Electronic Discovery Law

Jicarilla Apache Nation v. United States, 60 Fed.Cl. 413 (2004)

In a case involving claims by a Native American Indian tribe against the United States based upon the government's mismanagement of trust funds, the court entered a confidentiality agreement and protective order which provided, among other things:

• "[R]ecord" means any book, bill, calendar, chart, check, compilation, computation, computer or network activity log, correspondence, data, database, diagram, diary, document, draft, drawing, e-mail, file, folder, film, graph, graphic presentation, image, index, inventory, invoice, jotting, journal, ledger, machine readable material, map, memo, metadata, minutes, note, order, paper, photograph, printout, recording, report, spreadsheet, statement, summary, telephone message record or log, transcript, video, voicemail, voucher, webpage, work paper, writing, or worksheet, or any other item or group of documentary material or information, regardless of physical or electronic format or characteristic, and any information therein, and copies, notes, and recordings thereof.
• Unless otherwise agreed to in writing, the party responding to discovery requests shall produce records in the format in which that party routinely uses or stores them, provided that electronic records shall be produced along with available technical information necessary for access or use thereof by the requesting party.
• If the requesting party is unable to access or use electronic records in the format used by the responding party, the parties shall try to agree on an electronic format that would be accessible or useable by the requesting party.
• If the responding party asserts that direct access to electronic records in a database or other electronic collection would be inappropriate, the parties shall try to agree on a protocol that will provide adequate information regarding the organization and structure of such records so that the requesting party can review such records or portions thereof for which the responding party does not assert privilege or protection from disclosure.
• If the requesting party is unable to access or use or is denied direct access to an electronic record, it may request that the responding party provide a paper version of or underlying source data for the electronic record.
• Copies of electronic records, when practicable, shall include the word CONFIDENTIAL in the file name and in a conspicuous place on the exterior of the CD-ROM, diskette, or other medium containing the record copies.

The order also required the parties to conduct privilege reviews and provide privilege logs within a reasonable time after receipt of a request for records; the order defined such reasonable period of time not to exceed 60 days unless otherwise agreed by the parties or ordered by the court.