When lawyers are arguing over whether documents were properly withheld from production on the basis of attorney-client privilege, one side or the other will often say "let’s have the Judge do an in camera review." (Translation for nonlawyers reading this blog: let’s drop all these documents on the Judge and let him or her decide).
There isn’t much out there in the way of a road map from North Carolina’s state courts on how lawyers should fulfill their obligations to produce electronically stored information. So you might want to take notice of a little bit of direction in today’s Order from the Business Court in Hill v. StubHub, Inc.
In cases in the Business Court, the lawyers are often assisted by computer forensics experts in dealing with electronic discovery issues. That’s becoming almost essential in complicated business cases.
Anyone can do this type of work right now. I get regular phone calls and emails from people pitching this type of work. But there is regulation in the…
The small Arizona town of Sedona is one of the centers of the e-discovery universe, and the Sedona Conference’s Best Practices for dealing with electronic discovery issues have been favorably referenced by many Courts, including the North Carolina Business Court (see here and here).
Now, the Conference has put out a Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible. Why should you care about that?
The answer is that the term "reasonably accessible" is contained in Rule 34 of the Federal Rules of Civil Procedure, governing document production, which says that "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." (North Carolina Rule 34, last amended twenty-one years ago with a quill pen, contains no such language).
The new Commentary contains detailed guidelines for determining how to make the determination of accessibility, and when electronic information should be preserved. The Guidelines themselves are below, from the Electronic Discovery Law blog (which is a great resource for court decisions on e-discovery matters) but the Commentary itself contains many useful examples and case citations and is worth reading. Continue Reading Electronically Stored Information: New Sedona Principles On Preservation Of ESI