N.D. Cal. 26(f) ESI Checklist

The United States District Court for the Northern District of California has posted a checklist on its site, for parties to consult when addressing ESI issues at Rule 26(f) meet and confer.

The preservation of ESI concerns not only ascertaining a relevant date range and the identity of relevant custodians, but preparing a list of systems that contain data not associated with individual custodians and deciding to stop data destruction programs.

The parties should prioritize discovery from specific systems - whether it be email, accounting or other systems.

A specific e-discovery liaison should be appointed.

In weighing whether or not the cost of electronic discovery will be proportional to the amount of claims involved, the parties should consider sharing an e-discovery vendor and using a common platform to host their data.

The ESI for the custodians most likely to have relevant data should be in the first phases of discovery.

The production should not degrade the, "inherent searchablility of ESI".

Rules for the Redaction of Trial Transcripts

The Federal Rules of Civil Procedure set down specific guidelines for the redaction of trial transcripts. The following information must be redacted from a transcript:

1. Social security numbers (the last four digits can be left unredacted).

2. Birth dates (the year can be left unredacted).

3. The names of minor children (initials can be used).

4. Financial account numbers (the last four digits can be left unredacted).

See, Fed. R. Civ. P. 5.2(a). The parties have 7 days from the filing of the notice of the filing of the official transcript to file a notice to request the redaction of these four types of information from the transcript. A copy of the notice must be served on the reporter. See the example posted on the site of the United States District Court for the Southern District of New York.

A statement indicating what is to be redacted must be filed 21 days after this notice. Guidelines posted to the sites of the United States District Court for the Eastern District of North Carolina and United States District Court for the District of Colorado indicate that statements should contain references in this form:

Social Security Number 123-45-6789 on page 12, line 9 should be redacted to read xxx-xx-6789.

The United States District Court for the Southern District of New York has posted a form on its site which breaks the information down in a chart:

If the parties wish to redact any other information, they must file a motion to do so within the same 21 day period. After an order has been issued for further redactions, the reporter then performs the redactions by the date stated in the order. The redacted version of the transcript (or the original if no redactions are performed) is released on PACER after 90 days. Only attorneys who pay for transcripts, and court users can have access to the transcript before this 90-day period is up, unless the public terminal at the courthouse is used to view the transcript.

Some courts restrict access to the transcript of the voir dire proceeding in order to avoid the need to request the redaction of the personal information of jurors.

7th Circuit Makes Paralegal Pay Big Law

Late last month, the United States Court of Appeals for the Seventh Circuit issued a decision, Stephens v. Baker & McKenzie, Nos. 18‐2375 & 18‐2963 (7th Cir. Apr. 26, 2019) affirming a district court ruling granting the defendant's motion for attorney's fees and its motion to strike a defamatory filing. Among other lessons that can be drawn from this decision, it shows how strictly the federal courts will enforce discovery obligations under Rule 37.

The appellant was employed as a paralegal with Baker & McKenzie. Her suit alleged that she was fired because reported being sexual harassed and mocked on the basis of her Russian ethnicity. She sought $200 million in compensatory, emotional and punitive damages.

Stephens failed to comply with two discovery requests. The first concerned information about how she gained access to the firm's confidential listserv (which she accessed after she left). The second asked that she account for the damages she demanded. Rather than answer either of these requests, Stephens asked the court to dismiss her suit, even though she was given the option to seek $100,000 in damages instead. The lower court, "ruled that whether Stephens had used a confidential listserv for personal reasons was relevant to Baker & McKenzie’s defense, so it ordered Stephens either to explain how she acquired the list or surrender her computer so the firm could investigate." Id. at 4. Stephens explained that she did not want Baker to have access to her computer.

The defamatory filing was Stephens' response to a motion to compel, which McKenzie never had a chance to reply to because the suit was dismissed. Baker was awarded more than $35,000 in fees. The Seventh Circuit rejected Stephens' appeal specifically because of her refusal to comply with the court's discovery order. It cited Federal Rule of Civil Procedure 37(b)(2)(C) which requires a party rejecting such an order to pay, "reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

The Seventh Circuit also rejected an appeal of the motion to strike, holding that the district court's broad discretion to strike filings allowed it to strike a filing the plaintiff abandoned and which the court never actually considered.

So even when a paralegal goes up against one of the biggest law firms in the country, she or he may still held accountable for failing to take discovery obligations seriously.