Shira Scheindlin - Electronic Discovery and Digital Evidence in a Nutshell

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

SECOND EDITION

SHIRA A. SCHEINDLIN

United States District Judge
Southern District of New York

The Sedona Conference

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Nutshell Series, In a Nutshell and the Nutshell Logo are trademarks registered in the U.S. Patent and Trademark Office.

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Printed in the United States of America

ISBN: 978-1-63459-748-7

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The authors dedicate this book to the memory of Richard G. Braman, founder of The Sedona Conference, who died in 2014. He was our inspiration.

The first edition of this Nutshell was published in April 2009. Since then, there have been significant developments in technology, case law, the Federal Rules of Civil Procedure and the rules of professional responsibility related to electronically stored information (ESI). This Nutshell is intended for a diverse audiencelaw students studying civil procedure, criminal law, trial practice, or evidence; practitioners looking for a handy guide to issues involving ESI that arise daily; and judges or law clerks looking for a quick introduction or refresher on common ediscovery and electronic evidence issues.

Because so few casescivil or criminalare tried, discovery has become the central focus of litigation. Today, the vast majority of records are created and maintained electronically. Thus, paper discovery is a thing of the past and ediscovery is the present and future. The creation and storage of electronic records, and the extraordinary volume and diversity of those records, create new challenges regarding preservation, collection, review, production, and admissibility in evidence. This Nutshell acquaints the reader with the technologies involved, the rules, IV the case law, and some essential practice considerations. Most importantly, this edition describes the significant amendments to the Federal Rules of Civil Procedure that take effect on December 1, 2015. The impact of these amendments on ediscovery law and practice are explained in the Introduction and throughout the book.

This Nutshell closely mirrors the more detailed treatment of these issues in Scheindlin, Capra, and The Sedona Conference, ELECTRONIC DISCOVERY AND DIGITAL EVIDENCE: CASES AND MATERIALS (3d edition, 2015), published by West Academic Publishing. We begin with Chapter I on the explosion of ESI and how it is created, stored, and retrieved. Chapter II discusses the preservation of ESI, covering such questions as when the duty to preserve attaches, what records must be preserved, and how preservation is accomplished. Chapter III covers the required meeting among counsel at the outset of litigation, when counsel must address issues surrounding the preservation, discovery, and production of ESI. The next three chapters address the essential processes of ediscoverycollection, search and review, and production. Chapter VII addresses challenges to and the defense of ediscovery process, and the possibilities for cost-sharing, cost-shifting, or cost recovery at the conclusion of the litigation. Chapter VIII discusses sanctions for spoliation for the failure to produce ESI, with a focus on amended Rule 37(e). The remaining chapters discuss professional responsibility, criminal investigations and prosecutions, privilege and work V product, and the admissibility of evidence, all in the context of ESI.

The co-authors of this Nutshell are Judge Shira A. Scheindlin of the Southern District of New York, and Kenneth J. Withers, the Deputy Executive Director of the Sedona Conference. Judge Scheindlin is recognized as a leading figure in ediscovery, as a member of the Advisory Committee on Civil Rules and a member of the Discovery Subcommittee that drafted the 2006 amendments addressing the discovery of ESI. She is also the author of the landmark Zubulake and Pension Committee opinions. Mr. Withers has been acknowledged for more than twenty-five years as one of the pioneering authorities in the ediscovery field. Significant contributions to this Nutshell have also been made by members of The Sedona Conference, a leading voice of the legal profession in addressing ediscovery concerns. Sedona has published several frequently cited commentaries in this area, including the authoritative SEDONA PRINCIPLES. We also wish to thank Judge Scheindlins staff assistants who helped with the updates to this NutshellClifford Bloomfield, Kiel Brennan-Marquez, Peter Dubrowski, Russell Mawn, Rachel Schwartz, Anuja Thatte, and Andrew Todres.

We are confident that students and practitioners who use this Nutshell will find it to be an invaluable guide to the current state of ediscovery law and practice. We are sure of one thing: What began as a niche area of civil procedure is quickly becoming a VI necessary area of proficiency for lawyers in all practice areas. We are honored to do our part by providing this guide to help you achieve competence in this always-evolving field.

SHIRA A. SCHEINDLIN

NEW YORK, N.Y.

KENNETH J. WITHERS

FOR THE SEDONA

CONFERENCE

PHOENIX, ARIZ.

September 2015

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References are to Pages

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150 Nassau Assocs. LLC v. RC Dolner LLC .................. 208

Abadia-Peixoto v. United States Department of Homeland Security ........................................................................ 261

Actos Produtcs Liability Litigation, In re ...... 237, 322, 334

Aguilar v. Immigration and Customs Enforcement (ICE) ............................................................................ 222