s chambers indicate that the PDF file was created on May 7, 2004.  Id.  There is no dated version of the Default Standard posted on the District of Delaware’s website.

[62] Id. at 1.

[63] Id.

[64] Id. at 1-6.

[65] Id. at 1.

[66] Id. at 1-2.

[67] Id. at 1.

[68] Id. at 2.

[69] Proposed Amendment to Rule 16(b)(5), supra note 2, at 18.

[70] Default Standard, supra note 6, at 1-3.

[71] Id. at 2-3.

[72] Id. at 3.

[73] Id.

[74] Id. at 3-4.

[75] Id. at 4.

[76] Id.

[77] Report of the Civil Rules Advisory Committee, supra note 2, at 34-35.

[78] Proposed Amendment to Rule 34(b), supra note 2, at 61-63.

[79] Proposed Amendment to Rule 33(d), supra note 2, at 58-59.

[80] Proposed Amendments to Rules 26(b)(2)(B)-(C), supra note 2, at 38.

[81] Id.

[82] Default Standard, supra note 6, at 4.

[83] Id.

[84] Id.

[85] Id. at 5.

[86] Id.

[87] Id.

[88] Id.

[89] Proposed Amendment to Rule 34(b), supra note 2, at 61-63.

[90] Committee Note to Proposed Amendment to Rule 34, supra note 2, at 63-68.

[91] Default Standard, supra note 6, at 5.  See Aldus Developers Desk, TIFF Revision 6.0, 4 (1992) (defining TIFF as a raster format supporting image storage and not intended primarily for document reproduction).

[92] Default Standard, supra note 6, at 5.

[93] Id. at 5-6.

[94] Id.

[95] Id. at 6.

[96] Id. at 5.

[97] Id.

[98] Id. at 6.

[99] Id.

[100] Id.

[101] Proposed Amendment to Rule 26(b)(5), supra note 2, at 47-48.

[102] Default Standard, supra note 6, at 6.

[103] Proposed Amendment to Rule 26(b)(2)(B), supra note 2, at 37-39; Committee Note to Proposed Amendment to Rule 26(b)(2)(B), supra note 2, at 39-42.

[104] Zubulake v. UBS Warburg LLC, 02 Civ. 1243 (SAS), slip op. at 3, (S.D.N.Y. May 13, 2003) (Zubulake I). 

[105] Zubulake I, at 6-8.

[106] Zubulake V, slip op. at 10-20. 

[107] Zubulake V, slip op. at 24, 40.

[108] Id., slip op. at 48.

[109] 502003CA00504XXOCAI, (Fla. Cir. Ct. Mar. 1, 2005) (order on motion for adverse inference instruction).

[110] Coleman (Parent) Holdings, Inc., 502003CA00504XXOCAI, slip op. at 14-15.

[111] Id., slip op. at 2-9, 11.

[112] Susan Beck, Morgan Stanley’s Recipe for Disaster, Law.com, June 5, 2006,http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1149239119470.

[113] Id.

[114] See Zubulake V, slip. op. at 25-33 (describing the duties of counsel regarding electronic discovery).

[115] Fed. R. Civ. P. 37; Zubulake V, slip op. at 47-49; Coleman (Parent) Holdings, Inc., 502003CA00504XXOCAI, slip op. at Exhibit A.

[116] Id.

[117] Id.

[118] See supra Part I(H) for a discussion of reasonably usable formats for electronically stored information under amended Rule 34.

[119] Id.

[120] Order In re: Procedures to Govern the Appointment of Special Masters to Hear Discovery Disputes in Intellectual Property Cases, District of Delaware, Sep. 15, 2004

[121] Proposed Amendment to Rule 37(f), supra note 2, at 76.

[122] Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280, 298 (E.D. Vir. 2004).

[123] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78; Zubulake V, slip. op. at 24-25.

[124] 222 F.R.D. 280, 291 (E.D. Vir. 2004).

[125] Rambus, Inc., 222 F.R.D. at 291-92, 298.  Rambus’s “Shred Day” events involved filling burlap sacks with documents while pizza, beer, and champagne were served.  Rambus, Inc., 222 F.R.D. at 291.

[126] Id. at 298.

[127] Zubulake V, slip. op. at 25-33; William R. Denny & Elizabeth J. King, Electronic Discovery: Understanding Preservation Obligations, the Potential for Cost-Shifting, and Current Developments § III (2004)

[128] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78.

[129] Committee Note to Proposed Amendment to Rule 37(f), supra note 2, at 76-78.  See, e.g. Rambus, Inc., 222 F.R.D. at 298 (applying crime/fraud exception to attorney-client privilege for plan to spoliate evidence).

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