Corporate technologies – in recent study conducted by Kroll, only 50% of companies have updated their ESI discovery policies to include commonly utilized corporate technologies such as mobile devices, social networking sites, virtualization and IM (as of 2006, 81% of corporate executives were connected through mobile devices all the time and 76% of Fortune 100 companies are using social media platforms aka twitter – twitter top social media platform as of 8/3/09 www.mashable.com). Even the president stays connected - Barack Obama is first president to have PDA (wonder if he’s ever butt-dialed anyone)
Many companies have document retention policies, but much less are ready to implement a discovery plan once discovery begins (conflicting priorities between legal dept. and IT), corporations trying to handle more cases with fewer resources, pressure to decrease costs while at the same time minimizing risks
1354- Reasonably accessible – undue burden or cost (insert from paper), for motion to compel BOP on person from whom production is sought (not requesting party), if they show it’s not reasonably accessible, then BOP shifts to requesting party to show good cause why production should be ordered – court may specify conditions, including allocation of cost 1424 – absolute prohibition on attorney opinion work product (CTA expand) 1425 – not discoverable absent showing of exceptional circumstances that impractical to obtain from other sources- DOES NOT preclude discovery of facts or data expert relied upon (if document contains both – can redact) 1460 – when business recs consist of ESI – you can produce as regularly maintained, or have option for inspection when burden on the same for each party 1461 – 2007 changes to 1461 and 1462 – requesting party, within scope of 1422 and 1425 can now inspect and copy the product of a computer (such as paper printout or copy on disc), no initial right to inspect computer (unless the producing party chooses to or under 1462E a court compels production) 1462(E) – specifying form (native format – metadata included – be careful what you wish for) when ESI production insufficient or not in compliance, file motion to compel – court may allow inspect, copy, test, and sample the designated ESI within scope of 1422 and 1425 1471 – good faith requirement (sanctions can’t be imposed when ESI has been lost due to routine, good faith operation of an electronic information system absent exceptional circumstances) 1551 – similar to F.R.C.P. 26 meet and confer – issues related to ESI, including forms of production – may order non-complying party to pay costs
