BILL NUMBER: AB 5CHAPTERED 06/29/09 CHAPTER 5 FILED WITH SECRETARY OF STATE JUNE 29, 2009 APPROVED BY GOVERNOR JUNE 29, 2009 PASSED THE SENATE JUNE 15, 2009 PASSED THE ASSEMBLY MARCH 12, 2009 INTRODUCED BY Assembly Member Evans (Coauthors: Assembly Members Feuer and Tran) (Coauthors: Senators Corbett and Harman) DECEMBER 1, 2008 An act to amend Sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300, 2031.310, and 2031.320 of, and to add Sections 1985.8 and 2031.285 to, the Code of Civil Procedure, relating to civil discovery, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 5, Evans. Civil discovery: Electronic Discovery Act. The Civil Discovery Act permits a party to a civil action to obtain discovery, as specified, by inspecting documents, tangible things, and land or other property in the possession of any other party to the action. Existing law requires the party to whom an inspection demand has been directed to respond separately to each item or category of item by any of certain responses, including a statement that the party will comply with the particular demand for inspection by the date set for inspection pursuant to a specified provision. This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any other party to the action. This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection, of documents, tangible things, land or other property, or electronically stored information. The Civil Discovery Act permits the party demanding inspection and the responding party to agree to extend the time for service of a response to a set of inspection demands, or to particular items or categories of items in a set, to a date beyond that provided in a specified provision. This bill would permit the parties to agree to extend the date for inspection, copying, testing, or sampling beyond those provided in specified provisions. The Civil Discovery Act requires any documents produced in response to an inspection demand to be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. The documents are to be produced on the date described above or as agreed to by the parties pursuant to an extension. This bill would make this provision applicable, in addition, to documents produced in response to a demand for copying, testing, or sampling. The bill would furthermore provide that if a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information. In general if a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party would be required to produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable, but need not produce the same electronically stored information in more than one form. The bill would also provide that a party seeking a protective order regarding, or a party objecting to or opposing a demand for, production, inspection, copying, testing, or sampling of electronically stored information, on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense. If it is established that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to specified restrictions in specified circumstances. Existing law requires the court to impose a monetary sanction, as specified, against any party or any attorney of a party for specified violations. This bill would generally provide that, notwithstanding the above provision, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act shall be known as the Electronic Discovery Act. SEC. 2. Section 1985.8 is added to the Code of Civil Procedure, to read: 1985.8. (a) (1) A subpoena in a civil proceeding may require that electronically stored information, as defined in Section 2016.020, be produced and that the party serving the subpoena, or someone acting on the party's request, be permitted to inspect, copy, test, or sample the information. (2) Any subpoena seeking electronically stored information shall comply with the requirements of this chapter. (b) A party serving a subpoena requiring production of electronically stored information may specify the form or forms in which each type of information is to be produced. (c) Unless the subpoenaing party and the subpoenaed party otherwise agree or the court otherwise orders, the following shall apply: (1) If a subpoena requiring production of electronically stored information does not specify a form or forms for producing a type of electronically stored information, the person subpoenaed shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable. (2) A subpoenaed person need not produce the same electronically stored information in more than one form. (d) The subpoenaed person opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense. (e) If the person from whom discovery of electronically stored information is subpoenaed establishes that the information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the subpoenaing party shows good cause, subject to any limitations imposed under subdivision (h). (f) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery. (g) If necessary, the subpoenaed person, at the reasonable expense of the subpoenaing party, shall, through detection devices, translate any data compilations included in the subpoena into a reasonably usable form. (h) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues. (i) If a subpoenaed person notifies the subpoenaing party that electronically stored information produced pursuant to a subpoena is subject to a claim of privilege or of protection as attorney work product, as described in Section 2031.285, the provisions of Section 2031.285 shall apply. (j) A party serving a subpoena requiring the production of electronically stored information shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. (k) An order of the court requiring compliance with a subpoena issued under this section shall protect a person who is neither a party nor a party's officer from undue burden or expense resulting from compliance. (l) (1) Absent exceptional circumstances, the court shall not impose sanctions on a subpoenaed person or any attorney of a subpoenaed person for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. SEC. 3. Section 2016.020 of the Code of Civil Procedure is amended to read: 2016.020. As used in this title: (a) "Action" includes a civil action and a special proceeding of a civil nature. (b) "Court" means the trial court in which the action is pending, unless otherwise specified. (c) "Document" and "writing" mean a writing, as defined in Section 250 of the Evidence Code. (d) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (e) "Electronically stored information" means information that is stored in an electronic medium. SEC. 4. Section 2031.010 of the Code of Civil Procedure is amended to read: 2031.010. (a) Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (b) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made. (c) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made. (d) A party may demand that any other party allow the party making the demand, or someone acting on that party's behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it. (e) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made. SEC. 5. Section 2031.020 of the Code of Civil Procedure is amended to read: 2031.020. (a) A defendant may make a demand for inspection, copying, testing, or sampling without leave of court at any time. (b) A plaintiff may make a demand for inspection, copying, testing, or sampling without leave of court at any time that is 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. (c) Notwithstanding subdivision (b), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, a plaintiff may make a demand for inspection, copying, testing, or sampling without leave of court at any time that is five days after service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. (d) Notwithstanding subdivisions (b) and (c), on motion with or without notice, the court, for good cause shown, may grant leave to a plaintiff to make a demand for inspection, copying, testing, or sampling at an earlier time. SEC. 6. Section 2031.030 of the Code of Civil Procedure is amended to read: 2031.030. (a) (1) A party demanding inspection, copying, testing, or sampling shall number each set of demands consecutively. (2) A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced. (b) In the first paragraph immediately below the title of the case, there shall appear the identity of the demanding party, the set number, and the identity of the responding party. (c) Each demand in a set shall be separately set forth, identified by number or letter, and shall do all of the following: (1) Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item. (2) Specify a reasonable time for the inspection, copying, testing, or sampling that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date. In an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, the demand shall specify a reasonable time for the inspection, copying, testing, or sampling that is at least five days after service of the demand, unless the court, for good cause shown, has granted leave to specify an earlier date. (3) Specify a reasonable place for making the inspection, copying, testing, or sampling, and performing any related activity. (4) Specify any inspection, copying, testing, sampling, or related activity that is being demanded, as well as the manner in which that activity will be performed, and whether that activity will permanently alter or destroy the item involved. SEC. 7. Section 2031.040 of the Code of Civil Procedure is amended to read: 2031.040. The party making a demand for inspection, copying, testing, or sampling shall serve a copy of the demand on the party to whom it is directed and on all other parties who have appeared in the action. SEC. 8. Section 2031.050 of the Code of Civil Procedure is amended to read: 2031.050. (a) In addition to the demands for inspection, copying, testing, or sampling permitted by this chapter, a party may propound a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made. (b) A party may propound a supplemental demand for inspection, copying, testing, or sampling twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a trial date. (c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court may grant leave to a party to propound an additional number of supplemental demands for inspection, copying, testing, or sampling. SEC. 9. Section 2031.060 of the Code of Civil Procedure is amended to read: 2031.060. (a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That all or some of the items or categories of items in the demand need not be produced or made available at all. (2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended. (3) That the place of production be other than that specified in the demand. (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. (5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way. (6) That the items produced be sealed and thereafter opened only on order of the court. (c) The party or affected person who seeks a protective order regarding the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense. (d) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (f). (e) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery. (f) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exist: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues. (g) If the motion for a protective order is denied in whole or in part, the court may order that the party to whom the demand was directed provide or permit the discovery against which protection was sought on terms and conditions that are just. (h) Except as provided in subdivision (i), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (i) (1) Notwithstanding subdivision (h), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. SEC. 10. Section 2031.210 of the Code of Civil Procedure is amended to read: 2031.210. (a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. (b) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party. (c) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated. (d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information. SEC. 11. Section 2031.220 of the Code of Civil Procedure is amended to read: 2031.220. A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. SEC. 12. Section 2031.230 of the Code of Civil Procedure is amended to read: 2031.230. A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. SEC. 13. Section 2031.240 of the Code of Civil Procedure is amended to read: 2031.240. (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category. (b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. SEC. 14. Section 2031.250 of the Code of Civil Procedure is amended to read: 2031.250. (a) The party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the response under oath unless the response contains only objections. (b) If that party is a public or private corporation or a partnership or association or governmental agency, one of its officers or agents shall sign the response under oath on behalf of that party. If the officer or agent signing the response on behalf of that party is an attorney acting in that capacity for a party, that party waives any lawyer-client privilege and any protection for work product under Chapter 4 (commencing with Section 2018.010) during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response. (c) The attorney for the responding party shall sign any responses that contain an objection. SEC. 15. Section 2031.260 of the Code of Civil Procedure is amended to read: 2031.260. (a) Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original of the response to it on the party making the demand, and a copy of the response on all other parties who have appeared in the action, unless on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, the party to whom a demand for inspection, copying, testing, or sampling is directed shall have at least five days from the date of service of the demand to respond, unless on motion of the party making the demand, the court has shortened the time for the response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. SEC. 16. Section 2031.270 of the Code of Civil Procedure is amended to read: 2031.270. (a) The party demanding inspection, copying, testing, or sampling and the responding party may agree to extend the date for the inspection, copying, testing, or sampling or the time for service of a response to a set of demands, or to particular items or categories of items in a set, to a date or dates beyond those provided in Sections 2031.030, 2031.210, 2031.260, and 2031.280. (b) This agreement may be informal, but it shall be confirmed in a writing that specifies the extended date for inspection, copying, testing, or sampling, or for the service of a response. (c) Unless this agreement expressly states otherwise, it is effective to preserve to the responding party the right to respond to any item or category of item in the demand to which the agreement applies in any manner specified in Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. SEC. 17. Section 2031.280 of the Code of Civil Procedure is amended to read: 2031.280. (a) Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. (b) The documents shall be produced on the date specified in the demand pursuant to paragraph (2) of subdivision (c) of Section 2031.030, unless an objection has been made to that date. If the date for inspection has been extended pursuant to Section 2031.270, the documents shall be produced on the date agreed to pursuant to that section. (c) If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information. (d) Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable. (2) A party need not produce the same electronically stored information in more than one form. (e) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form. SEC. 18. Section 2031.285 is added to the Code of Civil Procedure, to read: 2031.285. (a) If electronically stored information produced in discovery is subject to a claim of privilege or of protection as attorney work product, the party making the claim may notify any party that received the information of the claim and the basis for the claim. (b) After being notified of a claim of privilege or of protection under subdivision (a), a party that received the information shall immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim. (c) (1) Prior to the resolution of the motion brought under subdivision (d), a party shall be precluded from using or disclosing the specified information until the claim of privilege is resolved. (2) A party who received and disclosed the information before being notified of a claim of privilege or of protection under subdivision (a) shall, after that notification, immediately take reasonable steps to retrieve the information. (d) (1) If the receiving party contests the legitimacy of a claim of privilege or protection, he or she may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal. (2) Until the legitimacy of the claim of privilege or protection is resolved, the receiving party shall preserve the information and keep it confidential and shall be precluded from using the information in any manner. SEC. 19. Section 2031.290 of the Code of Civil Procedure is amended to read: 2031.290. (a) The demand for inspection, copying, testing, or sampling, and the response to it, shall not be filed with the court. (b) The party demanding an inspection, copying, testing, or sampling shall retain both the original of the demand, with the original proof of service affixed to it, and the original of the sworn response until six months after final disposition of the action. At that time, both originals may be destroyed, unless the court, on motion of any party and for good cause shown, orders that the originals be preserved for a longer period. SEC. 20. Section 2031.300 of the Code of Civil Procedure is amended to read: 2031.300. If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (b) The party making the demand may move for an order compelling response to the demand. (c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey the order compelling a response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (d) (1) Notwithstanding subdivision (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as a result of the routine, good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. SEC. 21. Section 2031.310 of the Code of Civil Procedure is amended to read: 2031.310. (a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. (b) A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (d) In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense. (e) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (g). (f) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery. (g) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues. (h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (i) Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (j) (1) Notwithstanding subdivisions (h) and (i), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. SEC. 22. Section 2031.320 of the Code of Civil Procedure is amended to read: 2031.320. (a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance. (b) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (c) Except as provided in subdivision (d), if a party then fails to obey an order compelling inspection, copying, testing, or sampling, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (d) (1) Notwithstanding subdivisions (b) and (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (2) This subdivision shall not be construed to alter any obligation to preserve discoverable information. SEC. 23. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to eliminate uncertainty and confusion regarding the discovery of electronically stored information, and thereby minimize unnecessary and costly litigation that adversely impacts access to the courts, it is necessary for this act to take effect immediately.
Category Archives: Duties
ESI: Miami (LegalTech Keynote Summary)
Yes, this post is a summary of what I saw at LegalTech at the Los Angeles Convention Center on Thursday.
No, it didn't take place in Miami. But, if the title said ESI: Los Angeles, nobody would get the joke, would they?
Besides, I would never be able to use this catchy title unless something happened in Miami, and I can't wait that long!
First of all, I'd like to thank Monica Bay. She's a linchpin of LegalTech, and was also nice enough to cite my blog on her own blog, The Common Scold. I had a lot of meetings scheduled, so I was only able to attend the keynote presentation and one other session. This is my summary of the keynote. I'm knee deep in depositions, so I hope to be able to post a summary of the other session on conducting e-discovery abroad over the weekend. Please bear with me. I want to take my time so I can do quality posts for you.
The moderator was Carole Basri from Corporate Lawyering Group, LLC. She's also an Adjunct Professor at the University of Pennsylvania Law School. Next was Tom Allman, a retired general counsel, who is the editor of The Sedona Principles (2nd Edition). Last were two judges – and you know how much I like judges – the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York.
My 1st observation – not a criticism – we're in downtown Los Angeles with AB 5 (the California Electronic Discovery Act) sitting on Gov. Schwarzenegger's desk awaiting his signature. No California or 9th Circuit judges on the panel. Darn!
There was one word that all on the panel agreed was the mantra; cooperation. I've spoken about this before, especially because attorneys are used to the adversarial system, but the judges want the parties to get together and resolve issues between them – not argue everything in court. All this does is bog the process down further. They expect that each party will involve an expert early on in the process, not wait for a disaster before calling one in.
Judge Peck went right into Rule 26(f) (meet & confer). He says most attorneys think they'll only have to have a single meeting, but he sees it as a repetitive process throughout the litigation as the parties cull their issues. He doesn't see how one meeting can accomplish this. Furthermore, he estimates that only 50% of ESI will be revealed through any automated process, meaning the human element cannot be avoided.
He says he's tired of attorneys attempting to do a "drive-by meet & confer", which as you can imagine, results in a lot of problems later.
He briefly addressed some cost issues. To him, it's a "proportionality" argument. There's no point in running up unconscienable costs that will outstrip any award that a party might receive.
He also briefly addressed the issue of international rule conflicts. He summed it up in one word; minefield.
Mr. Allman provided a contrarian voice. He's completely against the cooperation argument. But he has a point, and that is that judges must remember there isn't a single side to any conflict, but two sides. He also said that the idea that a corporation can have a single retention policy is "ludicrous" (that word was used a lot by all of the panel members yesterday). He said the idea behind policy is to ensure that "no relevant info is lost", and this requires a discussion case-by-case, department-by-department, to understand what – and for how long – data must be retained or destroyed. This vindicates the view I stated in my post "Baby? Meet Bathwater…" last month.
Mr. Allman harped on something I think a lot of people don't consider; that there will be "structured" (predictable) data that is easier to identify and control, but there will also be "unstructured" (email, memos, 'informally-produced') data that is much harder to manage.
He is a true-believer, though. He says the entire reason companies should implement these policies is that they will "save costs" in the long run, not increase them. He'll get no argument from me.
Last, he said that based on his observations, even with all of the attention to e-discovery, "awareness is very low".
Judge Waxse scared me. The first thing he said was, taking into account all jurisdictions, there are over 14,000 laws that apply to document retention. He was also less optimistic than Judge Peck in that he believes automatic document review results in only a 20-40% success rate. He attributes this to inexperience of the people tasked to do these searches. They don't interview the principles involved, so they're unaware of the proper search criteria, such as aliases, nicknames, codewords, etc.
Judge Waxse attempts to take some of the confusion out of 26(f) by providing the attorneys with his own comprehensive list.
He also has zero tolerance for attorneys who mislead him. He summed it up in one word; he wants "truthfulness". He says as far as he's concerned, an attorney will get into a lot less hot water if he or she simply admits "We don't know where the data is" rather than obfuscates. Sounds obvious, but he said attorneys lie to him all the time.
On this note, the panel addressed this area in-depth, saying that they would like to see a "culture of ethics" in the handling of e-discovery matters. Some discussion of Rule 502 resulted, in particular, issues such as inadvertent production.
The way the judges see it, issues such as this, confidentiality, producing metadata and clawback agreements should be discussed and agreed-upon by the parties at the outset of litigation. Generally, if a good-fatih inadvertent production has occurred, there's no 502(e) waiver, however, what do you do if it was advertent?
In closing, Judge Waxse explained why he, like many other judges, instructs the attorneys to videotape their meet & confers:
"Lawyers are like particles of physics. They change when observed."
Case Got Your Tongue? “Don’t Tase Me, Bro!!!”
Here I go with my latest summary of lead cases I think are of interest. When it comes to electronic devices that might be subject to e-discovery, I thought I'd thought of everything. I was wrong…
Ford Motor Co. v. Edgewood Properties, 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009)
USE IT OR LOSE IT – This is a classic example of where technical minds weren't properly involved from the outset of litigation and that lack of involvement resulted in a waiver. The Defendant properly sought production of documents in native format with metadata intact. The problem is, Plaintiff complied by delivering the documents in TIFF format. Plaintiff waited six months to request the data again in native format and another two months to make a motion before the court. The court deemed eight months too long and as a result, ruled Defendant waived its right to receive the documents in native format.
I admit I'm inserting my opinion here, but let's face it; the incoming data should have gone straight to a technical mind for immediate analysis. A cursory review would have discovered the issue and Defendant could have addressed it within a reasonable time. On the other hand, if Defendant knew about the issue and was simply tardy in addressing it, shame on them.
McGarry v. Becher, 2009 U.S. Dist. LEXIS 40879 (S.D. Ind. May 13, 2009)
"DON'T TASE ME, BRO!!!" – This potential class-action criminal case may be summed up in one sentence. The court ruled that memory from tasers is both discoverable and not burdensome on the Defendant. Add tasers to your list of electronic devices!
1100 West v. Red Spot Paint and Varnish Co., 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009)
KHARMA CHAMELEON – Don't waste any more time here. Go directly to Ralph Losey's blog, e-Discovery Team (do not pass go and do not collect $200) and read his treatise on this case; the best post about attorney ethics – or lack thereof – I've seen in a long time!
Case Got Your Tongue? Mirror, Mirror & Searching the Forest
Another interesting collection of cases crossed my desk, recently. I'm going to refrain from writing about the "wake-up call" case because it's being cited everywhere. Besides, if anyone hasn't noticed yet, my entire blog is about that. Furthermore, we already know about my issues with waking up…
By coincidence, two of the cases involve mirror-images of disks; however, the issues in each are completely unrelated. Also, we have another illustration of how, when rules aren't followed to the letter, one can destroy a criminal case.
Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL
641297 (D.Colo. Mar. 10, 2009)
YOU GOT IT, I TAKE IT – Plaintiff requested that the court set the protocol for the inspection of the mirror-image of Defendant's hard drive. The court obliged, and in doing so, provided what I think is an excellent guide for anyone undertaking this process.
Forest Laboratories, Inc. v. Caraco Pharm. Laboratories, Ltd., 2009 U.S. Dist. LEXIS 31555 (E.D. Mich. Apr. 14, 2009)
ZUBULAKE – There's only one way to describe this case; Zubulake Duty applies, except when it doesn't…
I can't count how many times on this blog I've referred to how
exceptions to a rule may be more dangerous than the rule itself.
Forest illustrates that point. This falls under the "knew, or should
have known" category. The court is saying that if Plaintiff knew, or
should have known that ESI might be relevant to a dispute in the
future, they should have sought to preserve it – for key employee documents only – contrary to existing
company policy. A tall order. Talk about hindsight!
State v. Dingman, 2009 Wash. App. LEXIS 550 (Wash. Ct. App. Mar. 10, 2009)
This case also involves mirror-images of hard drives. It should serve as a cautionary tale to anyone on the prosecutorial side of the equasion.
The State seized Defendant's computers. Defendant wanted mirror-images of his computers' hard drives in a certain format and the State refused to provide them in that format. The court found this to be prejudicial to Defendant and a violation of his Constitutional rights. Defendant's conviction was overturned.
Still think the 4th, 5th & 6th Amendments don't apply to e-Discovery?
Report to the Principal’s Office!
Here’s the tough part – you’d better be sure which Principal’s office is the correct one. In my prior post, I discussed Principals and Agents from the perspective of both. But this one is for attorneys; and again, I feel this is relevant in the arena of e-discovery because there will be corporations – and individual custodians – involved.
The Wall Street Journal posted this article about a case which serves as a cautionary tale of what may happen when attorneys endeavor to serve multiple masters (note: you may be required to register, but it’s free). Ironically, it involves Broadcom (which we know has been at the hub of some very ground-breaking case law involving e-discovery sanctions).
The issue here is that executives were unsure of exactly who their attorneys were representing. The attorneys represented the corporation, but apparently did not make it clear that they did not represent the executives as well; and I think most of you can understand the inherent conflict of interest that could potentially develop if the interests of both diverge.
This was a critical part of ethics (Professional Responsibility) class in law school and on the bar exam. The graders wanted to make absolutely sure we knew at all times who our particular client was when representing a corporation. As stated above, it’s the corporation, not you. If you think you’re in jeopardy, there’s no middle ground; you must retain your own attorney to protect your interests.
Irell & Manella LLP failed to properly make this distinction clear – and the judge is making them stay after school.
Agent and Principal – Any Interest?
Well, I’m back. It was a fascinating week and as always, I learned something. I didn’t have time to post, but this article about a case involving Principals and Agents caught my eye. At first blush, it may seem like this is for lawyers only, but actually this is just as relevant to those who provide e-discovery services.
Agency and Partnership (as they call the subject in law school) covers the various representative relationships – legal and otherwise – that developed from common law and eventually formed the basis of the business structures we see today. Even though this concept has existed for hundreds of years, California didn’t begin testing the subject until the July 2007 Bar Exam (I was one of the Guinea Pigs).
For our purposes, it’s a great review of the responsibilities between Principals and Agents. The most obvious relationship is lawyer to client, but this also applies to those who provide e-discovery services to clients. The reason I think it’s important is that, with sanctions being a very real possibility in these cases, it’s a good idea to be reminded that this is not a game. What we do – and how we do it – has serious consequences.
Judges to e-Discovery Attorneys: ‘Too Bad, So Sad!’
“Courts Unsympathetic to Electronic Discovery Ignorance or
Misconduct”.
Those were the words glaring back at me from my January 2009 issue of Kroll Ontrack’s Case Law Update and E-Discovery News Practice Points section. It goes on to state (emphasis added):
“This past year highlighted a major trend in cases concerning issues involving the exchange of electronically stored data: an increase in judicial unwillingness to display compassion or tolerance for negligent e-discovery blunders. Courts are increasingly imposing sanctions for discovery misconduct and for the failure to properly preserve and produce electronically stored information (ESI). In fact, of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. A rough breakdown of the issues involved in these cases is as follows:
– 25% of cases
addressed sanctions.
– 20% of cases
addressed various production considerations.
– 13% of cases
addressed preservation and spoliation issues.
– 12% of cases
addressed computer forensics protocols and experts.
– 11% of cases
addressed discoverability and admissibility issues.
– 7% of cases
addressed privilege considerations and waivers.
– 7% of cases
addressed various procedural issues.
– 6% of cases
addressed cost considerations.”
Roughly one in four cases involving e-discovery resulted in sanctions? Stunning! I’m going to assume that my readers don’t intend to commit misconduct, so let’s talk about ‘ignorance’.
Based on the conversations I’ve been having lately, a lot of attorneys don’t even know there’s a standard, yet. Well, if you don’t, here it is:
Courts presume (expect) a level of competence in e-discovery. Great. How do they determine the level? Unfortunately, that’s the slippery slope. It’s being determined every day in courts throughout the nation. The Court expects that if you don’t possess the knowledge, you’ll find someone who does, and if you fail to do so, you’re going to be liable.
Cases? Where do I start? “…willfulness is relevant to the severity of
sanctions imposed, but not to whether sanctions should be imposed.” (Italics added) Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 10, 2008)
This goes to the heart of why I created e-Discovery Insights in the first place. Any reasonable person understands that when you have new rules, there’ll always be latitude for a time until everyone comes up to speed. That time is over. Long over. The Judiciary is telling us that they’ve had enough and are starting to lose patience with parties who flout the rules, and – like it or not – in many cases they’re completely justified.
You do not want to be in front of a judge who has lost their patience. Been there, done that. We’ve already seen the monetary sanctions, but one of these days, an attorney is going to either be suspended or disbarred over an e-discovery foul-up. Don’t be the first.
e-DRiP, e-DRiP, e-DRiP: Who, What, When, Where & Why?
DRP and e-DRP; what are they and what’s the difference? Essentially, they’re one and the same; a Discovery Response Plan (Electronic or otherwise).
I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process. I’ve covered litigation readiness several times and for the purposes of this post, I’ll assume that you’ve followed my prior recommendations to the letter and have a readiness team in place (I’m allowed to assume that because it’s my blog).
That was the easy part.
Now, the alarm bell has sounded – a litigation hold has been ordered in response to – or in anticipation of – litigation. What do you do next? There are a lot of lists out there, but actually, you can envision the path by thinking in terms of ‘who, what, when, where and why’?
WHO? – THE RESPONSE TEAM
You already have the “readiness” team – now you need the “response” team. WHO will be on it? Maybe it’ll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter. You’ll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role. WHO will document the procedures? WHO will serve as your expert witness?
If you’re either anticipating or responding to litigation, then you have a good idea of WHAT data will be involved. If not, start thinking about how to find out. Designate the team members responsible for identifying, accumulating and preserving ESI. WHAT will it cost to review and produce? Will that factor into the proceedings?
WHEN?
WHEN did you issue the litigation hold? WHEN did the relevant custodians receive the notice? WHEN will you expect acknowledgment from them? WHEN are the relevant dates at issue in the action and WHEN did they begin preserving that data? WHEN will you issue periodic reminders to the custodians to assure continued compliance with the hold? WHEN will the hold be released?
WHERE?
WHERE’S the ESI? Refer to your data map so you know WHERE you’ll be looking. WHERE are the ‘nooks & crannies’; essentially anyWHERE that relevant ESI may exist (hint: it might not be on your map). WHERE will you store the ESI for review? Do you have sufficient space in-house or will you need an outside vendor?
WHY?
WHY is the ESI relevant to the action and therefore discoverable? WHY should it be produced? WHY is it privileged?
HOW?
Depending on what stage you have reached in your own readiness and response programs, you may be asking yourself HOW you’re going to accomplish all of this. It might not be easy, but there are resources available to you and proper planning in advance will go a long way to assure an even flow.
e-Discovery Resolutions: Law
Best wishes for a safe, healthy and prosperous 2009!
Fellow attorneys, we lost the coin-toss…but think of it this way, by virtue of being ‘second’, our post ends up ‘first’, so it’s really a lose-win…
Besides, I’m a techie and an attorney – I was gonna win either way…
1. KNOW WHAT YOU DON’T KNOW
Nobody expects you to be an expert. Who am I kidding? Of course they do! The problem is, an expert on what? You can learn the law, but in order to be effective, you need to know something about technology (otherwise, you’re really going to annoy the techies when you talk to them). Would it hurt to learn a little bit about how things work? The resources are available – use them! Go to IT and ask them to educate you, or educate yourself.
If I can do it, so can you…after all, you’ve got to know your limitations…
2. BROADEN YOUR THINKING
This is on the ‘Technology’ list, too, and for good reason. Do you know what encompasses ESI at your
clients’ enterprise? Where is it? Do they have access to it? What if it’s on
someone’s personal equipment? What if it’s on the ‘web’? What about your adversary? Are they being forthcoming about their ESI? How will you ascertain that? Remember,
you’re not just issuing and answering subpoenas here, you’re also looking for
exculpatory information on your clients’ own systems. The blade cuts both ways.
3. KNOW YOUR CASE LAW
This is uncharted territory. Everyone is learning as they go – including judges. If you’re not keeping up with changes in case law, you’re eventually going to get yourself into trouble. There are several resources at your disposal that will email the cases to you on a regular basis. Subscribe to one and stay current!
4. KNOW YOUR STATE LAW
We tend to think about e-discovery rules in Federal form. A lot of what we do involves national and multi-national corporations – and they’re ‘everywhere’. Their disputes won’t necessarily be Federal in nature; and we may also have to deal with ‘choice of law’ issues. No matter what your jurisdiction, state e-discovery rules may be in play. It’s your responsibility to know which states have implemented proprietary rules and how they affect your case. And be on the lookout for states with e-discovery rules on the horizon.
5. BE KIND TO THE TECHIES
A lot of people treat technology support like they do the dial-tone on a telephone; when they pick up the handset, they expect it to be there no matter what. Remember, techies spend a lot of their time trying to explain complex technology to people who don’t always understand it, yet are responsible for 1) managing it, 2) paying for it and/or 3) using it on a daily basis. Sometimes the frustration shows. Don’t just bark requests at them – be specific and work with them to understand what you need and whenever possible, why you need it.
Ready, Set, Litigate!
Litigation readiness. What does that mean? Sure, I can state clearly that it means you’re ready to respond to a litigation hold; maybe “prepared” would be a better word. What about everything that follows? How ready are you?
I break it up into five possible scenarios:
- No lawsuit in sight, but you want to be ready for the future
- Plaintiff – you sue someone
- Defendant – someone sues you
- Internal – Plaintiff and Defendant are within the same organization (e.g. employee suing employer or vice versa)
- Third Party – you’re drawn into a complaint between other parties (e.g. impleader)
How do you get the conversation started when there are so many reasons to put it off?
- “I don’t know what the big deal about ESI is.”
- “We don’t have it in the budget.”
- “We don’t have time to deal with it right now – try again next cycle.”
- “We’ll deal with it if and when a problem arises.”
Fortunately, most of us recognize that if one waits until an issue arises, it’s already too late. Receiving a subpoena is not an ideal time to find out that you can’t comply. It’s also a short-sighted view. You may need your own ESI to bolster your case, no matter what side of the action you’re sitting on. Perhaps that’s the argument to make when attempting to motivate management to act.
If that doesn’t work, there’s always the fact that trying to do anything in a piecemeal fashion results in much higher cost. And if that doesn’t work, management needs to understand that they have duties to uphold – and it’s very easy to violate them when you’re not aware of the rules (oh, and the court won’t necessarily absolve you for being ignorant of the rules – there is a presumed level of competence).
Litigation isn’t just segregated to a small portion of a company. It requires activating resources from all over the enterprise; HR, IT, Legal (internal and external), Management, etc. Ever tried getting all of these parties in a room for a meeting? I have. Depending on what everyone has on their plate at that particular moment in time, it can take weeks!
Do you really want to be dealing with this at the last minute? What about e-discovery software? What
about storage? Who will review the ESI? What about your adversary? Do you have the expertise to know that they’re complying with your ESI requests in good faith? Who will oversee all of this?
The problem with this discipline is that it’s hard to know what questions to ask unless everyone who has a hand in the process is in the same room. It’s like smashing the atom. One question generates a whole host of other questions and before you know it, you’ve opened Pandora’s Box.
Start with question #1 – who belongs in the room?
If you have policies in place, everyone knows their responsibilities. When a litigation hold is issued, duties are already pre-defined. This is critical, because when they say “hold”, they mean “hold“.
Will your response be more like The A-Team, or the Keystone Cops?