A Bill of Rights for E-Discovery

Sometimes you write something that strikes a chord and the hits go off the charts. That’s a good day. Other times, you pen something you’re proud of and the silence is deafening. Two years ago, I wrote a column putting forward a Bill of Rights for E-Discovery that set out expectations and obligations of requesting parties. As we used to say back in New York, “ya coulda hoid a pin drop.” Since it fell flat before, you may wonder why I’d trot it out again. Truth is, I still think it’s the germ of something worthwhile. Perhaps I missed the mark, but someone needs to hit it; and I keep hoping it might be something like this:

I am a requesting party in discovery.

I have rights.

I am entitled to:

1. Production of responsive ESI in the format in which it’s kept in the usual course of business. A producing party’s fear of alteration, desire to affix Bates numbers or preference for TIFF images doesn’t trump my right to receive the evidence in its native or near-native form.

2. Clear and specific identification of any intentional alteration of ESI made in the discovery process. If, e.g., a producing party omits attachments or redacts content or metadata, the producing party must promptly disclose the alteration with sufficient detail to permit me to assess whether such action was warranted.

To Continue Reading: Click Here

------------------------------------------------------

Source: Ball in your court

By: Craig Ball