Archive: December 8, 2006

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Dawson Quoted in Widely Carried AP Article
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Parties Agree That Responsive ESI To Be Collected From Defendant’s Active IT Environment, And Not From Backup Tapes

Dawson Quoted in Widely Carried AP Article

The Associated Press recently turned to partner Martha Dawson as a source on new electronic discovery rules. The article, “Companies Face New Rules on Keeping Data,” appeared in national publications from The New York Times and The Wall Street Journal to other regional and online publications.

The new rules require that lawyers meet much earlier in the discovery process to discuss where the client’s data is stored and how accessible it is. This provision emphasizes the importance of being prepared ahead of time. Writes the AP reporter:

But Martha Dawson, a partner at the Seattle-based law firm of Preston Gates & Ellis LLP who specializes in electronic discovery, said companies will not have to alter how they retain their electronic documents. Rather, she said, they will have to do an “inventory of their IT system” in order to know better where the documents are. The new rules also provide better guidance on how electronic evidence is to be handled in federal litigation, including guidelines on how companies can seek exemptions from providing data that isn’t “reasonably accessible,” she said. This could actually reduce the burden of electronic discovery, she said.

Parties Agree That Responsive ESI To Be Collected From Defendant’s Active IT Environment, And Not From Backup Tapes

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

This constitutes the parties’ agreed order and statement as to a document management plan in this multi-district litigation concerning two prescription drugs. Among other things, the parties agreed that plaintiffs would preserve the hard drives of computers used by plaintiffs and plaintiffs’ decedents, and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol. The parties also agreed that responsive electronically stored information (“ESI”) would be collected by defendants from defendants’ active IT environment, and that “absent some exceptional circumstance and a demonstration by plaintiffs of some substantial need, defendants shall not be required to restore any backup tapes (specifically including but not limited to the 35 back-up tapes defendants made on April 29, 2005, specifically for purposes of this litigation).” The parties agreed that defendants would preserve the 35 backup tapes, but that they may otherwise resume the recycling of backup tapes.

Plaintiffs also agreed to defer to defendants as to the format of production, and specifically agreed to take ESI produced by defendants in any format that generally is searchable and manageable, including in native file format or as single page TIFF images with associated metadata.

The parties were unable to reach agreement on three subject areas, and those matters would be subject to further briefing and argument. Those disputed topics include: (1) how the cost of the discovery plaintiffs seek from defendants should be apportioned; (2) the scope of discovery relating to the production of entire electronic databases; and (3) whether plaintiffs should be allowed to perform their own forensic examination of plaintiffs’ computer hard drives, or whether an independent forensic consultant should perform the analysis.

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