American Bar Association
Volume 17, Number 1
Fall 2008                                                                            Committee on Pretrial Practice & Disc...
Committee on Pretrial Practice & Discovery                                                                                ...
Fall 2008                                                                             Committee on Pretrial Practice & Dis...
Committee on Pretrial Practice & Discovery                                                                                ...
Fall 2008                                                                                    Committee on Pretrial Practic...
Upcoming SlideShare
Loading in …5

Probing Claims That Data Is Not Reasonably Accessible Seth Row Aba Pp&D Fall 2008


Published on

Legal article on the "not reasonably accessible" standard under FRCP 26(b)(2)(B) with how to guidance on probing those claims.

Published in: Business, Technology
  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Probing Claims That Data Is Not Reasonably Accessible Seth Row Aba Pp&D Fall 2008

  1. 1. pp&d THE COMMITTEE ON PRETRIAL PRACTICE & DISCOVERY American Bar Association Volume 17, Number 1 Section of Litigation Fall 2008 In This Issue Deposition Preparation: Use Care When Showing Documents to Witnesses ........ 9 Messages from the Chairs Stacy L. Drentlaw and Editors ...................................... 2 A Recent French Supreme Court Young Lawyer Decision Has Implications for Documents Don’t Talk .......................... 4 E-Discovery Abroad ............................ 14 Erika Birg Moze Cowper and Amor Esteban Discrete Interrogatory Subparts The Evolution of E-Discovery under Rule 33 .................................... 6 Sanctions ......................................... 17 Matthew Albaugh Michael Swarz Probing Claims Fundamentals of That Data Is Not Discovery Motion Reasonably Accessible Practice By Seth H. Row By Samuel A. Thumma I D t finally happens: you receive a response to a request for pro- iscovery works best without judicial involvement. I duction in your federal court case that states, “Respondent have never met a judge who looked forward to dealing will not produce any responsive documents, on the basis with discovery disputes. Although I am sure there are that responsive documents, if any exist, are stored only on data exceptions—particularly for evolving issues such as electronic sources that are not reasonably accessible due to undue burden data—those exceptions are rare. or cost.” By invoking Federal Rule of Civil Procedure 26(b)(2) Every case involves discovery, and almost every case involves (B), your opponent has thrown you into a whirlwind of doubt— discovery disputes of some type. Wise counsel work hard to are there responsive documents or not? What sources? What is resolve such disputes before raising them with the court. How, your next move going to be? then, should counsel proceed when at a true impasse on a Rule 26(b)(2)(B), part of the December 2006 revisions to material discovery issue that cannot be resolved without judicial the Federal Rules of Civil Procedure related to electronic dis- intervention? This article offers some suggestions, based largely covery, has been the subject of much commentary and specula- on my time in private practice and, to a far lesser extent, my tion. It has not been subject to much scrutiny in the courts, yet. experience on the bench since May 2007 as a trial judge on the Arizona Superior Court. My comparatively short time on the A Rules-Based Approach to Probing the Claim bench has further reinforced some of my views on discovery The Federal Rules of Civil Procedure provide an outline for how disputes, clarified others, and provided context for new views to proceed when faced with a Rule 26(b)(2)(B) objection. The that I do not recall having as a practitioner. rule states that “A party need not provide discovery of electroni- cally stored information from sources that the party identifies as 1. Be Prepared. not reasonably accessible because of undue burden or cost.”1 The Know your filings and know the opposing party’s filings. Know rule establishes a procedure for resolving disputes over the claim: the key rules and cases and the issues in dispute, and the On motion to compel discovery or for a protective order, strengths and weaknesses of your positions. Try to anticipate the party from whom discovery is sought must show that the and have answers for issues that may arise. In particular, have (Continued on page 21) (Continued on page 26)
  2. 2. Fall 2008 Committee on Pretrial Practice & Discovery Probing Claims evaluate its anticipated response. If you have not already done (Continued from page 1) so in connection with a Rule 26(f) conference, you should give serious consideration to retaining an electronic discovery con- information is not reasonably accessible because of undue sultant to explore the other party’s contentions. burden or cost. If that showing is made, the court may none- Discovery about Discovery—“Meta-Discovery” theless order discovery from such sources if the requesting Hopefully, the letter to your opponent garners a response that party shows good cause, considering the limitations of Rule gives you information sufficient to either accept or reject the 26(b)(2)(C). The court may specify conditions for discovery. claim that certain information is “not reasonably accessible.” This “two-step” process has been criticized by some as dupli- But let’s suppose, as is unfortunately likely, that you encounter cative and meaningless.2 Nevertheless, it does provide a rules- resistance. Rather than engage in a lengthy back-and-forth by based approach to challenging the claim. The rule invites a letter, consider doing some formal discovery to support your motion to compel to test the claim.3 probable motion to compel. With a motion to compel in mind, your first step should be to insist that your opponent fully comply with the “identifica- tion” requirement of the rule. The Advisory Committee notes to the rule make it clear that a responding party invoking Rule You should seriously 26(b)(2)(B) must: identify, by category or type, the sources containing poten- consider retaining an tially responsive information that it is neither searching nor producing. The identification should, to the extent possible, e-discovery consultant provide enough detail to enable the requesting party to eval- uate the burdens and costs of providing the discovery and the to explore the other likelihood of finding responsive information on the identified sources.4 party’s contentions. If you anticipated that this issue might arise, you may have included an instruction in your request for production demand- ing that the responding party provide those details in its Although courts usually dislike litigants engaging in discov- response. Under the rule, these questions need not be asked in ery away from the central issue in the case, in this situation, the form of interrogatories because the notes make it reason- the Advisory Committee notes to the rule will support issuing ably clear that the responding party has the obligation to pro- discovery on e-discovery. The notes state, in the context of a vide this information at the same time that it responds to the discussion about the two-step, burden-shifting analysis set out in underlying discovery request. Assuming that you did not receive the rule, that: that information in the discovery response, you should write to . . . the court and parties may know little about what infor- your opponent, referencing the notes and asking that additional mation the sources identified as not reasonably accessible detail be provided.5 might contain, whether it is relevant, and how valuable it It is important to keep in mind that Rule 26(b)(2)(B) is may be to the litigation. In such cases, the parties may need properly used as an objection to production of information, not some focused discovery, including sampling of the sources, to discoverability of information.6 Therefore, you should make to learn more about what burdens and costs are involved in it clear to your opponent that you understand its response to accessing the information, what the information consists of, indicate that the sources to which it is referring may contain and how valuable it is for the litigation in light of information responsive information that otherwise would be discoverable that can be obtained by exhausting other opportunities for under Rule 26(b)(1); that is, it has conceded that the source discovery.8 may contain information that is “relevant to any party’s claim of Not only do the notes to the rule specifically contemplate defense” and that is itself admissible or “reasonably calculated to discovery about discovery (what some call “meta-discovery”) lead to the discovery of admissible evidence.”7 but several courts have also ordered such discovery when the But what will you do with the detailed information about parties could not agree. For example, in Petcou v. C.H. Robinson the source once you have it? If your opponent takes its obliga- Worldwide, the court denied a motion to compel production of tions seriously, it will give you technical information about the email that was alleged to be “not reasonably accessible,” but sources it considers not reasonably accessible. At the same time ordered discovery on the accessibility issue, and allowed the that you are preparing your letter demanding a more complete requesting party leave to refile the motion.9 In Wells v. Xpedx, identification of the sources that your opponent has refused the court permitted the requesting party to take a corporate to search, you should be preparing yourself to understand and representative deposition under Federal Rule of Civil Procedure 30(b)(6), regarding the producing party’s data-preservation policies and practices, its efforts to search for and retrieve Seth H. Row is an associate with Holland & Knight LLP’s Portland, Oregon, office. He thanks Garrett Garfield, a summer associate with responsive information, and its computer system capabilities, Holland & Knight, for his assistance in research for this article. because the producing party failed to provide the court with American Bar Association ♦ Section of Litigation 21
  3. 3. Committee on Pretrial Practice & Discovery Fall 2008 sufficient information to back up its claim that data was not the rule because of the time that would be required to review reasonably accessible.10 the data for responsiveness. Such confusion can be avoided by focusing on the burden A Digression: What Data Sources Are “Not associated with complying with the particular discovery request, Reasonably Accessible”? rather than the type of media on which it is stored, and by Let me digress a bit to consider what kind of information you viewing the media format as but one of several considerations. should expect from your opponent concerning its data sources. Therefore, do not be content with an explanation from your A common question from clients is what data sources may be opponent that no documents were produced in response to your deemed “off limits” under Rule 26(b)(2)(B). The answer to request, reasoning that if responsive documents exist, they are on that question, like most such questions posed to lawyers, is “it a backup tape, which is not reasonably accessible. By letting you depends.” No data sources are necessarily and presumptively know the media type, your opponent has only begun to answer the hard questions that you should pose to probe its claim. Probing a claim that data Asking the Hard Questions Whether your opponent plays hardball and requires you to take is “not reasonably discovery on the point, or agrees to provide information to back up its claim voluntarily, probing a claim that data is “not accessible” requires reasonably accessible” requires asking difficult questions about technical details, vendor relationships, and litigation planning. asking difficult questions. Storage Media As noted above, simply because the data source is a media for- mat that the conventional wisdom would call “inaccessible” does not necessarily mean that discovery from the source would “not reasonably accessible,” because the focus of the rule is on be unreasonably burdensome or costly. Once you learn the the burden or cost of production from that source, not on the media type or format, you should ask additional questions to particular source itself. The burden or cost to the producing inform your analysis. party may arise because of multiple factors. The cost/burden fac- To take one common example, opposing counsel may claim tors that have been recognized by the Rules Committee, com- that the email files of a former employee might contain respon- mentators, or courts, include: sive information, but that when the employee left, his or her • “forensic costs” of converting data from a format that is email account was closed and the data deleted from the email difficult or impossible to search or review to another more server. The only place that the employee’s email might reside accessible format (such as the restoration of data from a is on one of several backup tapes of the email server created backup tape)11 shortly before the account was closed. Your opponent may argue • the cost to review the data for responsiveness, privilege, or that the former employee’s email files are therefore “not reason- other concerns12 ably accessible” because restoring and locating that data on the • business disruption and “internal” costs13 backup tapes would be burdensome and costly. While much has been written about the different categories You should recognize that this contention rests on a premise of data source media formats—for example, “active” or “online,” about what backup tapes are used for, which is, generally speak- “nearline,” “backup,” “deleted,” or “legacy”—it is clear that ing, recovery of data after a catastrophic loss, such as a natural under the appropriate circumstances, a party may need to pro- disaster. But what if the opposing party uses backup tapes for duce information from a source that appears to be “not reason- purposes other than disaster recovery? What if your opponent’s ably accessible.”14 Indeed, focusing on the format of any particu- system is set up in such a way that when an email file goes miss- lar source can lead to a good amount of confusion of the issues. ing, the company routinely uses the backup tape to restore the For example, in W.E. Aubuchon v. Benefirst, the court began data? If that is the case, then your opponent will have a much with what it called a “media-based analytical approach” to the more difficult time convincing a court that the data source is issue of whether medical claim files were protected by Rule not reasonably accessible, because the company’s actual business 26(b)(2)(B).15 The court repeated Judge Scheindlin’s explana- practices make that data source seem a lot more like “nearline” tion of the different categories of sources in the Zubulake cases, storage (CD-ROMs, external hard drives) than anything else. which she had designated as either “accessible” or “inaccessible.” Why would it be unreasonable for your opponent to restore The Aubuchon court ran into a problem applying that analysis to email data from a backup tape in response to your targeted the facts before it and to Rule 26(b)(2)(B) (which was enacted discovery request if it regularly does the same thing for its own after the Zubulake cases). The Aubuchon court concluded that business purposes? the data source at issue—a server—was “accessible” under the To find out how your opponent treats backup tapes or simi- Zubulake analysis; however, the court also held that the data on lar media, serve discovery requests asking for data from its help the server was not searchable or indexed in any meaningful way. desk application system (a report, most likely) showing the dates Therefore, the court concluded that despite the media source and details of requests for data restoration.16 The IT help desk being “accessible,” the ESI was “not reasonably accessible” under at most large companies will track requests for help, IT’s inves- 22 Section of Litigation ♦ American Bar Association
  4. 4. Fall 2008 Committee on Pretrial Practice & Discovery tigation, and the eventual solution. Alternatively, you should dispute, leaves the company, and his or her email records are notice a corporate representative deposition under Rule 30(b) removed from the company’s “active” email server? After dis- (6) and ask for information about requests for data restoration covering that the employee’s email is no longer on the server, from users. If the corporate representative tells you that indi- the company preserves a backup tape made of the email server vidual users frequently asked IT for help restoring data that had immediately before the employee left the company. In that case, been accidentally deleted and that IT usually loaded data from there probably was no “spoliation,” as the employee’s email still backup tapes, that information may be significant in undermin- exists. But suppose that the company refuses to produce the ing your opponent’s claim that its backup tapes are not reason- email on the basis that it is “not reasonably accessible.” ably accessible. In factually analogous situations, courts have held that You should also be savvy about the attributes of backup although “downgrading” of data from active to archival or disas- tapes. If your opponent claims that it will have to search thou- ter-recovery storage media is not spoliation, the producing party sands of tapes to locate the email file of one employee, ask how will be unable to shift any of the cost of restoring the archi- it reached that conclusion. Even backup tapes that are not val media so that it can be searched and the data retrieved.21 externally labeled or indexed may include headers that can be Therefore, it makes sense to ask questions about where the data read using a simple scan that would show the backup date and that your opponent says is “not reasonably accessible” resided in backup software (which could indicate whether the tape con- the recent past, when that data migrated to the less-accessible tains email or some other data type). Other simple scans may media, and whether it did so as the result of a routine operation, show server-level information. You should ask your opponent or as the result of a conscious and specific decision.22 Although what kinds of analysis it has done of the backup tapes to sup- it is unlikely that the answers to questions on this topic will port its contention about the cost and burden of finding the result in data being deemed “reasonably accessible,” it may assist requested data. you in arguing that production should be ordered nonetheless You also should discuss the use of sampling, a compromise under Rule 26(b)(2)(B)’s “good cause” standard and that the that was specifically endorsed in the Federal Rules of Civil producing party should bear the cost. Procedure revisions in 2006. The Advisory Committee notes to Cost of Review Rule 26(b)(2)(B) suggest that discovery on the issue of acces- In the Aubuchon case, the data being sought—static digital sibility “might take the form of requiring the responding party images of claim files—were deemed “not reasonably accessible” to conduct a sampling of information contained on the sources because those files were not indexed in such a way that respon- identified as not reasonably accessible . . .” Sampling may sive documents could be identified without the producing party involve restoring a few backup tapes selected from different time having to manually review each document on the server. The periods or locations both to determine whether any responsive responding party successfully argued that the cost of review for or truly useful information is likely to be contained on the tapes, responsiveness was an undue burden. Similarly, in other cases, and to inform future discussions about cost and burden.17 requests for ESI have been rejected or severely limited by the The Spoliation Issue court where the cost of review for responsiveness (or privilege, Simply because the data that you seek now resides on a media or some other concern) was high.23 type that your opponent claims is “not reasonably accessible” While the cost of reviewing volumes of ESI for privilege or does not mean that it has always been so. One line of attack in responsiveness is repeatedly cited as one of the worst—if not the probing a claim under Rule 26(b)(2)(B) involves finding out worst—side effects of the increasing prominence of electronic when the ESI involved was exiled to its current home (on, say, discovery, there is no need to blindly accept your opponent’s a backup tape). claims about the cost of performing that review. Instead, take All parties have an obligation to preserve data that they rea- the following steps to explore those claims. sonably believe is likely to be relevant to pending or anticipated First, discuss with your opponent how it determined the uni- litigation.18 Although Federal Rule of Civil Procedure 37(e) verse of documents that require individual review. Perhaps you (formerly (f)) provides a “safe harbor” for destruction of data have already discussed the use of search terms to allow identifi- that occurs pursuant to the “routine, good faith operation of an cation of responsive documents from data sources that the pro- electronic information system,” the Advisory Committee notes ducing party has conceded are reasonably accessible. That is the explain that the protections of Rule 37(e) do not mean that a same kind of conversation you should have about sources that party under a preservation obligation regarding that data may purportedly are not reasonably accessible. Do not allow your allow an auto-delete system to continue to run unchecked.19 A opponent to argue that you were unwilling to discuss narrowing party may not allow a routine system operation to destroy all the range of data using search terms or concepts, requiring the access to a set of data if it is under a duty to preserve that infor- manual review of every document. The defendants in Petcou v. mation.20 C.H. Robinson Worldwide, Inc. were able to use that argument A more complicated situation arises when the data in ques- to block discovery of company email with “pornographic” or tion was not deleted, but simply moved (or, in IT parlance, “sexual” content.24 The email was contained on backup tapes “migrated”) from an easily accessible storage media to a less- that had to be restored and then reviewed. The Petcou plaintiff accessible media, after the preservation obligation arose. For would not narrow the scope of the requested data beyond the example, what if immediately after a complaint is filed in court, very broad, and vague, language of the request for production. one of the defendant’s employees, who was at the center of the Because the request would have required defendants to review American Bar Association ♦ Section of Litigation 23
  5. 5. Committee on Pretrial Practice & Discovery Fall 2008 every email to or from thousands of employees over a six-year can come to light, without unnecessary cost or delay. An added time period, and make subjective judgments about what was benefit to full disclosure is that if a motion to compel is neces- “pornographic,” on top of incurring the cost of restoring the sary, an exchange of ESI details will give the parties and the backup tapes, the court found that the plaintiff could not estab- court the information necessary to reach the right decision. lish good cause to order the production. Simply talking to your opponent about narrowing search terms or concepts to minimize Endnotes the burden of a request may help to foreclose a contention that 1. Fed. R. Civ. P. 26(b)(2)(B). 2. See Henry S. Noyes, Good Cause Is Bad Medicine for the New the cost of review renders a source not reasonably accessible. E-Discovery Rules, 12 Harv. J. Law & Tech. 1 (Fall, 2007), available at Second, you also should ask your opponent to give you http://jolt.law.harvard.edu/articles/pdf/v21/NOYES_Good_Cause_Is_ details about the individual components of its cost estimate and Bad_Medicine.pdf. 3. The reference to resolving the dispute by either a motion to compel or motion for protective order makes it clear that the rule’s drafters did not intend for judges to penalize the producing party for failing to bring Attorneys owe it to their a motion for protective order upon receipt of the objectionable request. 4. Fed. R. Civ. P. 26(b)(2)(B) Committee Note (2006). The duty to clients and the courts provide detailed information as part of the “identification” of sources that have not been searched is discussed in a recent publication of The Sedona Conference’s working group on electronic discovery. See to diligently pursue The Sedona Conference Commentary on Preservation, Management, and Identification of Sources that are Not Reasonably Accessible (The Sedona negotiated resolution of Conference Working Group Series, August 2008), Guideline 3. 5. Keep in mind that to comply with Rule 26(b)(2)(B), the responding party need not provide the level of detail expected in a privilege log. accessibility issues. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona Conference Working Group Series, 2d ed. June 2007), cmt. 4.b. However, a general assertion of burdensomeness is insufficient. See, e.g., City of Seattle look for line items that simply do not make sense. Is the other v. Professional Basketball Club, LLC, No. C07-1620MJP, 2008 WL party proposing that a team of associates, each billing $300 per 539809, *3 (W.D. Wash. 2008). 6. See generally Noyes, supra note 1, for a comparison of Rule 26(b)(1) hour, perform the review? Has it considered outsourcing review and Rule 26(b)(2)(B). to one of the many companies that will provide contract attor- 7. Fed. R. Civ. P. 26(b)(1). neys to perform review (at a third the cost of big-firm associates) 8. Fed. R. Civ. P. 26(b)(2) Committee Note (2006). or off-shoring the review at an even lower cost? Is it paying 9. Petcou v. C.H. Robinson Worldwide, No. 1:06-CV-2157-HTW- for online hosted review, or is it proposing to use an in-house GGB, 2008 WL 542684, *1 (N.D. Ga. Feb. 25, 2008). 10. Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. April 23, 2007). review tool? What is its vendor proposing to charge for process- Wells and other cases show that a responding party may be able to ing, hosting, or production? Is it planning on creating TIFF files thwart a motion to compel by making a full and detailed disclosure of all of the documents prior to review or only those that are to the opponent and the court of the basis for its claim that data is selected for production? not reasonably accessible. See, e.g., E.E.O.C. v. Boeing Co., No. CV 05-03034-PHX-FJM, 2007 WL 1146446, *3 (D. Ariz. Apr. 18, 2007). The reasonableness of your opponent’s projected cost will 11. See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After depend on the sensitivity of the review,25 the size of the job, and December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), available at the resources available to your opponent, all of which the other http://thepocketpart.org/2006/11/30/rosenthal.html. party should be prepared to share with you and your experts. If 12. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Discovery (The Sedona your opponent does not share that information with you, it likely Conference Working Group Series, 2d ed. June 2007), cmt. 13.a will have to share the information with the court.26 If you can (“[C]onsideration of the ‘total cost of production’ includes the use that information to generate cost estimates or bids from your estimated costs of reviewing retrieved documents for privilege, own vendors that are dramatically lower, it may be possible to confidentiality, and privacy purposes.”). Note also that different remove the cost of review as a factor in the accessibility analysis. attributes of data may be more easy or less easy to review. For example, if metadata needs to be reviewed, the cost of review may be higher if Probing a claim that data is “not reasonably accessible” under the metadata is not susceptible to term or concept searching. Rule 26(b)(2)(B) involves, first, understanding that the rule and 13. Id. (“‘ . . . total cost of production’ includes . . . consideration of the Advisory Committee notes provide a mechanism for resolv- opportunity costs or disruption to the organization.”). ing such disputes that contemplates discovery on the issue, and, 14. Id. (“The types of information that typically may (but not always) second, asking hard questions of your opponent about the basis fall within Rule 26(b)(2)(B) include deleted data, disaster recovery/ backup tapes, residual [deleted] data, and legacy data.”). for its claim. One overriding trend in court decisions on acces- 15. W.E. Aubuchon Co. v. BeneFirst LLC, 245 F.R.D. 38 (D. Mass. sibility issues is to demand that parties disclose to each other, 2007). and thoroughly discuss with each other, the details involved 16. Jeffrey J. Beard, Breaking Through the Inaccessibility Wall, Litig. in the dispute before they come to court. Those details may be Support Today, Feb./Apr. 2008, at 16. confusing and require the assistance of consultants. However, 17. See, e.g., Delta Fin. Corp. v. Morrison, 13 Misc. 3d 604, 819 N.Y.S.2d 908 (N.Y. Sup. 2006). attorneys owe it to their clients and the courts to diligently 18. See The Sedona Principles: Best Practices Recommendations & pursue negotiated resolution of accessibility issues so that the Principles for Addressing Electronic Document Discovery (The Sedona information that is necessary to resolve each case on its merits Conference Working Group Series, 2d ed. June 2007), cmt. 5.a . Note 24 Section of Litigation ♦ American Bar Association
  6. 6. Fall 2008 Committee on Pretrial Practice & Discovery that Comment 5.h. states that backup tapes ordinarily should not be 22. The same questions could be asked when presented with an subject to a litigation “hold” because, presumably, efforts will be made objection under Rule 26(b)(2)(B) based on the source being a so-called to preserve data in “active” storage, making preservation of backup “legacy” system. A “legacy” system is software or hardware that has tapes redundant. become obsolete or replaced. See The Sedona Conference Glossary 19. Fed. R. Civ. P. 37(f) Committee Notes (2006). for E-Discovery and Digital Information Management (The Sedona 20. The Sedona Conference Commentary on Preservation, Management, Conference, 2005) at 26. Examples include database software for which and Identification of Sources that are Not Reasonably Accessible (The the company no longer has a license, or which runs on an operating Sedona Conference Working Group Series, August 2008), Guideline system that is no longer used. Difficulties involving legacy systems 1at 6. (Noting that with regard to a party’s duty to preserve data from also frequently involve backup tapes, as reading data from a backup identified sources prior to the initial conference of counsel “[i]f the tape may be nearly impossible if the software that was used to create source in question is not reasonably accessible, it may nonetheless still the data in the first place is “legacy.” In addition to the “spoliation” have to be preserved if the producing party does not have a reasonable type questions suggested above, when confronted with a claim of a belief that the information is available on other, more accessible legacy system, the requesting party should ask their opponent about sources.”) such things as whether the original software or software manuals were 21. Quinby v. WestLB, 245 F.R.D. 94 (S.D.N.Y. 2006), modified, retained. 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007). See also AAB Joint Venture 23. See, e.g., In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 v. United States, 75 Fed. Cl. 432, 433–444 (2007) (noting that SI (EMC), 2006 WL 2458720 (N.D. Cal. 2006) (approving use of government should not benefit from choice to store email on backup proposed search terms that would narrow the universe of documents tapes for archival purposes, and limiting cost-shifting accordingly); that would require review for privileged documents). Best Buy Stores, L.P. v. Developers Diversified Realty Corp., No. 24. Petcou, 2007 WL 542684, *2. 05-2310(DSD/JGG), 2007 WL 333987 (D. Minn. Feb. 1, 2007) (Best 25. The American Bar Association recently released an ethics opinion Buy was not under an obligation to maintain database created for prior addressing the outsourcing of legal work, including document review, litigation in searchable format at high monthly cost, although company in which it recognized that the practice can be a legitimate cost-control should have anticipated that discovery would be sought of database method. See ABA Comm. On Ethics and Prof’l Responsibility, Formal in future litigation); Zubulake v. UBS Warburg LLC, 217 F.R.D. Op. 08-451 (August 5, 2008) (lawyer’s obligations when outsourcing 309 (S.D.N.Y. 2003); see also The Sedona Conference Commentary on legal and nonlegal support services). Preservation, Management, and Identification of Sources that are Not 26. See Thompson v. Jiffy Lube Int’l, Inc., No. 05-1203-WEB, 2006 Reasonably Accessible (The Sedona Conference Working Group Series, WL 1174040 (D. Kan. May 1, 2006) (ordering parties to supply more August 2008), Guideline 4. information to support conclusory allegations about cost of review). the BeneFIts oF memBershIp Seeing Both Sides with the ABA Section of Litigation online audio programming Bring the ABA Section of Litigation along on your next jog with free iPod-ready audio programs. Download programs on inadvertent document production, email management, oral argument, and more, all in MP3 format. The programs are also available in streaming audio format, so it’s your choice whether you listen at your desk or on the go. Start listening today at: www.abanet.org/litigation/audio American Bar Association ♦ Section of Litigation 25