Trademark Examples

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Where Does Your Data Live?
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Where Does Your Data Live?
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FRCP Rule 26(a)(1) Initial Disclosures

• a party must, without awaiting a discovery
  request, provide to other parties
• (A) the name of each individual likely to have
  discoverable information that the disclosing
  party may use to support its claims or defenses
• (B) a copy of, or a description by category and
  location of, all documents, data compilations,
  and tangible things that are in the possession,
  custody, or control of the party and that the
  disclosing party may use to support its claims or
  defenses, unless solely for impeachment.

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FRCP Rule 26(b)(1) Scope of Discovery

• Parties may obtain discovery regarding any
  matter, not privileged, that is relevant to the
  claim or defense of any party, including the
  existence, description, nature, custody,
  condition, and location of any books, documents,
  or other tangible things and the identity and
  location of persons having knowledge of any
  discoverable matter.

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FRCP Rule 26(b)(2) Limitations on Scope of
Discovery

• use of the discovery methods shall be limited
  by the court if it determines that
• the discovery sought is unreasonably cumulative
  or duplicative, or is obtainable from some other
  source that is more convenient, less burdensome,
  or less expensive
• the party seeking discovery has had ample
  opportunity by discovery in the action to obtain
  the information sought or
• the burden or expense of the proposed discovery
  outweighs its likely benefit, taking into account
  the needs of the case, the amount in controversy,
  the parties' resources, the importance of the
  issues at stake in the litigation, and the
  importance of the proposed discovery in resolving
  the issues.

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FRCP Rule 34 Production of Documents

• Any party may serve on any other party a request
  (1) to produce and permit the party making the
  request, or someone acting on the requestor's
  behalf, to inspect and copy, any designated
  documents (including writings, drawings, graphs,
  charts, photographs, phonorecords, and other data
  compilations from which information can be
  obtained, translated, if necessary, by the
  respondent through detection devices into
  reasonably usable form)within the scope of Rule
  26(b) .

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FRCP Rule 30(b)(6)Deposition Upon Oral
Examination

• A party may name as the deponent a public or
  private corporation or a partnership or
  association or governmental agency and describe
  with reasonable particularity the matters on
  which examination is requested. In that event,
  the organization shall designate one or more
  officers, directors, or managing agents, or other
  persons who consent to testify on its behalf, and
  may set forth, for each person designated, the
  matters on which the person will testify.

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E-Discovery Fundamentals

• Consider policies concerning
• retention and destruction of documents and
  records
• actions in the event of impending litigation
• Litigation Hold
• When a party reasonably anticipates litigation,
  it must suspend its normal document
  retention/destruction policies and preserve
  relevant documents
• Generally does not apply to inaccessible backup
  tapes devoted to disaster recovery
• If content of backup tapes is identifiable,
  should maintain for key players

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E-Discovery Fundamentals

• Effective Communications
• counsel needs to communicate with client
  especially KEY PLAYERS when litigation is
  reasonably foreseeable
• educate as to litigation hold policies
• See Zubulake IV 220 FRD 212
• communicate upon discovery request
• continue to communicate throughout process

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E-Discovery Fundamentals

• Counsel needs to understand IT systems
• Education in advance of problems with IT support
  staff to know the design and limitations of
  system
• Consider involvement of counsel in the design or
  selection and implementation of backup systems