May 05 2008
The Walls of “Not Reasonably Accessible”
New York, NY - May 5th, 2008
After recently reading an article by Jeff Beard in the February/April edition of Litigation Support Today I thought that it might make some sense to touch upon it here at On the Mark.
Jeff raises interesting points and shares his thoughts on ESI, Rule 26, Inaccessibility, Backup tapes and VMware among other things. Interesting stuff for sure. And the points he’s making I don’t disagree with. I think Jeff gets it right.
However, one thing I didn’t notice and it is something I don’t see very often at all, in almost all the articles that appear in the blog-o-sphere, and that is the absence of any reference to FRCP Rule 1.
That’s right, Rule Number 1.
Mark, where are you going with this? For all the talk about FRCP 26(f) and the “Meet and Confer” my friend Conor Crowley likes to remind people about the first rule.
Some believe that Rule 1 is actually the “Mission Statement” of the FRCP and I would agree.
(..the rules) “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”
INEXPENSIVE? You mean, like CHEAP? How’d that one sneak by us? I never hear anyone talk about that.
There’s some very interesting text to read in the Committee notes and while Jeff highlights those obligations of the responding party, once they’ve thrown down the gauntlet of “Not Reasonably Accessible” (and successfully demonstrated WHY), it’s also important to note that many nowadays contend the burden can then be swung BACK to the requesting party to demonstrate WHY they need it, regardless of the burden to the responding party. FRCP 26(b)(2)(c)(iii)
Parties in “symmetrical” litigation and by that I mean both parties with relatively equal amounts of potentially responsive or relevant ESI
should know that this is a double edge sword. And that brings me back to Rule 1 and the word INEXPENSIVE!
Maybe now the old adage of “Be Careful of What You Ask For (you might just get it)” could also be amended to say “Be Careful of What You Ask for (you might just have to give it, too or be asked to show WHY you need it in the first place)”
Again, I want to make sure to compliment Jeff on a nice piece and take a moment to mention his blog, LawTech Guru and to congratulate Jeff on his new position with EED. Congrats Jeff.
For all those out there who find themselves in the quandary of having to go-to and restore back-up tapes, I’ll take a second to inform On the Mark readers of MetaLINCS’ brother company, SRS - Seagate Recovery Services is a leader in tape restoration and forensic tape and hard disk recovery. They’re quite an impressive group IMHO.
Have a good week.
On the Mark
One Response to “The Walls of “Not Reasonably Accessible””
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Mark, thanks for the kind words and the insightful commentary on Rule 1.
I think it simply tends to get lost in all the concerted efforts and focus on compliance with the other Rules, including sanction avoidance.
We’ve all seen recent cases in which the discovery sanctions have been much more expensive than a decision on the merits alone, relatively speaking (recognizing the two are intertwined under the rules, e.g., an adverse inference often heavily influences the decision on the merits).
Thus parties and their counsel have the thankless task of deciding where to best spend their money for the desired outcome.
-Jeff Beard
[These comments are solely my personal opinions and viewpoints. They do not represent or reflect (nor are they intended to represent or reflect) the positions, opinions, viewpoints, policies and/or statements of my employer or any other entity or person.]