Competencia judicial

In 2006, Rule 26 was amended adding 26(a)(1)(B)22 _{including ESI in the list of information which must be}

disclosed, “without awaiting a discovery request.” This section now appears in Rule 26(a)(1)(A)(ii) after the 2010 amendments.

Rule 26(b) covers the scope and limits of discovery, with rule 26(b)(2)(B) exempting parties from provid- ing ESI where the source is identified as, “not reasonably accessible because of undue burden or cost.”23 _This

echoes the reasoning of the Zubulake I Court in setting out its five categories of accessibility as discussed at 1.1.2 on page 10. The committee notes for this section indicate the rule was designed keeping in mind the specific nature of a technology will affect how burdensome obtaining information from it in discovery will be.24 _{As I will discuss in the case studies in Part II, the limitations of the specific system can have a large im-}

pact on the practicality and effectiveness of a given approach. When paired with the inaccessible/accessible limitations, this sets up a significant potential for conflict over whether a source is inaccessible.

The committee notes also indicate, “[a] party’s identification of sources of electronically stored informa- tion as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.”25 _{The notes describe a system where the producing party may initially identify sources as inac-}

cessible, but must still preserve them should the point be contested or the inaccessibility be overcome by a showing of good cause. They further provide for, when the parties cannot agree, that the issue of accessibility be settled by motion to compel or protective order, but, as is the theme in the amended discovery framework, the parties must confer and attempt to work out their problems before involving the court.

Rule 26(b)(5) recognizes the increased risks of waiving privilege due to the high volume ESI represents and the difficulty ensuring complete review prior to production. It allows the producing party, should they inadvertently produce such information to the opposing party, to attempt to “claw back” that information by notifying the other side of its assertion of a claim of privilege or trial-preparation material. As the committee notes discuss, the rule does not address whether privilege is waived by inadvertent production, but does provide the procedure for resolving such questions.26 _{As we will see,infra, inadvertent production}

22_{[13, (2006) 26(a)(1)(B)](B) a copy of, or a description by category and location of, all documents, electronically stored} information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

23_{[13, (2006) 26(b)(2)(B)] (B) 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.

24_{[13, (2006) Committee note on 26(b)(2)] It is not possible to define in a rule the different types of technological features that} may affect the burdens and costs of accessing electronically stored information. Information systems are designed to provide ready access to information used in regular ongoing activities. They also may be designed so as to provide ready access to information that is not regularly used. But a system may retain information on sources that are accessible only by incurring substantial burdens or costs. Subparagraph (B) is added to regulate discovery from such sources.

25_{[13, (2006) Committee note 26(b)(2)]}

and privilege waivers are a growing problem.

Rule 26(f) in its current form, provides for planning the discovery process and mandates a conference between the parties in establishing the discovery plan. The plan requires the parties to state their views or proposals on a variety of matters including initial disclosures, subjects of the discovery, discovery deadlines or phases, ESI issues including how it should be produced, agreements on procedures for exerting privilege or trial preparation protection, limitations of discovery, and so forth.

2.2.2.1 Expert Testimony / 2010 Amendment

In 2010, Rule 26 was amended with a significant amount of attention to disclosures / discovery involving expert witnesses. The committee notes indicate this was intended to address a problem with the 1993 version of the rules allowing too broad of a discovery into expert communications with counsel.

Many courts read the disclosure provision to authorize discovery of all communications between counsel and expert witnesses and all draft reports. The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen. Attorneys may employ two sets of experts — one for purposes of consultation and another to testify at trial — because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses. At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work. 27

Interestingly, the disclosure requirement under Rule 26(a)(2)(A) and the written report requirement of 26(a)(2)(B) may not apply to forensic experts employed during the discovery process. 26(a)(2)(A) requires a party disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705” and 26(a)(2)(B) requires the disclosure be accompanied by a written report if the witness is specially retained to provide expert testimony or regularly does so as the party’s employee. Federal Rule of Evidence 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion [...]”.

The key is the 702 definition concerning the witness assisting the trier of fact to understand evidence or a fact in issue in the context of a trial, whereas discovery occurs before the trial and may not, in the case of

after production was waived by the production. The courts have developed principles to determine whether, and under what circumstances, waiver results from inadvertent production of privileged or protected information.

a jury trial or where discovery is handled by a magistrate judge or special master, be before the trier of fact at all. Forensic experts employed solely for the discovery process might then not fall under the definition depending on how “may use at trial” is interpreted.