electronically stored information (ESI)

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In a recent order from Livingston v. City of Chicago, Magistrate Judge Young Kim of the Northern District of Illinois provided useful guidance to litigants in the use of technology assisted review, or TAR. Importantly, Judge Kim affirmed what is known as “Sedona Principle Six,” the notion that a responding party is in the best position to design and evaluate procedures for preserving and producing its own electronically stored information, or ESI.   

Late last month, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a $2.7 million sanctions award against defendant ePRO after repeated instances of discovery misconduct. Finding that the district court’s award properly reflected the additional costs plaintiff Klipsch Group Inc. was forced to bear due to ePRO’s actions, the Second Circuit disagreed with ePRO that the sanctions were impermissibly punitive and disproportionate. In an era of increasingly complex digital discovery, this case serves as both a sword and a shield: it protects litigants who pursue corrective discovery efforts to remedy an opponent’s willful mishandling of discoverable information, and it punishes litigants who flout their duties to maintain and disclose relevant information.

Should Titanic’s Box Office release or the debut of Harry Potter already be described as events from the ancient past? It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established. See Rule 803 of the Federal Rules of Evidence. Prior to the recent amendment, Rule 803 (16) described ancient documents as documents “at least 20 years old.” As amended, Rule 803(16) limits the ancient documents exception “to statements in documents prepared before January 1, 1998.” Id. The use of a January 1, 1998 cut-off avoids having the identification of what is an “ancient document” be a moving target. The Judicial Conference Advisory Committee on Evidence Rules (“the Committee”) recognized that Fed. R. Evid. 803, left as is, soon could have become “a vehicle to admit vast amounts of unreliable electronically stored information (ESI),” as the twenty year lookback period crept forward into the age of electronic documents. The Committee was specifically concerned about the risks created by the unreliability of older ESI, in combination with the “exponential development and growth of electronic information since 1998.”

Have you ever thought your adversary was withholding relevant ESI from document production? Have you wanted to look at the withheld documents to show that some are indeed relevant? Well, you might be able to – but it’ll cost you. In Nachurs Alpine Solutions, Corp. v. Banks, an Iowa District Court recently ordered that documents deemed nonresponsive by Defendants and withheld from production be produced to Plaintiff, but that Plaintiff would have to bear its own costs of reviewing them.

Recently, The Sedona Conference, a research and educational institute, published its 2016 Public Comment Version of The Sedona Conference Commentary on Proportionality in Electronic Discovery. This is the third version of this publication, which reflects the change and emphasis on proportionality under the 2015 amendments to the Federal Rules of Civil Procedure. The Commentary sets out six principles of proportionality guided by the Rules and case law.

Input to this public comment version is welcomed, and a subsequent final version will be published. Public comments may be made through January 31, 2017 to comments@sedonaconference.org.