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The Bankruptcy StrategistLJN NewslettersNewsSections

Are You Prepared for e-Discovery?

By Dan P. Sedor and David M. Poitras
October 26, 2009

Bankruptcy courts, practitioners, trustees and examiners are facing a new reality with which many federal court litigants and their counsel are already painfully familiar: The dire economic and legal consequences of failing to properly identify, preserve, collect, review and produce relevant ESI electronically stored information (ESI).

The identification, preservation and collection of ESI in bankruptcy must comply with the requirements of the revamped Federal Rules of Civil Procedure, incorporated in bankruptcy cases by the Bankruptcy Rules, which were amended effective Dec. 1, 2006 to expressly cover early disclosures relating to ESI and the discovery of ESI. In brief:

  • Rule 26(b)(2)(B) requires a two-tiered approach to discovery that distinguishes between ESI that is and is not reasonably accessible. This requires you to know specifically what ESI the person or entity in question has, where it is, how it is stored and how much it will cost to access.
  • Rule 26(f)(3) requires the parties to have a potentially detailed discussion during the early meeting of counsel regarding the forms in which they are going to produce their ESI. To participate meaningfully, you need to know what data you have, what its native attributes are, and whether it can and ought to be produced in image format instead of its native format, i.e., in the electronic format of the application software in which the data was created.
  • Rule 26(f) contains a new requirement that the parties discuss issues relating to preservation of ESI, and Rule 37(f) contains a new so-called safe harbor for the routine, good faith destruction or deletion of responsive data. These provisions also require you to know what ESI you have, where it is, how it is stored, and what policies and procedures are used to implement, enforce and lift litigation holds.

The identification, preservation, col- lection and review of ESI during e-discovery should not be a reactive process undertaken at the last minute before production. Instead, the methodologies for the process should be thought through carefully as early in the proceeding as possible, even before demands for the production of ESI are received. Starting the process of ESI management early in the litigation and doing it with care will help to provide sufficient time to test the efficacy and efficiency of the identification, preservation, collection and review methods, and to identify and correct any problems that arise during the process.

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