Electronic discovery is required in all cases, but forensics to recover deleted data is not always necessary. A party does not need to provide discovery from sources identified as not reasonably accessible due to undue burden or cost as determined case-by-case. While costs may decrease over time, determining accessibility involves both technical and legal assessments according to the specific needs and circumstances of each case. Transparent cooperation early in the discovery process helps avoid later disputes over preservation issues.

1. Accessible Data Issues Brett Shavers and Allison Goodman

2. Electronic discovery is part of the discovery process and required in all cases. Forensics determines computer activity and recovers deleted data and is not always necessary.

3. 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. FRCP 26(b)(2)(B) Who determines what constitutes undue burden or cost?

4. What was impossible ( expensive ) yesterday, may be possible ( cheap) tomorrow What is possible ( cheap ) today, may be impossible ( expensive) tomorrow Legacy systems, etc…

5. What happens when electronic media is loaded into a forensic tool such as FTK or Encase? Is it an “undue burden or cost” to produce those deleted files?

6. Simple copy and paste As noted in Zubulake v.UBS Warburg (“ Zubulake IV ”), “[because] there are many ways to manage electronic data, litigants are free to choose how this task [preservation] is accomplished.”

7. No one solution will meet all needs Cases need to be evaluated from a legal and technical perspective Attorneys ultimately make the decisions Make sure they can make fully informed decisions

8. The best way to avoid post-production preservation disputes is by developing early agreement on contentious preservation issues through transparent and cooperative efforts. The Sedona Conference Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible. July 2008

9. Petcou v. C.H. Robinson Worldwide, Inc., 2008 U.S. Dist. LEXIS 13723 (N.D. Ga. Feb. 25, 2008). Pursuant to Fed. R. Civ. P. 26(b)(2)(B), the court found the Defendant met its burden to show that deleted email was not reasonably accessible, as the cost of doing so for only one employee would have been approximately $79,000. Simon Property Group, Inc. v. Taubman Centers, Inc., 2008 U.S. Dist. LEXIS 5065 (E.D. Mich. Jan. 24, 2008).. A non-party objected to a subpoena, however, they failed to do so within the time allowed by Fed. R. Civ. P. 45(c)(2)(B). The court did order the parties involved to make a good faith attempt to narrow the scope of the subpoena, as it was so broad that it would have required 3 employees of the non-party to search servers for approximately 4 weeks.